THE EUROPEAN OMBUDSMAN

ANNUAL REPORT 2005 COMPILATION OF DECISIONS

EN

SPECIAL REPORT FROM THE EUROPEAN OMBUDSMAN TO THE EUROPEAN PARLIAMENT FOLLOWING THE DRAFT RECOMMENDATION TO THE EUROPEAN COMMISSION IN COMPLAINT 1391/2002/JMA............................................................................................................................ 6 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2107/2002/(BB)PB AGAINST THE EUROPEAN COMMISSION .................................................................................................................. 22 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2111/2002/(BB)MF AGAINST THE EUROPEAN COMMISSION .................................................................................................................. 30 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1336/2003/IP AGAINST THE EUROPEAN COMMISSION............................................................................................................................ 41 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1435/2003/MF AGAINST THE EUROPEAN COMMISSION............................................................................................................................ 53 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1687/2003/JMA AGAINST THE EUROPEAN COMMISSION............................................................................................................................ 68 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2097/2003/(ADB)PB AGAINST THE EUROPEAN PERSONNEL SELECTION OFFICE............................................................................. 77 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2188/2003/OV AGAINST THE EUROPEAN COMMISSION............................................................................................................................ 88 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2191/2003/(AJ)TN AGAINST THE EUROPEAN COMMISSION .................................................................................................................. 95 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2229/2003/MHZ AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 111 SPECIAL REPORT FROM THE EUROPEAN OMBUDSMAN TO THE EUROPEAN PARLIAMENT FOLLOWING THE DRAFT RECOMMENDATION TO THE COUNCIL OF THE EUROPEAN UNION IN COMPLAINT 2395/2003/GG ...................................................................................................... 123 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2411/2003/MHZ AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 136 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2415/2003/JMA AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 145 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 127/2004/OV AGAINST THE EUROPEAN PARLIAMENT.......................................................................................................................... 151 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 140/2004/(BB)PB AGAINST THE EUROPEAN ANTI-FRAUD OFFICE............................................................................................................ 167 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 224/2004/PB AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 181 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 237/2004/JMA AGAINST THE COUNCIL OF THE EUROPEAN UNION.................................................................................................... 198 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 274/2004/JMA AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 204 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 295/2004/JMA AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 211

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 338/2004/OV AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 219 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 471/2004/OV AGAINST THE COUNCIL OF THE EUROPEAN UNION.................................................................................................... 230 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 518/2004/MF AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 241 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 530/2004/GG AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 249 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 538/2004/TN AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 264 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 620/2004/PB AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 283 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 628/2004/OV AGAINST THE EUROPEAN PARLIAMENT.......................................................................................................................... 306 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 732/2004/ELB AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 313 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 758/2004/ELB AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 320 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 839/2004/(AJ)MHZ AGAINST THE EUROPEAN PERSONNEL SELECTION OFFICE........................................................................... 335 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 933/2004/JMA AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 342 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 948/2004/OV AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 351 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1096/2004/(AJ)TN AGAINST THE EUROPEAN COMMISSION ................................................................................................................ 364 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1155/2004/TN AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 377 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1273/2004/GG AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 385 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1298/2004/PB AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 419 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1365/2004/TN AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 430 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1368/2004/GG AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 438 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1423/2004/ELB AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 461 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1700/2004/MF AGAINST THE EUROPEAN INVESTMENT BANK.............................................................................................................. 468

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1733/2004/OV AGAINST THE EUROPEAN PARLIAMENT.......................................................................................................................... 478 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1737/2004/TN AGAINST THE EUROPEAN PARLIAMENT.......................................................................................................................... 487 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1756/2004/MF AGAINST THE EUROPEAN PARLIAMENT.......................................................................................................................... 494 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1772/2004/GG AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 505 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1798/2004/PB AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 517 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1808/2004/JMA AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 521 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2038/2004/(LH)GG AGAINST THE EUROPEAN PARLIAMENT ................................................................................................................ 533 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2066/2004/TN AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 539 SPECIAL REPORT FROM THE EUROPEAN OMBUDSMAN TO THE EUROPEAN PARLIAMENT FOLLOWING THE DRAFT RECOMMENDATION TO THE EUROPEAN ANTI-FRAUD OFFICE IN COMPLAINT 2485/2004/GG .......................................................................................................................... 549 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2673/2004/PB AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 569 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2821/2004/OV AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 577 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2862/2004/GG AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 586 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 3054/2004/TN AGAINST THE EUROPEAN CENTRAL BANK..................................................................................................................... 601 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 3110/2004/GG AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 606 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 3254/2004/(JMA)(OV)ID AGAINST THE EUROPEAN COMMISSION ............................................................................................. 621 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 3381/2004/TN AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 632 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 3442/2004/PB AGAINST THE EUROPEAN INVESTMENT BANK.............................................................................................................. 639 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 3446/2004/GG AGAINST THE EUROPEAN ANTI-FRAUD OFFICE............................................................................................................ 651 DECISION OF THE EUROPEAN OMBUDSMAN ON JOINT COMPLAINTS 3452/2004/JMA ET AL. AGAINST THE EUROPEAN COMMISSION ............................................................................................. 664

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 3485/2004/OV AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 670 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 3622/2004/GG AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 672 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 116/2005/MHZ AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 678 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 501/2005/IP AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 688 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1266/2005/MF AGAINST THE EUROPEAN COMMISSION.......................................................................................................................... 692 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1875/2005/GG AGAINST THE COUNCIL OF THE EUROPEAN UNION.................................................................................................... 697 DECISION OF THE EUROPEAN OMBUDSMAN ON OWN-INITIATIVE INQUIRY OI/3/2005/OV AGAINST THE EUROPEAN COMMISSION ............................................................................................. 709

Special Report from the European Ombudsman to the European Parliament following the draft recommendation to the European Commission in complaint 1391/2002/JMA

(made in accordance with Article 3 (7) of the Statute of the European Ombudsman(1))

SUMMARY The complaint concerns the failure of the European Schools to cater for the special educational needs of the complainant's daughter. Since the European Schools could not meet those special needs, the complainant was compelled to take her daughter to an alternative education system, the costs of which were not entirely covered by the Commission. Instead, the institution required the complainant to make a financial contribution to the cost of her daughter's special education. Following his inquiry into the case, the Ombudsman took the view that the integration of children with special educational needs (SEN children) into the ordinary education system remains a general policy goal, albeit without a mandatory character. In the absence of a binding legal provision, the Ombudsman did not find that the fact that the complainant's daughter could not be educated in one of the European Schools constituted maladministration. The Ombudsman nevertheless found that the financial aspects of the situation constituted an unjustified discrimination, and made a draft recommendation that the Commission should take the necessary steps to ensure that parents of SEN children who are excluded from the European Schools because of their degree of disability should not be required to contribute to the educational costs of their children. The Commission's detailed opinion as well as the additional information sent by its services do not accept unequivocally the draft recommendation. Nor do these documents indicate that the Commission appears willing to reverse its current policy on charging officials for the education of their SEN children. After fully examining the Commission's arguments, the Ombudsman considers it appropriate to make a Special Report on the matter to the European Parliament and to include a recommendation therein. In the course of the inquiry into complaint 1391/2002/JMA, the Ombudsman received a significant number of additional complaints which involved similar facts and raised identical allegations. The Ombudsman also informed the Commission of these complaints. The Ombudsman therefore considers that the analysis in this Special Report and the recommendation also apply to these complaints, which are listed in an annex to this report.

THE COMPLAINT On 25 July 2002, a Community official whose daughter is mentally handicapped complained to the Ombudsman. According to the complainant, the relevant facts are, in summary, as follows: In September 1997, the complainant's daughter joined the European School Brussels II centre in the Woluwe area. Following the advice of her teachers, she had to follow speech and occupational therapy. In the school years 1998-99 and 1999-2000, she received assistance under the European School's special programme for children with special educational needs (henceforth SEN children). In June 2000, the European School decided, acting on the advice of its SEN children's committee, that it could no longer provide for the special educational needs of the complainant's daughter. Despite the complainant's requests to allow her daughter to continue her education at the European School, its Board of Directors considered that the child had to go to a different school, which could cater for her special educational needs. In September 2000, the complainant's daughter joined the Special Education Unit of the International School of Brussels. As regards the academic year 2000-2001, the total annual cost of this special education amounted to EUR 28 550 (EUR 26 800 for School fees and EUR 1 750 for transportation costs). On 19 April 2002, the Commission's DG Administration decided that the complainant should be required to pay 5% of these costs (i.e. EUR 1 447 24), to be deducted from her salary. According to the complainant, the European Schools have failed in their responsibility to provide a suitable educational programme for SEN children of officials. She referred to the Statute of the European Schools which provides that the role of these institutions should be to promote the education of children of the staff of the European Communities in order to ensure the proper functioning of the European Institutions. The complainant notes that nowhere in the texts is it mentioned that some disabled children can be excluded because of their disabilities. The Commission is partly responsible for the situation, because it has a seat on the Board of Governors of the European Schools and is in charge of the implementation of the school's budget. The complainant considers that the requirement to make a financial contribution to her daughter's education is discriminatory, since parents with SEN children in the European Schools are not required to make such a contribution. The complainant also argues that the Commission, as her employer, failed to carry out its duty to ensure a free education for her child.

In summary, the complainant puts forward the following allegations: (i) The European Schools have failed to provide suitable education programmes for all EU officials' children who have special educational needs. (ii) The Commission's decision requiring her to make a financial contribution for the education of her daughter is discriminatory. (iii) The Commission should make clear in all published information concerning the European Schools that some SEN children can be excluded.

THE INQUIRY The Commission's opinion In its opinion of 6 January 2003, the Commission addressed each of the allegations made by the complainant: Education for SEN children to be provided by the European Schools Under the Convention of 17 June 1994 establishing the European Schools, the Schools are not Community bodies but integrated establishments in an educational system common to all Member States, under the authority of the Board of Governors. The European Community contributes towards the operating expenses of these Schools and is a Member of the Board of Governors. The European Schools, unlike most national education systems which have special centres for disabled children, only comprise ordinary educational establishments. Despite this limitation imposed by the Boards of Governors, the European Schools are sympathetic towards the difficulties faced by SEN children. Since 1987, they have striven to ensure that these children are integrated. For this purpose, certain structures have been put in place such as remedial courses and guidance centres. Since 1989, each school has included an "advisory group" composed of a teaching team, which assesses the extent to which the specific needs of each child can be catered for in the normal classroom environment of the school. The advisory group submits its report to the Head, who consults the two competent inspectors before deciding whether or not to admit a SEN child to the school. When a child is not admitted, the parents may appeal to the chair of the learning support committee, the final decision resting with the representative of the Board of Governors. As a result of the Commission's intervention, the section of the Schools' budget devoted to SEN children has doubled from 1996, and rose to EUR 1 400 000 in 2002.

As regards the particular case of the complainant's daughter, the advisory group for SEN children of the European School Brussels II decided in June 1998 to provide her with special support courses. This support was renewed in June 1999. In June 2000, the SEN advisory group reached the conclusion that the child was unable to benefit from the education offered by the European Schools. On 6 June 2000, the school advised her parents that she should be placed in an educational centre more appropriate for her specific needs. Upon the complainant's requests to have the decision reconsidered, the Commission lodged a formal complaint with the Board. It was concluded that the ordinary education system of the European Schools could not satisfy the needs of all SEN children. According to the information provided by the European School Brussels II (Woluwe), the case of the complainant's daughter was reviewed in accordance with the rules governing the European Schools. The Commission considered that the policy of the European Schools concerning the integration of disabled children was not discriminatory and that its centre in Woluwe (European Schools Brussels II) had done everything that it could in accordance with existing policy and procedures. Discriminatory nature of financial contributions to be made by parents of certain SEN children The Commission explained that in its role as employer, it supplies financial support for the parents of SEN children by providing two forms of assistance: Statutory assistance, as in the case of family allowances. An official can be granted double the normal dependent child allowance if his or her child is disabled. Officials receiving the double allowance are automatically granted tax relief, and medical expenses arising from a disability are reimbursed at the rate of 100%. Additional contribution made towards the costs arising from a disability, by means of budget line A-4103 ("supplementary aid for the disabled"). The Commission noted that the distribution of this type of aid is governed by Article 5a of the provisional guidelines for implementing budget line A-4103 adopted in 1999 by the Heads of Administration.

If an official applies for assistance under budget line A-4103, Article 5a of the provisional guidelines stipulates that he/she must make a contribution depending on taxable family income as laid down in Annex II to the provisional guidelines. In the case of the complainant, the financial contribution came to 5% of the expenses incurred. Supplementary aid for the disabled is intended to provide extra assistance for the costs incurred because of a disability. It should not be confused with arrangements constituting an alternative to the education system existing in the European Schools.

Information provided by the Commission to parents with SEN children The Commission services are in contact with the European Schools with a view to deciding what measures should be taken to integrate SEN children. The Commission will continue its efforts to make the representatives of the European Schools aware of the need to provide parents of SEN children with information. It will also ensure that such details are included in the information given to new officials and other servants both before they take up their posts in the Commission and when they start work. The complainant's observations In her observations, the complainant considered that if the European Schools are unable to cater for some SEN children, their budget should entirely finance the education of those children in an alternative centre. In her view, the European Schools ought to negotiate agreements with local/international schools to provide an appropriate education for all SEN children, as is the case in most Member States. The "statutory allowance" or doubled child allowance provided by the Commission has to be deducted from the amount which the complainant is required to pay for the education of her daughter. That deduction does not apply when the child is admitted to the European Schools. On the basis of the Commission's statistics, the complainant pointed out that the European Schools' average expenditure for a SEN child is EUR 11 111, whereas average expenditure for a SEN child on the A-4103 budget line is EUR 9 315. In order to correct this disparity, the complainant suggested that the European Schools should cover all educational costs of SEN children who have to be transferred to an alternative establishment. In the complainant's view, the Commission, in its role as Guardian of the Treaties, should ensure implementation of Community legislation on combating all types of discrimination on the sole grounds of disability. She argued that the actions of the European Schools are in breach of Article 14 of the Charter of Fundamental Rights of the European Union which guarantees the right to education. Accordingly, the complainant considered that the European Schools have failed in their responsibility to provide a suitable education for SEN children of EU officials. 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(2) 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, by requesting a contribution from the complainant to the educational costs of her SEN child who had been excluded from the European Schools

10

because of her degree of disability, the Commission did not ensure respect for the principle of equal treatment. By letter dated 9 July 2003, the Ombudsman therefore proposed that the Commission should take the necessary steps to ensure that the complainant was not required to contribute to the educational costs of her child. In its reply of 22 October 2003, the Commission explained that a working party reporting to the inter-institutional Committee for the preparation of social measures (CPAS) should be proposing to the Heads of Administration certain changes involving the current guidelines on additional help for disabled people. Among other things, it will be suggesting that the topped-up part of dependent child allowances no longer be deducted from the costs incurred. If approved, the new scheme was to enter into force on 1 January 2004. The Commission argued that a complete exemption of the complainant from any contribution to the educational costs of her child -as the Ombudsman had proposedwould only be justified if the present regime could be viewed as discriminatory. In the Commission's view, this was not the case because parents of children who cannot attend a European School, in particular for pedagogical reasons, must also look for alternative schools, subject to charges which are only partly reimbursed or sometimes not reimbursed at all. Thus the requirement for parents to contribute to the costs of their children's education is not necessarily linked to disability. The Commission, therefore, took the view that the additional financial contribution should be regarded as non-discriminatory. The institution pointed out that if disabled children are excluded from the European Schools, it is not because of their disability, but because the severity of their disability is beyond the schools' ability to cope with them. As a result, some of these children will have to be directed towards other structures. Since the cost of such structures is much higher, having regard to the existing budgetary limits, a limited contribution is required of parents, based on the family's financial situation. The financial assistance associated with the costs of a private school and granted to the complainant's disabled child is made up of a statutory element (double dependent child allowance plus lumpsum and non-standard education allowances) and a non-statutory element ("supplementary aid for the disabled"; budget line A-4103). Parents are required to make a contribution to these costs as part of the non-statutory element (i.e. additional assistance for persons with disabilities). In the case of the complainant, the Commission restated that this amount is 5% of the total cost. According to the Commission's estimates, the total annual cost amounted to EUR 32 700, of which EUR 32 456 were borne by the institution. However, as outlined earlier, the Commission announced its intention to further decrease the financial burden for the complainant. The Ombudsman forwarded the Commission's reply to the proposal for a friendly solution to the complainant. In her reply, she restated the facts of the case, and

11

underlined that the obligation to contribute to her daughter's education was linked to the fact that she is a disabled child. The complainant argued that the Commission's references to future initiatives are irrelevant, since the case before the Ombudsman concerns the situation and circumstances of her daughter for whose education she has been asked to contribute since the year 2000. In contrast to the figures referred to by the Commission, the complainant noted that her contribution amounts to EUR 5 638, namely 15% of the total costs. The complainant contested the Commission's argument that the additional financial contribution she was required to make was nondiscriminatory. In her view, the question of whether children have to leave the European School for a variety of reasons is immaterial. The situation in this case concerns a child who was refused an education because of her disability, and thus was asked to pay for part of her education. The discrimination occurs purely because of her disability. The complainant argued that the fact that the Commission abides by the letter of existing guidelines or rules cannot suffice to justify the situation, since the applicable guidelines or rules may themselves be discriminatory. The complainant also expressed her astonishment that the Commission should, in the year of the disabled, feel the need to defend the European Schools' exclusionist policy and practice, rather than take action in support of its own policies regarding discrimination. In her view, the Commission has been guilty of a complete neglect of its responsibilities to its staff and their dependants in this regard. The draft recommendation By decision dated 27 February 2004, the Ombudsman addressed a draft recommendation to the European Commission in accordance with Article 3 (6) of the Statute of the Ombudsman. The basis of the draft recommendation was, in summary, as follows: 1. The complainant alleges that the Commission's decision requiring her to make a financial contribution for the education of her daughter is discriminatory. The complainant argues that parents with children with special educational needs (SEN children) who are admitted to the European Schools should not be required to contribute to the cost of their children's education. 2. The Commission argues that the scheme applied by the European Schools for SEN children is not discriminatory. It considers that parents of children who cannot attend a European School for, in particular, pedagogical reasons, must also look for alternative schools, subject to charges which are only partly reimbursed or sometimes not reimbursed at all. Thus the requirement for parents to contribute to the costs of their children's education is not necessarily linked to disability. The Commission also states that, in its role as employer, it supplies financial support for the parents of disabled children. It grants both statutory assistance by means of double the normal dependent child allowance, as well as additional contributions made towards the costs arising from a disability. In the latter case, this aid is governed

12

by the provisional guidelines for implementing budget line A-4103, adopted in 1999 by the Heads of Administration. If potential beneficiaries apply for assistance under budget line A-4103, Article 5a of the provisional guidelines stipulates that the official must make a contribution depending on taxable family income as laid down in Annex II. 3. The Ombudsman notes that, in line with the decisions of the European Schools' Board of Governors, it appears that the children of staff in the service of Community institutions for a minimum period of one year have the right to be admitted to the European Schools. These pupils are exempt from school fees(3). Hence, EU officials who have the possibility to send their children to the European Schools, including those with SEN children whose needs can be met by the European Schools, do not have to make any contribution to the costs of their education. In contrast, the Commission does not cover the full educational costs of SEN children who are excluded from the European Schools because of their degree of disability. 4. The Ombudsman points out that the principle of non discrimination and equal treatment is a fundamental principle of Community law. As laid down in Article 21 of the Charter of Fundamental Rights of the European Union(4) and in Article 13 of the EC Treaty(5), any type of discrimination based, among others, on grounds of disability is prohibited. 5. On the basis of the available information, the Ombudsman considers that the different financial treatment which the Commission gives to officials with SEN children who are excluded from the European Schools is based solely on grounds of disability and is therefore discriminatory. The fact that the difference of treatment affects only some parents of SEN children does not alter its character as discrimination. Furthermore, the fact that some children of EU officials are excluded from the European Schools for reasons other than disability is immaterial. The evidence available to the Ombudsman from his inquiry is that the exclusion of certain children from the European Schools for pedagogical reasons is not based on grounds explicitly prohibited by Community law. The factual and legal circumstances of such children are therefore not comparable to those of SEN children who are excluded from the European Schools because of their degree of disability. 6. The Ombudsman concludes, therefore, that the different financial treatment provided by the Commission to officials with SEN children who are excluded from the European Schools because of their degree of disability is discriminatory and consequently constitutes an instance of maladministration.

13

The Ombudsman therefore made the following draft recommendation: The Commission should take the necessary steps to ensure that parents of SEN children who are excluded from the European Schools because of their degree of disability are not required to contribute to the educational costs of their children. As regards the aspect of the complaint which concerned the alleged failure of the European Schools to provide suitable education programmes for all SEN children of EU officials, the Ombudsman noted that the development of policies for the inclusion of SEN children into mainstream schools appears to be a prominent trend, as illustrated by one of the recent reports published by the European Agency for Development in Special Needs Education(6). Existing practices among Member States, however, show a great deal of variety. Whilst some EU Member States such as Spain, Greece, Italy, Portugal, and Sweden have set out a fully integrated educational system which caters for all needs of SEN children, other European countries still retain a multi-track approach which combines separate mainstream and special needs education systems(7). In view of the existing legal and practical situation in the EU, it appeared that the integration of SEN children into the ordinary education system still remains a general policy goal, without a mandatory character. The Ombudsman pointed out that he was not aware of any binding legal provision requiring the Commission or the European Schools to set up a unified system. In the absence of any such legal provision, the Ombudsman could not conclude that the Commission had failed to act properly by not ensuring that the European Schools provide education programmes for all SEN children of EU officials. The Ombudsman therefore concluded that there appeared to be no maladministration as regards this aspect of the case. The Ombudsman recalled, however, that the Commission had given an undertaking in its Communication of 12 May 2000 to make all necessary efforts to ensure that the European Schools integrate all pupils with disabilities into its mainstream classes. In connection to the complainant's allegation that the Commission failed to make clear in all published information concerning the European Schools that some SEN children can be excluded, the Ombudsman took note of the Commission's assurance that all necessary steps would be undertaken to provide officials with SEN children with appropriate information on the means of assistance at their disposal, and the conditions attached to them. He therefore concluded that no further inquiry in relation to this aspect of the case seemed to be necessary. Additional complaints sent to the Ombudsman In the course of the inquiry, and once the Ombudsman had already sent his draft recommendation to the Commission, he received a significant number of additional complaints which involved similar facts and raised identical allegations. A list of these complaints is annexed to this report.

14

The Commission was informed of these complaints and asked to submit an opinion on them. The institution chose to jointly reply to all of them through its own detailed opinion in case 1391/2002/JMA. The European Commission's detailed opinion After a number of requests for the deferral of the deadline to reply to the draft recommendation, the Commission submitted its detailed opinion on 18 August 2004. The Commission stated that its detailed opinion replied both to the Ombudsman's draft recommendation and to the individual complaints concerning the same problem which the Ombudsman had subsequently received. In summary, the Commission's detailed opinion made the following points: As regards the financial contributions to be paid by EU officials with SEN children excluded from the European Schools, the Commission referred to the amendments to the Staff Regulations which entered into force on 1 May 2004, which include a new Article 1d. This provision prohibits any form of discrimination based, among other, on grounds of disability. Paragraph 4 of that article, however, allows the appointing authority to take the necessary measures to enable a person with a disability to take on a position as an official if those initiatives do not impose a disproportionate burden. The principle of proportionality which governs relations between the appointing authority and the person who could potentially be appointed as an official should also be taken into account mutatis mutandis in relation to the obligations of the appointing authority towards the disabled child of an official. Furthermore, the Commission noted that Article 3 of Annex VII of the Staff Regulations (concerning the education allowance) now makes a distinction between the parents of children who attend schools which do not charge fees (such as the European Schools) and the parents of children who attend fee-paying schools. Only the parents of children enrolled at a fee-paying school now benefit from an education allowance. This new provision enables all children who want to or have to enter a private/special school to receive a flat-rate payment which will be gradually increased. The Commission argued that the exclusion of disabled children from the European Schools is not a matter of principle but results from the fact that the integration of disabled children into the school environment goes beyond the material resources available. Since Article le of the amended Staff Regulations introduces the obligation to give officials access to measures of a social nature, it is possible that, under this provision, steps could be taken to reinforce measures which benefit the children of officials who find themselves in situations of the kind described in the complaint. The Commission noted that the scheme in place allows for the dependent child allowance to be doubled when the child concerned suffered from a handicap which imposes a heavy financial burden on the official (Article 67(3)). In addition, the allowance could be maintained, irrespective of age, if the child has a serious illness or

15

invalidity which prevents him/her from earning a livelihood. A supplementary allowance for disabled persons could also be granted, which, subject to the limits imposed by the budget, covers the bulk of the school fees which are not reimbursed, leaving the beneficiary to make a personal contribution (between 5% and 35%) calculated on the basis of the taxable income of the family concerned. As regards the complainant, the institution pointed out that these additional allowances covered 99% of all costs she incurred for the education of her daughter. The institution therefore considered that the existing measures are appropriate and sufficient to offset the costs imposed on the parents by their children's disabilities. The Commission once again stressed that it is not under a legal obligation to reimburse the total costs arising from a disability, solely because the principle of nondiscrimination has been invoked. In the area covered by the Staff Regulations, this principle is subject to limitations, in particular, of a financial nature such as those mentioned above. Moreover, the institution noted that its expenditure to cover the costs of educating disabled children at private schools usually goes far beyond the average expenditure with respect to children who attend the European Schools. As regards the possibility of financing measures of a social nature, as referred to in Article le of the amended Staff Regulations, the Commission indicated that this provision does not guarantee that costs relating to a disabled child should be covered in all cases. As budgetary resources are limited, the Commission does not have the possibility to cover all costs. It noted that the number of applications received has been constantly increasing. Since 2003, the appropriations earmarked under the budget have not been sufficient to cover existing applications. In 2003, an additional EUR 420 000 were allocated to the budget heading concerned. The budget thus increased from EUR 750 000 in 2003 to EUR 1.1 million in 2004, representing an exceptional increase of 40%. Since then, five new applications have been submitted. As social policy aimed at disabled people is a priority, the Commission expressed its willingness to propose a "multi-annual programme" to the budgetary authority in order to give maximum possible budgetary security to this type of measure. The idea may be put forward in the proposals which the Commission will submit to the budgetary authority for the 2006 preliminary draft budget, on the basis of Article 1e of the Staff Regulations. The institution expressed its intention to mention the Ombudsman's position in this matter when its proposals are prepared and submitted to the budgetary authority. The Commission also noted that, if the Ombudsman were to approach the budgetary authority directly, this could help ensure that a policy is introduced concerning the reimbursement in full of costs incurred by the parents of disabled children. If its proposals were to be accepted by the budgetary authority, the Commission agreed to make a full reimbursement of costs arising from a disability, even though it underlined that no obligation exists to reimburse this type of costs. Otherwise, the institution would have to make the necessary adjustments, and set out a number of criteria and priorities.

16

The Commission therefore concluded by stating that the measures undertaken are appropriate and sufficient to offset the effects of these children's disabilities. The institution stated its intention to take the necessary steps to obtain the essential support from the budgetary authority, so that children who demonstrably need to enter a special school can receive the greatest possible financial support. The complainant's observations on the Commission's detailed opinion In her observations on the Commission's detailed opinion, the complainant repeated the allegations which she had already put forward. She considered that the Commission continued to hide behind their existing policies as regards discrimination. In her view, the proposals and suggestions supported by the institution are far from providing the compulsory free education which her daughter is entitled to receive. The complainant contested the figures presented by the Commission. She argued that, despite the good intentions announced by the Commission through a new set of policies, the plain fact appears to be that investment per SEN child had decreased from EUR 47 500 in 1995 to EUR 12 362 in 2003/2004. In relation to her personal expenditures for the education of her daughter, the complainant pointed out that, since 2000, she had spent EUR 19 205. The European Commission's additional information On 22 December 2004, the Commission's newly appointed Director General for Personnel and Administration, Mr Claude Chne, wrote to the Ombudsman, in connection with the development of a new social policy for Commission officials. The Director General restated the ideas set out in the Commission's detailed opinion and underlined both, his personal commitment and that of Mr Kallas, Vice-President of the Commission responsible for Administration, in favour of EU officials with SEN children. He announced that the Commission's multiannual social policy programme will include a section in support of SEN children, which will be submitted to the Commission in mid-2005. Details of the programme and the special section should be made known at that time. The Director General also noted his readiness to increase as much as possible the amount to be reimbursed to parents of SEN children, although it remains to be seen how and when full reimbursements could be granted. The financial impact of those future initiatives is still unknown, although it is foreseen that the current budgetary allocation for social policy will not be able to cover those needs, and therefore that a significant increase in the level of resources ought to be envisaged. In view of future potential budget limitations, the Director General acknowledged that he was not in position to make a firm commitment, but underlined his personal willingness and that of Vice-President Kallas to support officials with SEN children to the largest extent possible.

17

The Ombudsman's evaluation of the Commission's detailed opinion The Ombudsman's draft recommendation was intended to guarantee that the Commission would not discriminate financially against officials with SEN children who are excluded from the European School because of their degree of disability. The Ombudsman regrets that the Commission's detailed opinion does not allow for the conclusion to be reached that this objective has been achieved. The Ombudsman recalls that the Commission has argued that, on the basis of the new Staff Regulations, it can take into account financial considerations when carrying out measures aimed at combating discrimination on grounds of disability. The Ombudsman notes that, as enshrined in the Charter of Fundamental Rights of the European Union and in the EC Treaty, the principle of non-discrimination and equal treatment, and the prohibition of any type of discrimination based, among others, on grounds of disability, constitute nowadays the foundations of the EU legal order. In the Ombudsman's view, the nature and significance of the rights granted to disabled people as a result of these legal principles makes it necessary to scrutinize carefully any potential limitation on their application which, accordingly, ought to be narrowly interpreted. The Ombudsman, therefore, is not convinced by the Commission's interpretation of the Staff Regulations whereby its power to limit the introduction of new measures because of their financial impact, which is laid down in Article 1d.4 concerning the accommodation of new disabled officials, should also apply to any other measure involving people with disabilities, such as those regarding the education of SEN children of EU officials. It appears that Article 1d.1 of the Staff Regulations unequivocally sets out a general principle prohibiting any discrimination based on disability(8). Since the appointment of a new official is subject, however, to the condition that he/she is fit to perform his/her duties, Article 1d.4 of the Staff Regulations defines how this restriction is to be interpreted if the person to be appointed suffers from a disability(9). Accordingly, it is to be understood that a disabled person should be able to perform the essential functions of the job if reasonable accommodation can be made available by the employer, provided that such measures do not impose a disproportionate burden. This provision is clear and precise, and it is confined to the recruitment of officials. There is no reason therefore to infer that it should be applied across the board to any other situation concerning the treatment of officials in connection with a situation of disability. The Ombudsman notes that the Commission has repeatedly referred to the existence of financial and budgetary limitations which appear to prevent it from covering the full educational costs of SEN children excluded from the European Schools. The Ombudsman finds it most striking, however, that, in the course of his inquiry, the institution has made no effort to produce any estimate which may have illustrated the size of those limitations, such as the number of officials affected by the situation or the costs that a change of policy may entail.

18

The Ombudsman appreciates the positive remarks made in the letter from the Director General for Personnel and Administration, Mr Claude Chne, concerning his personal willingness and that of Vice-President Kallas to support officials with SEN children to the largest extent possible. The Ombudsman also welcomes the new measures announced in the Commission's detailed opinion in favour of the disabled children of officials, in particular those to be developed under a multiannual social policy programme. Regrettably, details of that initiative and its scope are still not known. While acknowledging that those measures should improve the situation, the Ombudsman is mindful of the fact that they do not appear to eliminate unambiguously any discrimination against officials with SEN children who are excluded from the European School because of their degree of disability. The Ombudsman acknowledges the Commission's invitation to approach the budgetary authority in order to ensure that a policy is introduced concerning the reimbursement in full of costs incurred by the parents of disabled children. The Ombudsman takes the view, however, that it is not for him to intervene directly in this type of budgetary procedures. Instead, the Ombudsman considers it more appropriate to submit, in exercising his powers, a special report on this matter to the European Parliament, as a means of drawing this issue to the attention of the Parliament, not only in its role as an institution charged with the responsibility of scrutinising the actions of the Commission but also as part of the Community budgetary authority. The Ombudsman's recommendation In view of the above, the Ombudsman re-states his draft recommendation as a recommendation to the Commission as follows: The Commission should take the necessary steps to ensure that parents of SEN children who are excluded from the European Schools because of their degree of disability are not required to contribute to the educational costs of their children. The Ombudsman considers that his recommendation should also apply to the additional complaints which he has received in the course of his inquiry involving similar facts and identical allegations. The European Parliament could consider adopting the recommendation as a resolution. Strasbourg, 27 May 2005

P. Nikiforos DIAMANDOUROS

19

Annex Additional complaints received by the European Ombudsman concerning alleged discrimination against SEN children of EU officials by the European Commission: Complaints 447/2004/JMA (13 February 2004); 457/2004/JMA (6 February 2004); 500/2004/JMA (19 February 2004); 501/2004/JMA (20 February 2004); 522/2004/JMA (23 February 2004); 523/2004/JMA (20 February 2004); 593/2004/JMA (27 February 2004); 596/2004/JMA (27 February 2004); 597/2004/JMA (29 February 2004); 598/2004/JMA (26 February 2004); 599/2004/JMA (1st March 2004); 891/2004/JMA (23 March 2004); 892/2004/JMA (23 March 2004); 893/2004/JMA (23 March 2004); 894/2004/JMA (23 March 2004); 895/2004/JMA (23 March 2004); 896/2004/JMA (20 February 2004); 897/2004/JMA (23 March 2004); 898/2004/JMA (23 March 2004); 899/2004/JMA (23 March 2004) and 1535/2004/JMA (25 May 2004).

------------------------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 113/15 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.
(3) (2) (1)

Decision of the Board of Governors of the European School of 27-28 October 1992 (http://www.eursc.org/SE/htmlEn/IndexEn_home.html).

Article 21 (1) Charter of Fundamental Rights of the European Union (OJ C 364, 18.12.2000, p. 1): "Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited." Article 13 EC Treaty: "[...] the Council [...] may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation." See European Agency for Development in Special Needs Education, "Special Needs Education in Europe", January 2003 (Electronic version of the report available on the European Agency's website: www.european-agency.org).
(7) (6) (5)

(4)

Supra, Special Needs Report, point 1.1, p. 7.

20

(8)

"In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited."

"A person with a disability meets the conditions laid down in Article 28(e) if he can perform the essential functions of the job when reasonable accommodation is made."Reasonable accommodation", in relation to the essential functions of the job, shall mean appropriate measures, where needed, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer."Article 28 (e) of the Staff Regulations states that an official may be appointed only on condition that he is physically fit to perform his duties.

(9)

21

Decision of the European Ombudsman on complaint 2107/2002/(BB)PB against the European Commission

Strasbourg, 7 July 2005

Dear Mr B., On 3 December 2002, you made a complaint to the European Ombudsman concerning the application of an age limit in the European Commission's traineeship programme. On 31 December 2002, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 20 March 2003. On 28 March 2003, I forwarded it to you with an invitation to make observations, which you sent on 4 April 2003. On 17 October 2003, I made a proposal for a friendly solution in your case, and on that same date sent you a copy of my letter to the Commission. The Commission sent me its reply to my proposal for a friendly solution on 28 November 2003. I sent you a copy of the Commission's reply to my proposal for a friendly solution on 19 December 2003, with an invitation to make observations. You sent your observations on 2 January 2004. On 15 June 2004, I made a draft recommendation to the Commission, a copy of which I sent to you on that same date. The Commission sent its detailed opinion on my draft recommendation on 13 August 2004, stating that it was internally discussing the possibility of implementing the draft recommendation in the context of a general amendment to the rules on its traineeship programme. I forwarded a copy of the Commission's opinion to you, inviting you to submit observations. No observations were received from you. On 13 January 2005, I made further inquiries, asking the Commission to inform me about any progress in implementing the draft recommendation, and I informed you on that same date. The Commission replied to my further inquiries on 29 March 2005, and I forwarded a copy of the reply to you with an invitation to make observations by 31 May 2005. No observations were received from you by that date. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The complaint was submitted by a student at the Copenhagen Business School. The complainant stated that it was part of his course to do a traineeship of 3-6 months, and
22

that he had inquired into the possibility of doing so at the European Commission. The complainant, who was forty years old at the time of submitting his complaint, had noticed that the Commission applied an age limit of 30 to trainees. He therefore wrote to the European Ombudsman, alleging that the use of an age limit for trainees constituted age discrimination and was contrary to the Charter of Fundamental Rights of the European Union. He claimed that the age limit should be abolished.

THE INQUIRY The Commission's opinion In its opinion, the Commission made the following comments: The programme of in-service training offered by the Commission was not a prerecruitment programme but a work experience programme, and as such the trainees did not have the same responsibilities as Commission officials, nor were they paid a salary (but received a standard grant). The number of applications from well-qualified candidates always far exceeded the number of places available. It was addressed to young graduates who are at the beginning of their careers. In this case, the age limit was objectively justified and was therefore non- discriminatory and in conformity with Article 21 of the Charter of Fundamental Rights of the European Union, which forbids discrimination inter alia on the grounds of age. However, exemptions were granted from the age limit rule, provided that a covering letter was sent with the application requesting such an exemption and with a good justification for it. There were several criteria, which the Head of the Traineeship Office had to consider when granting exemptions. Examples of such criteria were: extensive long-term studies, private circumstances (e.g., military service, severe illness, care of a close relative during long or terminal illness, etc.) or a combination of professional experience and specialised studies relevant to a particular area of work within the Commission. It was evident that each case was judged on the basis of its own merits. The complainant had not submitted an application or a request for an exemption from this age limit. It was therefore not possible at the time of the opinion to say whether or not his application would be accepted, or whether an exemption would be granted in his favour. The complainant's observations The Commission's opinion was forwarded to the complainant, who maintained his complaint.

23

THE OMBUDMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the opinion and the complainant's observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegation. The proposal for a friendly solution 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 therefore made the following proposal for a friendly solution to the Commission: The European Commission could take action to avoid the appearance of discrimination and arbitrariness by reconsidering the selection criteria for its training programme in order to avoid any reference to the age of candidates. This proposal was based on the Ombudsmans preliminary conclusion that decisions by the Commission to grant exemptions to the age limit rule could appear arbitrary because the non-exhaustive list of "good justifications" for exemption referred to in the Commission's opinion did not appear to be based on any clear and objective principles. The Commission's opinion In its reply of 28 November 2003, the Commission reiterated that its traineeship programme was aimed at young university graduates in the beginning of their professional career. It was therefore addressed to and mainly focussed on young persons. Youth, the Commission stated, should obviously be defined by age, and certain age limits were therefore required. The Commission also noted that all the other European Institutions applied an age limit in their traineeship programmes. The complainant's observations The Commission's opinion was forwarded to the complainant, who maintained his allegation and claim.

24

THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation On 15 July 2004, the Ombudsman addressed the following draft recommendation to the Commission: The Commission should abolish the age limit in its traineeship programme. This draft recommendation was based on the following considerations: 1. The complaint concerned the rules governing in-service training periods with the Commission, which explicitly mentioned an age limit of 30 years. The complainant alleged that the age limit constituted age discrimination and was contrary to the Charter of Fundamental Rights of the European Union. 2. In its opinion, the Commission argued that the age limit of 30 years was objectively justified because the Commission's in-service training programme was aimed at young people at the beginning of their careers, and that the age limit was therefore nondiscriminatory and in conformity with Article 21 of the Charter of Fundamental Rights. 3. Following receipt of the complainant's observations on the Commission's opinion, the Ombudsman examined the case and concluded that the Commission's use of an age limit for training periods with the Commission appeared to be discriminatory and arbitrary. The Ombudsman therefore proposed a friendly solution, suggesting to the Commission that it avoid any reference to the age of candidates. The Ombudsman's finding was based on the following considerations: Article 21 of the Charter of Fundamental Rights states that: "Any discrimination based on any ground such as [...] age [...] shall be prohibited". According to the established case law of the European Court of Justice, a difference in treatment is discriminatory if it is not justified by objective factors(2). In its opinion, the Commission had explained that exemptions were granted for the age limit rule and had provided a list of "good justifications". The list of examples did not appear to be based on any clear and objective principles. Thus, decisions by the Commission to grant or refuse exemptions to the age limit rule could appear arbitrary. 4. The Commission rejected the Ombudsman's proposal for a friendly solution, making, in summary, the following points: 1. One of the main objectives of the Commission's traineeship programme was to provide practical working knowledge to young university graduates in the beginning of their professional career.

25

2. All the other institutions apply an age limit in their traineeship programme. 3. The Commission applied no age limit to its other traineeship programmes not aimed at young persons. 4. Of the 21 437 applications received for the training periods March 2003 March 2004, only 20 requests for age exemptions (0,09%) were refused, whereas 277 requests were actually granted. 5. Establishing a detailed and comprehensive list of objective reasons on the basis of which exemption could be granted would entail the risk of excluding objective reasons for exemption. 5. The Ombudsman carefully examined the Commission's arguments, and came to the following conclusions: 1. As regards the Commission's first point, the Ombudsman took note of the fact that the Commission's traineeship programme was aimed at university graduates, which is a legitimate objective. The Commission had not, however, explained why it considered it to be justified to discriminate between 'young' and 'old' university graduates. 2. As regards the Commission's observation that all other institutions apply an age limit in their traineeship programme, the Ombudsman pointed out that there were examples of training programmes at the European Union level where no age limit was provided for in the rules governing those programmes(3). 3. As regards the Commission's reference to its other traineeship programmes where no age limit was applied, the Ombudsman welcomed the fact that no such limit was applied to those programmes. This could not, however, influence the Ombudsman's finding on the use of an age limit in the programme here concerned. 4. The Ombudsman noted that the proportion of applications where age was an issue appeared to be very small. This, in the Ombudsman's view, indicated that removing the age limit would be unproblematic. Doing so would furthermore eliminate the need to deal with requests for exemptions and thereby simplify the administrative tasks of the Commission. 5. As regards the Commission's concern about the effects of trying to establish a comprehensive list of objective reasons on the basis of which exemption could be granted, the Ombudsman pointed out that his proposal for a friendly solution was that the Commission should remove the age limit, not that it should establish a comprehensive list of reasons for exemptions. The Ombudsman furthermore noted that the difficulties of establishing a list of exemptions,

26

referred to by the Commission, suggested that it would be more expedient to eliminate the need for such a list of exemptions by removing the age limit. In the light of these findings, the Ombudsman maintained his conclusion that the age limit in the Commission's traineeship programme constituted unjustified discrimination, and accordingly made the draft recommendation referred to above. 6. For the purpose of its response to the draft recommendation, the Ombudsman furthermore invited the Commission to also reconsider its position in the light of its commitment to promote lifelong learning, as set out in its Communication on "Making a European Area of Lifelong Learning a Reality"(4). The Commission's opinions In its detailed opinion on the draft recommendation, the Commission stated that its rules governing in-service training were under review and that it was examining the question of abolishing the age limit in line with the Ombudsman's draft recommendation. On 13 January 2005, the Ombudsman made further inquiries, asking the Commission to inform him about progress in implementing the draft recommendation. The Commission replied on 29 March 2005, stating that it had adopted a new decision on the rules governing its traineeship programme, and that the new rules contained no age limit. The rules would be applicable as from 1 March 2005. The Commission enclosed a copy of its new decision. Recital (7) of the Commission's decision refers to the fact that the Ombudsman stated in his draft recommendation that the Commission should abolish the age limit in its traineeship programme. Article 1.1 of the Annex to its decision states that "[t]hese rules govern the official traineeship scheme of the Commission of the European Union. This scheme is addressed mainly to young graduates, without excluding those who - in the framework of lifelong learning - have recently obtained a university diploma and are at the beginning of a new professional career". The complainant's observations The Ombudsman forwarded a copy of the reply to the complainant with an invitation to make observations. No observations have been received from the complainant.

THE DECISION 1. Allegation of unfair discrimination 1.1 The complaint concerned the rules governing in-service training periods with the Commission, which explicitly mentioned an age limit of 30 years. The complainant

27

alleged that the age limit constituted age discrimination and was contrary to the Charter of Fundamental Rights of the European Union. 1.2 In its opinions on the complaint and on the Ombudsman's proposal for a friendly solution, the Commission argued that the age limit of 30 years was objectively justified because the Commission's in-service training programme was aimed at young people at the beginning of their careers, and that the age limit was therefore nondiscriminatory and in conformity with Article 21 of the Charter of Fundamental Rights. 1.3 On 15 June 2004, the Ombudsman addressed a draft recommendation to the Commission according to which the latter should abolish the age limit in its traineeship programme. 1.4 On 29 March 2005, the Commission informed the Ombudsman that it had adopted a new decision on the rules governing its traineeship programme, and that the new rules contained no agelimit. The rules were applicable as from 1 March 2005. 2. Conclusion 2.1 On the basis of his inquiries, the Ombudsman concludes that the Commission has accepted the Ombudsman's draft recommendation and that the measure taken by the Commission is satisfactory. 2.2 The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision.

FURTHER REMARK The Ombudsman is aware that several other Community institutions and bodies apply an age limit in their traineeship programmes. The Ombudsman will therefore launch an own-initiative inquiry into these programmes. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsmans Duties, Official Journal 1994 L 113, p. 15.
(1)

28

(2)

Case C-171/88, Rinner-Khn [1989] ECR 2743, paragraph 12.

Cf. the conditions referred to on the websites of the Translation Centre for the Bodies of the European Union (http://www.cdt.eu.int) and EUROJUST (http://www.eurojust.eu.int). The Ombudsman's rules, which also contain no age limit, are available on http://www.euro-ombudsman.eu.int. Communication from the Commission on "Making a European Area of Lifelong Learning a Reality" (COM(2001) 678 final, available on : http://europa.eu.int/comm/education/policies/lll/life/communication/com_en.pdf
(4)

(3)

29

Decision of the European Ombudsman on complaint 2111/2002/(BB)MF against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 6 January 2005

Dear Mr X., On 2 December 2002, you made a complaint to me against the European Commission, on behalf of your communication company. Your complaint concerned the decision of the Commission Representation in France to cancel its financial commitment of EUR 94 850 relating to your project on communication strategies of the Commission in relation to the enlargement of the European Union. On 31 December 2002, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 24 March 2003. On 28 March 2003, I forwarded it to you with an invitation to make observations which you sent on 11 May 2003. On 29 November 2003, you sent me an e-mail in which you requested information on the progress on the treatment of your complaint. On 12 December 2003, I informed you that your complaint was being dealt with. On 15 December 2003, my services contacted you by telephone with a view to discussing a possible friendly solution concerning your complaint. On 4 February 2004, I submitted a proposal for a friendly solution to the Commission. You were informed accordingly in a letter sent the same day. The Commission sent its opinion on this proposal on 16 March 2004. I forwarded this opinion to you on 7 April 2004 for your observations which you sent on 15 April 2004. On 24 May 2004, I requested further information from the Commission. On 15 June 2004, the Commission sent me its reply. On 30 June 2004, a copy of the Commission's reply was forwarded to you by fax, with an invitation to make observations, which you sent on the same day, by e-mail. On 20 September 2004, I addressed a draft recommendation to the Commission. You were informed accordingly in a letter sent the same day.
30

On 4 November 2004, you sent me further correspondence in relation with your complaint. On 30 November 2004, the Commission sent me its opinion regarding my draft recommendation. I forwarded it to you on 14 December 2004 with an invitation to make observations which you sent on 21 December 2004. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The complainant is a journalist who set up a communication company. According to the complainant, the relevant facts are as follows: In February 2001, the complainant submitted to the Commission Representation in France a project on communication strategies of the European Commission in relation to the enlargement of the Union. The project comprised three press visits: two visits of 12 French journalists to Poland and the Czech Republic and a visit of 24 journalists from the 10 candidate countries to France. On 16 November 2001(1), the Commission made a financial commitment to co-finance his project amounting to EUR 94 854 for the three press visits. Financial support was granted by the Commission for the first part of the project concerning the two press visits of French journalists to Poland and the Czech Republic. However, in 22 February 2002, i.e. four weeks before the final part of the project concerning the press visit of 24 journalists from the 10 candidate countries to France, the Commission Representation in France decided to cancel the corresponding financial commitment. The complainant considered that this decision had been taken so late that he was not able to cancel the preparations. Instead, he continued with his project, financing it partly from his own resources. The complainant had provided material to indicate that the press visit to France was completed. On 18 November 2002, the complainant wrote to the Director of Directorate General Press and Communication of the Commission in order to request reimbursement of the expenses he had incurred for the last part of the project and which amounted to EUR 20 702. He further claimed damages. On 13 December 2002, the complainant lodged a complaint with the European Ombudsman. He alleged that the Commission Representation in France was liable because it had decided to cancel its financial commitment corresponding to the last

31

press visit four weeks before the final part of the project. The complainant claimed reimbursement of the costs and compensation for the damage caused.

THE INQUIRY The Commission's opinion The opinion of the European Commission on the complaint was in summary as follows: By letter of 22 February 2002, the Commission Representation in France informed the complainant of its decision not to cover the expenses relating to the press visit to France of journalists from the candidate countries foreseen for the month of April 2002. This decision did not in any way constitute a unilateral termination of a contractual obligation, as the complainant appeared to indicate. According to the Commission, there was no legal obligation on its part towards the complainant in this framework. In this respect, the complainant appeared clearly to confuse a budgetary commitment - a purely internal mechanism within an Institution in the framework of budgetary execution - and a contractual obligation in a larger sense between two parties. The Commission recognised that the letter of 22 February 2002 could have appeared belated, taking into account the time necessarily involved in organising such a press visit. However, in the absence of any contract, the complainant could not consider that the Commission was bound by a formal obligation. The Commission also underlined that, before sending the letter of 22 February 2002, the Head of the Commission Representation in France had tried to find a satisfactory administrative solution which would be financially compatible with the complainant's demands. However, no solution which would have been in conformity with the administrative and budgetary regulations was found. The Commission considered that the Representation in France had to free itself from the operation in order to guarantee strict respect for the financial regulations. In the absence of any legal obligation to the complainant, there appeared to be no question of any damage suffered. Finally, as explained in a letter of 7 January 2003 from the Director of Directorate General Press and Communication to the complainant, this decision in no way hindered the complainant's possibilities to participate in future calls for proposals of the Commission.

32

The complainant's observations In his observations on the Commission's opinion, the complainant maintained his complaint and made the following further comments: The complainant contested the argument put forward by the Commission that there was no legal relationship between the Commission and the complainant. According to him, the e-mail of 16 November 2001 from DG Enlargement was proof of the Commission's commitment to his project. In addition, the financial contribution of the Commission for the press visit in Poland - first stage of the project financed by the Commission - which took place from 12 until 16 December 2001 was the beginning of the financial commitment of the Commission. The complainant referred to an email of 30 November 2001 from the Commission Representation in France to him and DG Enlargement(2). The complainant underlined that he had followed all the requirements set by the Representation regarding the changes in the financing procedure. He also contested the argument put forward by the Commission that no solution could be found. According to e-mails sent on 21 November 2001 and 30 November 2001, the Representation was prepared to pay directly the travel expenses of the journalists and to pay an advance of 80% of the hotel expenses. The complainant claimed reimbursement of EUR 20 702 corresponding to the expenses he occurred and compensation of EUR 35 000 for interest and damage caused.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the opinion and the observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegations. The proposal for a friendly solution Article 3 (5) of the Statute of the Ombudsman 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 therefore made the following proposal for a friendly solution to the Commission: The Commission could take measures to ensure that the complainant, as far as possible, was put in the same position as he would have been in if the maladministration had not occurred. This could include a reasonable offer of financial compensation.

33

This proposal was based on the Ombudsmans preliminary conclusion that, by cancelling the financial contribution to the complainant's project, the Commission failed to respect the reasonable expectations of the complainant. The Commissions opinion In its opinion submitted on 16 March 2004, the Commission made the following comments: "Following the letter of the European Ombudsman dated 4 February 2003 proposing a friendly solution, it has been decided to accept his proposal. The Commission's services will contact the complainant in order to seek a fair settlement that would include an offer of a reasonable compensation." The complainants observations In his observations sent on 18 April 2004, the complainant noted that he had not yet been contacted by the Commission. According to him, the Commission Representation in France continued to have a behaviour affecting him negatively concerning a project launched in May 2004 and comprising a press visit in France for journalists from the new Member States. The complainant put forward that on 5 April 2004, he had been informally informed by the Parliament Representation in France that the Commission Representation had warned it against his project because he had lodged a complaint with the European Ombudsman. The Parliament Representation in France firstly refused to support the complainant's project. The complainant however succeeded in subsequently changing the position of the Parliament Representation. Further inquiries The request for further information After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The European Ombudsman therefore asked the Commission to inform him on the following points: "Has the Commission given a follow-up to its letter dated 23 March 2004 in which it had accepted the proposal of a friendly solution made by the Ombudsman and in which it had committed itself to contacting the complainant to make to him an offer of a reasonable compensation?" The Ombudsman also forwarded a copy of the complainant's observations to the Commission.

34

The Commission's further opinion In its further opinion submitted on 15 June 2004, the Commission made in summary the following statements: The Commission sought the most appropriate way to offer to the complainant a reasonable compensation. Several services of the Commission had been contacted in order to check whether funds were available on the budget item foreseen for this kind of expenses. The complainant would be contacted afterwards and offered a financial settlement. As to the allegation concerning the complainant's project of May 2004, the Representation Commission in France did not intervene into the decision of the European Parliament to finance or not the complainant's project. The complainant's further observations In his observations, the complainant argued that, following the Commission's opinion submitted on 16 March 2004, he should have been contacted four months ago. The length of time taken by the Commission to contact him in order to offer him compensation was unacceptable.

THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation On 20 September 2004, the Ombudsman addressed the following draft recommendation to the Commission: In view of the length of time which had elapsed between the Commission's opinion submitted on 16 March 2004 and the complainant's further observations dated 30 June 2004, the European Commission should contact the complainant without delay in order to seek a fair settlement that would include an offer of a reasonable compensation. This draft recommendation was based on the following considerations 1. In February 2001, the complainant submitted to the Commission Representation in France a project on communication strategies of the European Commission in relation to the enlargement of the Union. The project comprised three press visits: two visits of 12 French journalists to Poland and the Czech Republic and a visit of 24 journalists from the 10 candidate countries to France. In an e-mail dated 16 November 2001, the Commission made, according to the complainant, a financial commitment to cofinance his project amounting to EUR 94 854 for the three press visits.

35

Financial support was granted by the Commission for the first part of the project concerning the two press visits of French journalists to Poland and the Czech Republic. By letter of 22 February 2002, the Commission Representation in France informed the complainant of its decision not to cover the expenses relating to the press visit to France of journalists from the candidate countries foreseen for the month of April 2002. The complainant alleged that the Commission Representation in France was liable because it had decided to cancel its financial commitment corresponding to the last press visit four weeks before the final part of the project. The complainant claimed reimbursement of the costs and compensation for the damage caused. 2. The Commission argued that the decision in question did not constitute a unilateral termination of a contractual obligation. According to the Commission, there was no legal obligation on its part towards the complainant. The Commission considered that the Representation in France had to free itself from the operation in order to guarantee strict respect for the financial regulations. The Commission recognised that the letter of 22 February 2002 could appear belated, taking into account the time necessarily involved in organising such a press visit. However, the Commission maintained that, in the absence of a contract, the complainant could not consider that the Commission was bound by a formal obligation. In the absence of any legal obligation to the complainant, there appeared to be no question of any damage suffered. 3. The Ombudsman recalls that Article 10 of the European Code of Good Administrative Behaviour provides as follows: "The official shall respect the legitimate and reasonable expectations that members of the public have in the light of how the Institution has acted in the past." 4. The Ombudsman observes that both DG Enlargement and the Commission Representation in France sent e-mails respectively on 16 and 21 November 2001 to the complainant informing him that the project had been approved and that the identified costs would be covered. He further notes that the Commission made a financial contribution to the press visit in Poland organised by the complainant which constituted the first stage of the project. In these circumstances, the Ombudsman considers that the complainant could reasonably expect that the Commission would make a financial contribution to the press visit which gave rise to the complaint. The Ombudsman also notes that the Commission did not argue that the complainant acted unreasonably in incurring costs on the basis of his expectation of Commission funding and that it appeared to accept that its final decision had come too late for the complainant to avoid these costs.

36

5. In the light of the above, the Ombudsman's conclusion is that, by cancelling the financial contribution to the complainant's project, the Commission failed to respect the reasonable expectations of the complainant. This is an instance of maladministration. The complainant's further correspondence dated 4 November 2004 On 4 November 2004, the Ombudsman received a further e-mail in which the complainant informed him that a meeting had been organised on 28 October 2004 between him and officials of the Commission Representation in Paris. The Commission and the complainant had agreed that the compensation offered to the latter would amount to EUR 56 000. The complainant enclosed with his e-mail a letter in which he reported on the meeting of 28 October 2004. The Commission's opinion In its opinion on the draft recommendation, the Commission stated that it had contacted the complainant in order to seek a fair settlement, as proposed by the European Ombudsman. On 28 October 2004, a meeting had been organised between the complainant and officials of the Commission Representation in Paris. At the end of the meeting, the complainant had proposed that EUR 56 000 should be reimbursed to him, which was accepted by the Commission. The complainant's observations In his observations, the complainant pointed out that he was satisfied with the compensation offered by the Commission. He informed the Ombudsman that the amount of EUR 56 000 had been paid to him on 17 December 2004. The complainant thanked the Ombudsman for his successful intervention.

THE DECISION 1. The scope of the Ombudsman's inquiry 1.1 The original complaint concerned the decision of the Commission Representation in France to cancel the financial commitment allegedly made on 16 November 2001 and relating to the complainant's project on communication strategies of the Commission in relation to the enlargement of the Union. 1.2 In his observations on the Commission's opinion, the complainant alleged that the Commission Representation in France continued to have a behaviour affecting him negatively concerning a project launched in May 2004 and comprising a press visit in France for journalists from the new Member States. The complainant put forward that

37

on 5 April 2004, he had been informally informed by the Parliament Representation in France that the Commission Representation had warned it against his project because he had lodged a complaint with the European Ombudsman. 1.3 Pursuant to Article 195 of the Treaty establishing the European Community, "the European Ombudsman shall conduct inquiries for which he finds grounds". The European Ombudsman considers that the complainant has not supplied enough supporting evidence concerning his further allegation. Therefore, the European Ombudsman does not consider it appropriate to extend his inquiry so as to cover this further allegation. The complainant could however submit a new complaint related to this further allegation if he so wishes. 2. Decision of the Commission Representation to cancel the financial commitment 2.1 In February 2001, the complainant submitted to the Commission Representation in France a project on communication strategies of the European Commission in relation to the enlargement of the Union. The project comprised three press visits: two visits of 12 French journalists to Poland and the Czech Republic and a visit of 24 journalists from the 10 candidate countries to France. In an e-mail dated 16 November 2001, the Commission made, according to the complainant, a financial commitment to cofinance her project amounting to EUR 94 854 for the three press visits. By letter of 22 February 2002, the Commission Representation in France informed the complainant of its decision not to cover the expenses relating to the press visit to France of journalists from the candidate countries foreseen for the month of April 2002. The complainant alleged that the Commission Representation in France was liable because it had decided to cancel its financial commitment corresponding to the last press visit four weeks before the final part of the project. The complainant claimed reimbursement of the costs and compensation for the damage caused. 2.2 The Commission argued that the decision in question did not constitute a unilateral termination of a contractual obligation. According to the Commission, there was no legal obligation on its part towards the complainant. The Commission considered that the Representation in France had to free itself from the operation in order to guarantee strict respect for the financial regulations. The Commission recognised that the letter of 22 February 2002 could appear belated, taking into account the time necessarily involved in organising such a press visit. However, the Commission maintained that, in the absence of a contract, the complainant could not consider that the Commission was bound by a formal obligation. In the absence of any legal obligation to the complainant, there appeared to be no question of any damage suffered.

38

2.3 On 4 February 2004, the Ombudsman submitted a proposal for a friendly solution to the Commission. In its opinion in this proposal, the Commission informed the Ombudsman that it had decided to accept it and that the Commission's services would contact the complainant in order to seek a fair settlement that would include an offer of a reasonable compensation. In his observations, the complainant noted that he had not yet been contacted by the Commission. 2.4 On 20 September 2004, the Ombudsman addressed a draft recommendation to the Commission according to which the latter should contact the complainant without delay in order to seek a fair settlement that would include an offer of a reasonable compensation, in view of the length of time which had elapsed between the Commission's opinion submitted on 16 March 2004. 2.5 In its reply, the Commission informed the Ombudsman that it had contacted the complainant in order to seek a fair settlement, as proposed by the European Ombudsman. On 28 October 2004, a meeting was organised between the complainant and officials of the Commission Representation in Paris. At the end of the meeting, the complainant proposed to be reimbursed EUR 56 000 which was accepted by the Commission. 2.6 In his observations, the complainant pointed out that he was satisfied with the compensation offered by the Commission. He informed the Ombudsman that the amount of EUR 56 000 had been paid to him on 17 December 2004. The complainant thanked the Ombudsman for his successful intervention. 3. Conclusion 3.1 On the basis of his inquiries, the Ombudsman concludes that the Commission has accepted the Ombudsman's draft recommendation and that the measures taken by the Commission are satisfactory. 3.2 The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

In an e-mail addressed to the complainant on 16 November 2001 DG Enlargement stated the following:

39

" me revoici comme promis, j'ai le plaisir de vous annoncer que le projet a t vis, les frais identifis seront couverts, je suppose que vous avez vu avec M. M. comment faire pour la transmission des factures. Tous mes vux de succs, et tenez-nous au courant s'il vous plat du bon droulement de ce projet qui a si bien "retenu toute notre attention" !". In an e-mail addressed to the complainant on 21 November 2001 the Commission Representation in France stated the following: " Faisant suite mon mail de hier et tant donn l'accord final que nous avons reu le vendredi soir 16/11 je vous prie de bien vouloir me transmettre les informations suivantes () Je vous remercie encore une fois de votre patience et j'espre que ds la rception de la liste et des dates de votre prochain voyage nous serons en mesure de commencer cette opration. Par ailleurs, veuillez noter que cette procdure sera identique galement pour le voyage de presse en Rpublique Tchque ainsi que le voyage de journalistes de pays candidats en France..." "Les billets d'avion: Comme dj mentionn dans mon mail du 21/11, les billets pour la totalit de participants seront achets par nous et pays directement,... Frais d'htel: Nous sommes disposs payer une avance hauteur de 80% de frais d'htel..." "Enfin, vu les dates proches du voyage en Pologne et en considrant la liste de participants, que vous venez de nous transmettre, comme dfinitive, je demanderai cet aprs-midi notre agence de voyage la rservation de billets pour tout le monde..."
(2)

40

Decision of the European Ombudsman on complaint 1336/2003/IP against the European Commission

Strasbourg, 16 November 2005

Dear Ms N., On 21 July 2003, you made a complaint to the European Ombudsman concerning the Commission's decision not to allow you to continue your job as a "call centre" operator at DG ADMIN. On 16 February 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 13 May 2004. I forwarded it to you with an invitation to make observations, which you sent on 24 May 2004. In order to pursue my inquiries, I considered that it was necessary to conduct further inquiries. On 8 December 2004, I therefore wrote to the Commission and asked it to comment on your observations by the end of January 2005. I received the Commission's reply on 24 February 2005 which I forwarded it to you on 2 March 2005 with an invitation to make observations, if you so wished. I received no observations from you. On 24 June 2005, I wrote to the President of the European Commission in order to propose a friendly solution to your complaint. On the same date, I sent a copy of the letter of friendly solution to you, for your information. The European Commission sent its reply to the proposal on 22 September 2005. I forwarded it to you on 29 September 2005 with an invitation to submit your observations, which I received on 6 October 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are as follows: Between October 2002 and March 2003, the complainant was a trainee at the European Commission (translation services). According to the complainant, in June 2003, she signed a contract with the "Danny G. Larbouillat" company for a post of "call centre" operator at DG ADMIN. She started her job on 1 July 2003. On 3 July 2003, she received a badge to enter the Commission's premises.

41

On 4 July 2003, the complainant was informed by the "Danny G. Larbouillat" company that she could not continue her job. DG ADMIN had in fact informed the company that, according to point 19 of the Rules governing in-service training with the Commission, "trainees cannot benefit from any form of contract with the Commission until one year after completing their in-service training". The complainant contacted the Commission which confirmed the decision taken by DG ADMIN. In her complaint to the Ombudsman, the complainant alleged unfairness by the Commission because it had taken the decision that she could not continue her job of "call centre" operator after she had started it. Furthermore, she alleged that the rules invoked by the Commission should not apply to her case, since she had signed her contract with the "Danny G. Larbouillat" company and not with the Commission. The complainant claimed that the Commission should pay her the equivalent of six months of salary, corresponding to the duration of the contract she had signed.

THE INQUIRY The European Commission's opinion In its opinion on the complaint, the Commission made the following comments: The complainant did an in-service traineeship with the Commission between 1 October 2002 and 31 March 2003. The complainant was then offered a contract as a "call centre" operator by the company Siemens ATEA, which had signed a contract with the Commission on 3 February 2003. The complainant started her job on 1 July 2003. However, after having checked her dossier, it emerged that the complainant had been a trainee at the Commission until the end of March 2003. In accordance with the relevant rules, the complainant could therefore not benefit from the contract. Siemens ATEA therefore rescinded the complainant's contract. The relevant rules in the present case were contained in the Code of Conduct concerning the relationship between the Commission's services and certain categories of personnel of October 1994 and the Rules concerning in-service training with the Commission (Decision of the Commission of 7 July 1997, "the Rules"). According to the Code of Conduct, all proposals for the recruitment of personnel to which the so-called "three-year rule" applies, have to be accompanied by the "Outside staff recruitment" form, containing all the information needed to identify the person concerned. The Commission (DG ADMIN) carries out the necessary checks of the information contained in the relevant form before granting or refusing its authorisation for recruitment of the person in question. This rule applies also to the personnel of outside firms who work within the Commission's premises ("intra muros").The

42

verification of the dossier also includes the verification of conformity with point 19 of the Rules, according to which "trainees cannot benefit from any form of contract with the Commission until one year after completing their in-service training". This rule prohibits all kinds of contractual relationship with the Commission within the period of one year after completing the in-service training and any contractual relationship which involves duties to be carried out within the Commission premises. There are, however, some exceptions to these general rules. The first exception is laid down in paragraph 2 of point 19 of the Rules, which foresees that trainees may participate in any competition, selection or tender procedure organised by the Commission, provided that they meet the conditions and may be employed without delay if successful. The second exception was introduced by the Commission's decision of 30 October 2003 concerning the derogation from paragraph 1 of point 19 of the Rules in favour of trainees coming from those countries which were to join the European Union on 1 May 2004. In the present case, the complainant had terminated her in-service training period with the Commission only three months before starting her job as a "call centre" operator. Since no exception could apply to her case, it was therefore impossible for her to continue her job. The Commission further considered that when starting their in-service training, trainees are informed about the impossibility of working at the Commission until one year after completing it, and a copy of the relevant Rules is given to each trainee. The complainant was perfectly aware of these rules and she should not have signed the contract with Siemens ATEA. As regards the contract signed between Siemens ATEA and the Commission on 3 February 2003, the latter stressed that, in accordance with the rules governing the execution of the contract, it could ask the company, at any moment, to replace an employee. In view of the complainant's situation, the Commission had asked Siemens ATEA to replace the complainant. Siemens ATEA did not object to the Commission's request. Taking into account the fact that the sole existing working relationship was between the complainant and Siemens ATEA, which was aware of the abovementioned Rules, the complainant should have turned to Siemens ATEA. As regards the fact that the complainant had been informed that she could not continue to carry out her job four days after she had started it, the Commission explained that for procedural reasons it could happen that the verification of the relevant dossier is carried out by the Commission's services after the person concerned has started his/her job. This was what had happened in the complainant's case. The complainant's observations In her observations, the complainant stressed that the English version of the Rules provides that "trainees cannot benefit from any form of contract with the Commission

43

until one year after completing their in-service training", and not at the Commission, as the French version to which the Commission referred seemed to suggest. Further inquiries Request for further information In these circumstances, the Ombudsman considered that he needed further information in order to be able to pursue his inquiries into the present complaint. On 8 December 2004, he therefore wrote to the Commission, asking the institution to comment on the complainant's observations and, more specifically, on the following points: 1. The Ombudsman noted that there were certain discrepancies between the different linguistic versions of point 19 of the Rules. He therefore asked the Commission to explain on what basis it had interpreted the relevant rule in the sense that it does not only prohibit all kinds of contractual relationship with the Commission within the period of one year after completing the in-service training, but also all kinds of contractual relationship which involve work to be carried out on the Commission's premises. 2. The Ombudsman noted that in its opinion, the Commission had not explained what the purpose of the relevant rule was. He therefore asked the institution to explain what purpose the relevant rule was to serve in its view. 3. In her complaint, the complainant had stated that she had signed her contract of "call centre" operator with the company "Danny G. Larbouillat". In its opinion, the Commission had referred to Siemens ATEA as the complainant's employer. The Ombudsman asked the Commission to specify the relationship between the two companies. 4. The Ombudsman finally drew the Commission's attention to the fact that, in her complaint, the complainant had submitted that she was aware of some cases in which former trainees had obtained contracts before the end of the one-year period after completing their in-service training. The Commission's reply In its reply to the Ombudsman's letter of 8 December 2004, the Commission made in summary the following comments: As regards point 1), certain discrepancies existed between the different linguistic versions of point 19 of the Rules, namely the French version on the one hand and the English and the Italian versions on the other hand. Nevertheless, the point was not to establish which linguistic version should be considered ipso facto to have priority vis-vis the others. It was necessary, on the contrary, to understand the ratio legis and to identify the version that reflected the latter more appropriately, as established by the

44

Court of Justice in its judgement in Case 6/74 Moulijin v. Commission(1). The intention of the legislator clearly emerged from the original version of the relevant rules which had been drafted in French. Furthermore, if, from a legal point of view, the complainant did not have a professional relationship with the Commission, from a practical point of view, she was supposed to work for the Commission. If the Commission had not taken into account this aspect of the case, the consequence would have been an infringement of the existing rules. Apart from the exception introduced by the Commission's decision on 30 October 2003 in favour of trainees coming from candidate countries, the Commission had constantly and strictly applied the relevant rules. As regards point 2), the purpose underpinning the rules, according to which trainees cannot benefit from any form of contract with the Commission until one year after completing their in-service training unless they have succeeded in an open competition, was to avoid the risk of giving the impression that a link might possibly exist between the traineeship and the opportunity to work with the Commission or for the Commission. Former trainees had to have no greater chances than any other potential applicant. As regards point 3) of the Ombudsman's letter of 8 December 2004, Siemens ATEA had a contractual relationship with the institution for the provision of "call centre" services. In order to carry out its task, Siemens ATEA was allowed to explore different offers in the labour market and, if necessary, to use a subcontractor. In the present case, the Commission did not know who the employer of the complainant was. The Commission could only confirm that M. Danny Larbouillet whose name, according to the complainant, appeared on her contract, was indicated as the person responsible for the management of the contracts within Siemens ATEA. As regards point 4) of the above-referred letter, the Commission was not aware of trainees who, without being covered by one of the exceptions foreseen by the relevant rules, obtained unpaid in-service contracts or auxiliary contracts before the end of the one-year period after completing their in-service training, as alleged by the complainant. The Commission further stressed that, in any case, the fact that the Commission's existing rules may not have been respected in specific cases could not be considered as a judicial precedent in favour of the complainant. The Commission finally stated that it had always ensured a fair implementation of the relevant rules which had been correctly applied. The Commission further informed the Ombudsman that it was drafting new rules governing traineeships within the Commission and that, in this context, it envisaged the possibility of eliminating the so-called "one-year rule", according to which "trainees cannot benefit from any form of contract with the Commission until one year after completing their in-service training". As a consequence, former trainees would

45

have the opportunity to work for the Commission without the risk of violating the relevant rules. The complainant's observations on the Commission's reply No observations were received from the complainant.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the opinions and observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegations and claim. In accordance with Article 3 (5) of the Statute(2), the Ombudsman therefore wrote to the President of the Commission to propose a friendly solution on the basis of the following analysis of the issues in dispute between the complainant and the Commission: 1. Regarding the alleged unfairness by the Commission because it took the decision that the complainant could not continue her job of "call centre" operator after she had started it 1.1 The complainant was a trainee at the European Commission (translation services) between October 2002 and March 2003. In June 2003 she signed a contract with the "Danny G. Larbouillat" company for a post of "call centre" operator at DG ADMIN. She started her job on 1 July 2003. However, on 4 July 2003, she was informed that she could not continue her job, given point 19 of the Rules, adopted by Decision of 7 July 1997, governing in-service training with the Commission of the European Communities ("the Rules") which established that "trainees cannot benefit from any form of contract with the Commission until one year after completing their in-service training". The complainant alleged unfairness by the Commission because it had taken the decision that she could not continue her job of "call centre" operator only after she had started it. 1.2 In its opinion, the Commission explained that, in accordance with the Code of conduct concerning the relationship between the Commission's services and certain categories of personnel of October 1994, all proposals for the recruitment of personnel to which the so-called "three-year rule" applies had to be accompanied by the "Outside staff recruitment" form, containing all the information needed to identify the person concerned. The Commission (DG ADMIN) carried out the necessary checks of the information contained in the relevant form before granting or refusing its authorisation for the recruitment of the person in question. For procedural reasons it could happen that the verification of the relevant dossier was carried out by the Commission's services after the person concerned has started his/her job. This was what had happened in the complainant's case.

46

1.3 The Ombudsman took the view that the verification of the relevant dossier by the Commission's services should be carried out as soon as possible. In the present case, the Ombudsman noted that the Commission had not shown that it would have been impossible to carry out the examination of the complainant's dossier before she started her job on 1 July 2003. He furthermore noted that the complainant had already received her badge (on 3 July 2003) to enter the Commission's premises before she had been informed that she could not continue her job (on 4 July 2003). The Ombudsman's preliminary conclusion as regards this aspect of the case was, therefore, that the fact that the Commission had taken the relevant decision concerning the complainant after she had started her job as a "call centre" operator at DG ADMIN could constitute an instance of maladministration. 2. Regarding the complainant's allegation that the rules invoked by the Commission do not apply to her case and the complainant's claim that the Commission should pay her the sum corresponding to the duration of the contract she had signed 2.1 The complainant considered that the Commission's decision that she could not continue her job as a "call centre" operator at DG ADMIN had been based on rules (point 19 of the Rules) which did not apply to her case. She claimed that the Commission should pay her the equivalent of six months of salary, corresponding to the duration of the contract she had signed. 2.2 In its opinion, the Commission stressed that, in accordance with point 19 of the Rules, which established that "trainees cannot benefit from any form of contract with the Commission until one year after completing their in-service training", not only all kinds of contractual relationship with the Commission within the period of one year after completing the in-service training were prohibited, but also any contractual relationship which involved work to be carried out on Commission premises. Since the complainant had terminated her in-service training period with the Commission only three months before starting her job as a "call centre" operator and since none of the exceptions foreseen by paragraph 2 of the same point 19 could apply to her case, it had therefore been impossible for the Commission to allow her to continue her job. 2.3 In her observations, the complainant stressed that the English version of the Rules referred to "any form of contract with the Commission", and not at the Commission, as the French version to which the Commission referred seemed to suggest. 2.4 In order to clarify this aspect of the case, the Ombudsman sent a request for further information to the Commission on 8 December 2004. In this letter, the Ombudsman stated that it appeared that there were certain discrepancies between the different linguistic versions of point 19 of the Rules. The Ombudsman therefore asked the Commission to explain on which basis it had interpreted the relevant rule in the sense that point 19 did not only prohibit all kinds of

47

contractual relationship with the Commission within the period of one year after completing the in-service training, but also all kinds of contractual relationship which involved work to be carried out on the Commission's premises. The Ombudsman also asked the Commission to explain what purpose the relevant rule was to serve in its view. 2.5 In its reply, the Commission explained that it accepted that certain discrepancies existed between the different linguistic versions of point 19 of the Rules, namely the French version on the one hand and the English and the Italian versions on the other. The Commission submitted, nevertheless, that the point was not to establish which linguistic version should be considered ipso facto to have priority vis--vis the others. In the Commission's view, it was necessary, on the contrary, to understand the ratio legis. The Commission argued that the intention of the legislator clearly emerged from the original version of the relevant rules which had been drafted in French. According to the Commission, the purpose underpinning point 19 of the Rules was to avoid the risk of giving the impression that a link might possibly exist between the traineeship and the chance to have a job opportunity with the Commission or for the Commission. Former trainees had to have no greater chances than any other potential applicants. 2.6 The Ombudsman noted that the English version of point 19 of the Rules, according to which "[t]rainees cannot benefit from any contract with the Commission ()", as well as the Italian one, according to which "[i]l tirocinante non pu concludere alcun contratto con la Commissione ()" appeared to support the complainant's interpretation of the Rules. The Ombudsman also took the view that the French text of the Rules did not unambiguously support the Commission's view. In these circumstances, and as indicated by the Commission, it appeared necessary to consider the ratio legis of the relevant provision. In this regard, the Ombudsman noted that the contract signed by the complainant for a job as a "call centre" operator was not with the Commission but with an external company which already had a contract with the Commission. He also noted that the complainant was to carry out her job at DG ADMIN, and thus in a service different from the one where she had made her in-service training (translation services). In the Ombudsman's view, the ratio legis of the relevant provision, as explained by the Commission, did therefore not appear to be applicable in the present case. 2.7 Furthermore, the Ombudsman noted that the Commission itself granted exceptions from the relevant rule, namely in favour of trainees coming from those countries which were to join the European Union on 1 May 2004. On the basis of the explanations given by the Commission it was difficult to understand how this exception could be justified if the aim of the relevant provision was to avoid the risk of giving the impression that a link might possibly exist between the traineeship and the chance to have a job opportunity with the Commission.

48

2.8 The Ombudsman's provisional conclusion was, therefore, that the application of the provision laid down in point 19 of the Rules in the complainant's case and the Commission's decision not to allow her to continue her job as a "call centre" operator could constitute an instance of maladministration. 2.9 Besides, the Ombudsman noted that by its decision of 2 March 2005, the Commission had adopted new rules governing the official traineeship scheme of the European Commission. Among other changes, the relevant decision foresees that "[a]lthough the absence of any link between the traineeship and access to the European civil service is maintained, it is proposed to abolish the rule by which trainees may not benefit from any contract with the Commission before a period of one year from the end of the traineeship. This is to guarantee an equality of treatment between trainees and all other persons applying to the Commission". 2.10 In her complaint, the complainant claimed that the Commission should pay her the equivalent of six months of salary, corresponding to the duration of the contract she had signed. 2.11 In light of the preliminary conclusion reached in point 2.8 above, the Ombudsman took the view that it would indeed appear to be appropriate for the Commission to consider offering the complainant adequate compensation for the material loss she seemed to have suffered on account of the Commission's behaviour. The proposal for a friendly solution The friendly solution proposed by the Ombudsman consisted in the Commission considering the possibility of offering the complainant adequate compensation. The European Commission's reply Regarding the Ombudsman's preliminary conclusion that in the complainant's case the institution did not show that it would have been impossible to carry out the examination of the complainant's dossier before she started her job on 1 July 2004, the Commission agreed with the Ombudsman's position and confirmed that it would have been possible to take adequate measures in order to inform the complainant about the impossibility for her to start her job as a "call centre" operator before 1 July 2004. Regarding the Ombudsman's preliminary conclusion on the applicability of point 19 of the Rules in the complainant's case, the Commission stressed that the purpose of this rule and its restrictive application were based on the need to avoid the perception of privileging for former trainees who could take advantage of their previous links with the Commission. Regarding the exceptions in favour of trainees coming from those countries which were to join the European Union on 1 May 2004, the Commission recalled that they had been temporary measures, based on the need to recruit, within a short delay,

49

individuals from candidate countries to benefit from their experience during the EU enlargement process. Furthermore, contrary to what had been done in the past for the recruitment of auxiliary agents among nationals of one of the 15 EU Member States, the recruitment of auxiliary agents from candidate countries had been based on a call for expressions of interest published on the European Personnel Selection Office (EPSO) website. The Commission stated that it could therefore not share the view of the Ombudsman on the possible maladministration on its part concerning the applicability of point 19 of the Rules in the complainant's case. It furthermore added that the relevant legislation had been brought to the attention of the complainant when she had started her traineeship and that she had therefore been aware of it. However, the Commission stated that, even if it should not be considered as a recognition of liability on its part, it was ready to offer the complainant a sum of EUR 1 000 in the framework of the present procedure and in a spirit of conciliation. The complainant's observations In her letter of 4 October 2005, the complainant, who took note of the fact that the Commission had in the meantime (on 2 March 2005) adopted new rules governing internal traineeships and that the so-called one-year rule had been eliminated, informed the Ombudsman that she accepted the offer made by the Commission.

THE DECISION 1. The complainant's allegations and claim 1.1 The complainant, who had done an in-service traineeship with the Commission between 1 October 2002 and 31 March 2003, was then offered a contract as a "call centre" operator by the company Siemens ATEA, which had signed a contract with the Commission on 3 February 2003. The complainant started her job on 1 July 2003. However, on 4 July 2003, the complainant was informed that, in accordance with the relevant rules, she could not continue her job as a "call centre" operator. In order to justify its position, the Commission referred to point 19 of the Rules governing inservice training with the Commission of the European Communities, according to which "trainees cannot benefit from any form of contract with the Commission until one year after completing their in-service training". In her complaint, the complainant alleged unfairness by the Commission because it had taken the decision that she could not continue her job of "call centre" operator only after she had started it. Furthermore, she alleged that the rules invoked by the Commission should not apply to her case, since she had signed her contract with a company and not with the Commission.

50

The complainant claimed that the Commission should pay her the equivalent of six months of salary, corresponding to the duration of the contract she had signed. 1.2 After careful consideration of the Commission's opinions and the complainant's observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegations and claim. 1.3 As regards the complainant's first allegation, the Ombudsman noted that the Commission had not shown that it would have been impossible to carry out the examination of the complainant's dossier before she started her job on 1 July 2003. His preliminary conclusion was therefore that the fact that the Commission had taken the relevant decision concerning the complainant after she had started her job as a "call centre" operator at DG ADMIN could constitute an instance of maladministration. 1.4 As regards the complainant's second allegation, the Ombudsman noted that the contract signed by the complainant for a job as a "call centre" operator was not with the Commission but with an external company which already had a contract with the Commission. He also noted that the complainant was to carry out her job at DG ADMIN, and thus in a service different from the one where she had made her inservice training (translation services). In the Ombudsman's view, the ratio legis of the relevant provision, as explained by the Commission, did not therefore appear to be applicable in the present case. His preliminary conclusion was thus that the application of the provision laid down in point 19 of the Rules in the complainant's case and the Commission's decision not to allow her to continue her job as a "call centre" operator could constitute an instance of maladministration. 1.5 The Ombudsman therefore took the view that it would indeed appear to be appropriate for the Commission to consider offering the complainant adequate compensation for the material loss she seemed to had suffered on account of the Commission's behaviour. 1.6 In light of his preliminary conclusions, the Ombudsman wrote to the President of the European Commission on 24 June 2005, proposing a friendly solution by which the Commission would consider the possibility of offering the complainant adequate compensation. 1.7 In its reply, the Commission agreed with the Ombudsman's position that it would have been possible to take adequate measures in order to inform the complainant about the impossibility for her to start her job as a "call centre" operator before 1 July 2003. Regarding the Ombudsman's preliminary conclusion on the applicability of point 19 of the Rules in the complainant's case, the Commission stated that it could not share the view of the Ombudsman as to the possible maladministration on its part.

51

However, the Commission stated that, even if it should not be considered as a recognition of liability on its part, it was ready to offer the complainant a sum of EUR 1 000 in the framework of the present procedure and in a spirit of conciliation. 1.8 By letter of 4 October 2005, the complainant informed the Ombudsman that she accepted the Commission's offer. Conclusion Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been achieved. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Judgment of the Court (Second Chamber) of 21 November 1974. Johannes Moulijn v Commission of the European Communities. ECR 1974, Page 1287.

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)

52

Decision of the European Ombudsman on complaint 1435/2003/MF against the European Commission

Strasbourg, 6 December 2005

Dear Mrs C. and Mr D., On 28 July 2003, you made a complaint to me against the European Commission concerning the refusal of the European School of Ixelles to enrol your son in the English-language section. On 17 September 2003, I forwarded the complaint to the President of the European Commission. The European Commission sent its opinion on 19 November 2003. On 27 November 2003, I forwarded it to you with an invitation to make observations, which you sent on 7 January 2004. On 19 October 2004, I asked the Commission for further information in relation to your complaint. The Commission sent its reply on 1 December 2004. The Commission's reply was forwarded to you, with an invitation to make observations, which you sent on 10 January 2005. On 14 March 2005, I addressed a draft recommendation to the Commission. You were informed accordingly in a letter sent the same day. On 21 June 2005, the Commission sent me its opinion regarding my draft recommendation. I forwarded it to you on 30 June 2005 with an invitation to make observations before 31 July 2005. Given that no observations were received from you by that date, my services contacted you (Ms C.) by telephone on 3 October 2005 and were informed that you and your partner (Mr. D.) were satisfied by the Commission's detailed opinion and that both of you had no observations to make. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainants, the relevant facts are as follows: The complainants live in Brussels. Mr D. is a Spanish national and Ms C., who works for the European Commission, is an Italian national. There are three European Schools in Brussels, namely the European School of Brussels I (or Uccle), the European School of Brussels II, and the European School of
53

Brussels III (or Ixelles). They all comprise a nursery school, a primary school and a secondary school. On 16 April 2002, the complainants applied to the European School of Uccle to enrol their son in the English-language section of the nursery school for the school year 2002/2003. On 13 May 2002, the complainants' son was invited for an interview with the Director in order to test his language skills. The complainants were informed informally that the level of their son in English was not considered to be at the mother tongue level. On 28 May 2002, the complainants were informed that their son would be enrolled in the Spanish-language section of the European School of Uccle. On 10 June 2002, following the complainants' application for enrolment of their son in the English section of the nursery school of the European school of Ixelles for the school year 2002/2003, the complainants' son was invited for an interview in order to test his English-language skills at the European School of Ixelles. On 21 June 2002, the European School of Uccle informed the complainants that their son could not be enrolled in the English-language section of the School for the school year 2002/2003 and that they had to decide if they wanted their son to be enrolled in the Spanishlanguage section. On 27 June 2002, the European School of Ixelles informed the complainants that their son was accepted for admittance to the Spanish-language section. Following the refusal of the two European Schools of Uccle and Ixelles to enrol the complainants' son in their English-language section, they decided to enrol the latter in a private English Primary School in Brussels. In April 2003, the complainants applied for the enrolment of their son in the Englishlanguage section of the primary school of the European School of Ixelles for the year 2003/2004. On 11 June 2003, they were informed by the European School of Ixelles that their son could not be enrolled in the English-language section due to the lack of available places. On 16 and 26 June 2003, the complainants wrote to the European School of Ixelles and asked it to review its decision. On 1 July 2003, the lawyer of the complainants wrote to the Director of the European School of Ixelles and to the Representative of the European Schools in the European Commission. He asked them to reconsider their position and to give him an answer before 18 July 2003. On 28 July 2003, the complainants lodged a complaint with the European Ombudsman against the European School of Ixelles and the European Commission concerning the refusal of the European School of Ixelles to enrol their son in the English-language section. The complainants made the following allegations:

The European School and the European Commission had failed to give any reasons to justify their decision not to enrol the complainants' son in the English-language section for the school year 2003/2004. This constitutes a lack of transparency and objectivity in the procedure for the selection of pupils. The European School and the European Commission infringed Article 4 (4) and (6) of the Convention defining the Statute of the European Schools and Articles 14, 21, 22 and 24 of the Charter of Fundamental Rights of the

54

European Union. The European School and the European Commission failed to respect the right to instruction and education of one's choice, the principle of non-discrimination on the basis of nationality and language, and the rights of the child related to his/her instruction. The complainants had not received any reply to the letter dated 1 July 2003, sent by their lawyer to the European School and the Representative of the European Schools in the European Commission, in which they requested the enrolment of their son in the English-language section for the school year 2003/2004.

The complainants claimed that the decision of the European School of Ixelles dated 11 June 2003 not to enrol their son in the English-language section should be annulled. They claimed that their son should be enrolled in the English-language section for the school year 2003/2004.

THE INQUIRY The Commission's opinion The opinion of the European Commission on the complaint was in summary as follows: The aim of the European Schools was to enable staff of the European Institutions to live near their working places, to ensure an appropriate education of the children of staff and to facilitate a proper functioning of the European Institutions. The rules of admission for pupils at the European Schools were approved by the Board of Governors, an intergovernmental body composed of representatives of the Member States, the European Patent Office and the Commission. The Board of Governors had decided that "the enrolment in one of the language sections of the European Schools (both nursery school, primary school, secondary school) shall be decided, as a rule, on the basis of the tongue mainly spoken by the pupil". This rule aimed to ensure a better education of the child and to avoid a drop of the level of education in the class. In the complainants' case, the languages spoken within the family were Italian and Spanish. Even though the Commission had no competence in the educational field nor in the management of the European Schools, its services had shown concern for the case of the complainants' son and had invited the two European Schools concerned to inform the complainants of the grounds of the decision not to enrol their son in the Englishlanguage section. The decisions of the two European Schools were based on the following grounds:

55

The European School of Ixelles, after having noted that the languages mainly spoken by the complainants' son were Italian and Spanish, could not enrol him in the Englishlanguage section, due to the lack of available places. The European School of Ixelles advised the complainants to contact the European School of Uccle and forwarded the file of the complainants' son to the latter. The complainants then applied for the enrolment of their son in the English-language section of the European School of Uccle for the school year 2003/2004. They had already applied on 16 April 2002 and an interview in English had been held on 15 May 2002. Given that the interview revealed that the complainants' son had an almost total lack of knowledge of English, the European School suggested his enrolment in the Spanish-language section. This suggestion was rejected by the complainants. The European School of Uccle refused again the enrolment of the complainants' son in the English-language section for the school year 2003/2004 for the same reasons already clearly given by the Board of Governors and the European School of Ixelles. The European School of Uccle suggested the enrolment of the complainants' son in the Spanish-language section (mother tongue of the father) or in the Italian-language section (mother tongue of the mother). The complainants decided to contact on their own the teacher of the European School in charge of the interviews for the enrolment in the English-language section. The latter refused to organise such an interview with the complainants' son because his name was not included in the list of the pupils to be interviewed. It was obvious that the complainants' son, as a pupil of category I(1), was still entitled to be enrolled in a European School, but not necessarily in the language section chosen by his parents. It was regrettable that there had been a delay in answering the complainants' letters. However, the complainants could not deny that the European Schools had clearly informed them of the conditions of admission. The complainants' observations The European Ombudsman forwarded the Commission's opinion to the complainants with an invitation to make observations. In their reply sent by their lawyer and dated 7 January 2004, the complainants maintained their complaint and made the following further comments: As to the failure of the European School of Ixelles to enrol the complainants' son in the English-language section, the decision regarding the enrolment in one of the language sections of the European Schools should not only have depended on the mother tongue of the pupil but also on other elements, in order to ensure that the right to instruction and education of one's choice, the principle of non-discrimination on the

56

basis of nationality and language and the rights of the child related to his/her instruction are respected. The Commission had wrongly stated that the languages spoken within the complainants' family were Italian and Spanish. The complainants and their son used Spanish, Italian and English every day. Contrary to the Commission's statement, the complainants had not been informed of the conditions of admission to the European Schools. The Commission had not taken into consideration the interests of the complainants' child, namely his personal and educational aim of improving his level of English in view of the family's intention to move to a non-Spanish speaking country. By stating that the complainants' son had an almost total lack of knowledge of English, the Commission had acted in an offhand and humiliating way. The level of knowledge of English of the complainants' son was never assessed by the European School. In addition, the complainants' son had been in an English primary school in Brussels for four years and his results were satisfactory indeed. By justifying its decision not to enrol the complainants' son in the English-language section by the lack of available places, the European School had penalised the education of a particular category of children of staff of the European institutions. In these circumstances, the complainants asked for the assessment of the level of English of their son by an independent committee that would be nominated by the European Ombudsman. As to the failure of the European School and the European Commission to reply to the letter dated 1 July 2003, the complainants considered that principles of good administration had not been respected. Further inquiries The request for information addressed to the Commission After careful consideration of the Commission's opinion and the complainants' observations, it appeared that further inquiries were necessary. The European Ombudsman therefore asked the Commission to provide him with information on the following points:

In its opinion, the Commission stated that the Board of Governors had decided that "the enrolment in one of the language sections of the European Schools (both nursery school, primary school, secondary school) shall be decided, as a rule, on the basis of the language mainly spoken by the pupil". However, in its letter dated 11 July 2003 to the complainants, the European School of Ixelles

57

informed the latter that it was unable to enrol their son in the English-language section of the school due to the lack of available places in the school. The Ombudsman asked the Commission to explain this discrepancy. In their observations, the complainant maintained their allegation following which they had not received any reply to the letter of 1 July 2003 in which they had requested the enrolment of their son in the English-language section for the school year 2003/2004. The Ombudsman asked the Commission to indicate whether a reply had been sent to the complainants.

The Commission's reply In its reply, the Commission made in summary the following statements: The Board of Governors decided that the Directors of the three European Schools in Brussels should enforce its decision pursuant to which: the enrolment in one of the language sections of the European Schools shall be decided as a rule, on the basis of the language mainly spoken by the pupil. With a view to reducing costs and overcrowding in the three European Schools, the Board of Governors further decided that the Directors of the three European Schools in Brussels should consult with each other on a regular basis when deciding on admissions and should treat the three European Schools as a single school. This meant that if a certain class in one school was full or nearly full but one of its counterparts had more room for accepting new pupils, the parents requesting the admission of their child should be directed to the school which had places in the appropriate class. Children of category I would therefore be accepted in a European School but not necessarily the one of their choice. In the complainants' case, the Director of the European School of Ixelles advised the complainants to make an application to the European School in Uccle since the class in which the complainants wished their son to be enrolled in the European school of Ixelles was full. The Director of the European School of Ixelles was therefore referring to the decision of the Board of Governors pursuant to which the three European Schools had to be considered as a single school. He did not consider it necessary to refer to the decision of the Board of Governors pursuant to which the enrolment in one of the language sections of the European Schools shall be decided as a rule, on the basis of the language mainly spoken by the pupil . However, the Director of the European School of Ixelles further suggested to the parents to have their son enrolled in the Italian- or Spanish-language section of the European School in Uccle. The child was therefore not refused access to the European School system. The Commission therefore did not see any discrepancy between the two decisions of the Board of Governors and the reasons given by the Director of the European School of lxelles for not accepting the son of the complainants in the English-language section of his school. Concerning the alleged failure to reply to the complainants' letter of 1 July 2003, the Commission enclosed with its opinion a copy of a reply dated 25 September 2003 from the then Director of the European School of Ixelles responding to the

58

complainants lawyer on the refusal of the European School to accept the son of the complainants in the English-language section. The reply was indeed late but due consideration should be given to the fact that the summer vacation had intervened and that both the end and beginning of the school year were very busy periods for schools. In relation to delays in responses to parents from the European Schools, the Commission would like to inform the Ombudsman of its proposal on "Transparency and Good Administration" tabled at the meeting of the Board of Governors in January 2004 according to which the European Schools are requested to reply in due time (ten working days). As a conclusion, the rules for enrolment in the European Schools were applied, without discrepancies or discrimination. Secondly, replying to parents in such matters was the sole responsibility of the Director of the European School. The Commission recognised that there was a delay in providing the complainants with a response but denied the allegation that no reply was sent by the school to the parents. As regards the future, there could still be a possibility for the son of the complainants to enrol in an English-language section at a European School. It appeared that the European School of Ixelles did not test the complainants' son to assess his knowledge of the English language and that he was only tested in the European School in Uccle in May 2002. Since the latest documents provided by the complainants, from the Brussels Primary School where their son was currently enrolled, attested to his sufficient level of English, the complainants could re-apply to the European School and have their son tested again for possible admission to an English-language section. The complainants' further observations In their further observations, the complainants maintained their allegations. They made the following additional comments: In its letter dated 11 June 2003, the Commission had firstly noted that the languages mainly spoken by the complainants' son were Italian and Spanish and further decided not to enrol the latter, due to the lack of available places. The conditions of admission to the European Schools were therefore still misleading and confused. The complainants further pointed out that they had applied to the European School of Ixelles to enrol their son in the English-language section for the school year 2004/2005. On 25 June 2004, the European School of Ixelles informed the complainants that their son could not be enrolled in the English-language section of the School "due to the high number of enrolments". The Director of the European School of Ixelles advised the complainants to refer to European School of Uccle. On 15 July 2004, the latter informed them that careful consideration had been given to the tests taken by their son in English and Spanish. The Director of the European School of Uccle further proposed to test the complainants' son in Italian. In an e-mail dated 29 July 2004, the complainants replied to the Director of the European School of Uccle that they had decided to educate their son in the English language and the proposal to

59

test their son's level in Italian was pointless. In an e-mail of the same day sent to the Director of the European School of Ixelles, the complainants suggested the possibility of introducing their son's application in a kind of reserve list to enable them to apply to the school the following year without their son having to take the usual English test. The complainants alleged that they did not receive any reply to these two e-mails until the time of their further observations. Concerning the Commission's failure to reply to the complainants' letter dated 1 July 2003, the complainants pointed out that the reasons given by the Commission in its further opinion, namely the fact that the summer vacation had meanwhile intervened and that both the end and beginning of the school year were very busy periods for schools, were not relevant and could not justify the delay in answering the letter.

THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation On 14 March 2005, the Ombudsman addressed the following draft recommendation to the Commission with regard to the complainants' first allegation: The European Commission should endeavour to clarify the conditions of admission of the pupils in the language sections of the European Schools. This draft recommendation was based on the following considerations: 1. The scope of the Ombudsman's inquiry 1.1 The European Schools were originally created by the European Communities and the Member States of the European Communities, which signed the Statute of the European School in 1957. The Ombudsman has consistently taken the view that the European Schools are not a Community institution or body. 1.2 However, the Ombudsman also takes the view that the Commission has a certain responsibility for the operation of the European Schools because it is represented in the Board of Governors and contributes largely to their financing. The Ombudsman considers that the Commission's responsibility does not extend to questions concerning the internal management of the Schools. 1.3 On this basis, the Ombudsman asked the Commission for an opinion on the allegations made by the complainants in their complaint, to the extent that it was directed against the Commission. 1.4 In their observations on the opinion, the complainants asked for the assessment of the level of English of their son by an independent Committee that would be nominated by the Ombudsman. The Ombudsman recalls that the EC Treaty empowers

60

him to inquire into possible instances of maladministration in the activities of Community institutions and bodies. It is thus outside his competence to nominate a committee which would assess the level of English of the complainants' son. 1.5 The Ombudsman would like to recall that the complaint is only directed at the European School of Ixelles. In these circumstances, the scope of his inquiry is limited to the European School of Ixelles. 1.6 In their further observations, the complainants pointed out that they had applied to the European School of Ixelles to enrol their son in the English-language section for the school year 2004/2005. They further alleged that they had not received any reply to the two e-mails dated 29 July 2004 sent to the Directors of the European School of Uccle and Ixelles until the time of their further observations. 1.7 The Ombudsman notes that these allegations were not included in the original complaint. He takes the view that, in order not to delay the course of the present inquiry, it is not appropriate to extend the scope of the present inquiry so as to include the new allegations presented in the complainants' further observations on the Commission's opinion. The complainants are free to address their new allegations to the Commission and to lodge a new complaint with the Ombudsman if they should not receive a satisfactory reply from the Commission. 2. The alleged lack of transparency and objectivity in the procedure for the selection of the pupils of the European School of Ixelles 2.1 The complainants alleged that they had not been given the reasons justifying the decision not to enrol their son in the English-language section of the European School of Ixelles for the school year 2003/2004. According to the complainants, this constituted a lack of transparency and objectivity in the procedure for the selection of pupils. 2.2 The Commission pointed out that, even though it had no competence in the educational field or in the management of the European Schools, its services had shown concern for the case of the complainants' son and had invited the two European Schools concerned to inform the complainants of the grounds of the decision not to enrol their son in the English-language section. The Commission submitted that the European School of Ixelles, after having noted that the languages mainly spoken by the complainants' son were Italian and Spanish, had been unable to enrol him, due to the lack of available places in the school. The European School of Ixelles had advised the complainants to contact the European School of Uccle and had forwarded the file of the complainants' son to the latter. According to the Commission, the complainants then applied for the enrolment of their son in the English-language section of the European School of Uccle for the school year 2003/2004. They had already applied on 16 April 2002 and an interview in English had been held on 15 May 2002. On the basis of the results of this interview,

61

the European School of Uccle had suggested the enrolment of the complainants' son in the Spanish-language section. This suggestion was rejected by the complainants. 2.3 In October 2004, the Ombudsman asked the Commission to explain the discrepancy between the statement made in its opinion pursuant to which the Board of Governors had decided that "the enrolment in one of the language sections of the European Schools () shall be decided, as a rule, on the basis of the language mainly spoken by the pupil" and the letter of the European School of Ixelles dated 11 July 2003 in which it informed the complainants that it was unable to enrol their son in the English-language section of the school due to the lack of available places in the school. 2.4 In its reply, the Commission stated that the Board of Governors decided that the Directors of the three European Schools in Brussels should enforce its decision pursuant to which the enrolment in one of the language sections of the European Schools shall be decided as a rule, on the basis of the language mainly spoken by the pupil. With a view to reducing the costs and over-crowding in the three European Schools, the Board of Governors further decided that the Directors of the three European Schools in Brussels should consult with each other on a regular basis when deciding on admissions and should treat the three European Schools as a single school. In the complainants' case, the Director of the European School of Ixelles advised the complainants to make an application to the European School in Uccle since the class in which they wished their son to be enrolled in the European School of Ixelles was full. The Director of the European School of Ixelles was therefore referring to the decision of the Board of Governors pursuant to which the three European Schools had to be considered as a single school. He did not consider it necessary to refer to the decision of the Board of Governors pursuant to which the enrolment in one of the language sections of the European Schools shall be decided as a rule, on the basis of the language mainly spoken by the pupil . However, the Director further suggested to the parents to have their son enrolled in the Italian or Spanish section in the European School in Uccle. The child was therefore not refused access to the European School system. The Commission therefore did not see any discrepancy between the two decisions of the Board of Governors and the reasons given by the Director of the European School of lxelles for not accepting the son of the complainants in the English-language section of the school. 2.5 In their further observations, the complainants argued that the conditions of admission to the European Schools were still misleading and confused. 2.6 As regards the alleged lack of objectivity, the Ombudsman notes that, in his letter dated 25 September 2003, the Director of the European School of Ixelles gave several reasons to the complainants in order to justify his decision not to enrol their son in the English-language section, namely the languages mainly spoken by their son and the lack of available places in the relevant section. The Ombudsman considers that these

62

reasons constitute objective considerations which could have been invoked in any given case to justify the decision not to enrol a pupil in a specific language section. In view of the above, the Ombudsman considers that the complainants have not substantiated their allegation that there was a lack of objectivity in the procedure for the selection of the pupils of the European School of Ixelles. 2.7 As regards the alleged lack of transparency, the Ombudsman notes that in his letter dated 25 September 2003, the Director of the European School of Ixelles pointed out that "given that the languages mainly spoken by the complainants' son are Spanish and Italian, and that the English-language and Spanish-language section are full and that there is no Italian-language section, we had to advise the [complainants] to refer to the European School of [Uccle] to which we had transferred the file, with the possibility for this school to offer the choice of a Spanish, Italian and Englishlanguage sections." 2.8 The Ombudsman further notes that the Director of the European School of Ixelles referred both to the languages that, according to him, were mainly spoken by the complainants' son, i.e., Spanish and Italian, and to the lack of available places in the English-language section. Thus, the decision appears to be based on both of these considerations. However, if the admission to a specific language-section depended on the languages mainly spoken by the pupil, it is difficult to understand why the Director of the European School of Ixelles also referred to the lack of available places in the English-language section, given that this language did not, according to the Director, belong to the languages mainly spoken by the complainants' son. If, on the other hand, the admission to a specific language-section depended on the availability of places in the relevant section, it is difficult to understand why the Director of the European School referred to the languages mainly spoken by the complainants' son. The Ombudsman therefore considers that the letter of the Director of the European School of Ixelles was not clear enough to enable the complainants to understand the reasons for his decision not to enrol their son in the English-language section. This constitutes a lack of transparency in the procedure for the selection of the pupils and thus an instance of maladministration. 3. The alleged failure to respect Article 4 (4) and (6) of the Convention defining the Statute of the European Schools, and articles 14, 21, 22 and 24 of the Charter of Fundamental Rights of the European Union 3.1 The complainants alleged that Article 4 (4) and (6) of the Convention defining the Statute of the European Schools and Articles 14, 21, 22 and 24 of the Charter of Fundamental Rights of the European Union had been infringed. According to the complainants, the right to instruction and education of one's choice, the principle of non-discrimination on the basis of nationality and language, and the rights of the child related to his/her instruction had not been respected. 3.2 The Commission stated that the rule pursuant to which the Board of Governors had decided that the enrolment in one of the language sections of the European

63

Schools had to be decided on the basis of the language mainly spoken by the pupil aimed to ensure a better education of the latter and to avoid a drop in the level of education in the class. 3.3 The Ombudsman notes that Article 4 (4) and Article 4 (6) of the Convention defining the Statute of the European Schools state that "The education given in the Schools shall be organised on the following principles: a particular effort shall be made to give pupils a thorough knowledge of modern languages (Article 4 (4) () in education and instruction, the conscience and convictions of individuals shall be respected" (Article 4 (6)). He further notes that pupils admitted to the European Schools are normally placed in the language section corresponding to the language spoken at home. If necessary they may be required to sit an entrance examination to determine their level of proficiency in the language of the section chosen. 3.4 The Ombudsman considers that it does not fall within his competence to determine the level of proficiency in English of the complainants' son. This assessment falls within the competence of the European Schools. The decision of the European School not to enrol the complainants' son in the English-language section for the school year 2003/2004 appears to be reasonable, in view of the outcome of the two interviews which had been organised to determine his level of proficiency in English. In these circumstances, the Ombudsman considers that the complainants have not submitted sufficient evidence to show that Article 4 (4) and (6) of the Convention defining the Statute of the European Schools and Articles 14, 21, 22 and 24 of the Charter of Fundamental Rights of the European Union were infringed. The Ombudsman therefore concludes that there appears to have been no maladministration by the European Commission as regards this aspect of the case. 4. The alleged failure to reply to the complainants' letter dated 1 July 2003 4.1 The complainants alleged that they had not received any reply to the letter dated 1 July 2003 sent by their lawyer to the European School of Ixelles and to the Representative of the European Schools in the European Commission. In this letter, they had requested the enrolment of their son in the English-language section for the school year 2003/2004. 4.2 The Commission pointed out that it was regrettable that there had been a delay in answering the complainants' letter. According to the Commission, however, the complainants could not deny that the European Schools had clearly informed them of the conditions of admission. 4.3 In October 2004, the Ombudsman asked the Commission to indicate whether a reply had been sent to the complainants' letter of 1 July 2003. 4.4 In its reply, the Commission stated that the reply to the complainants' letter of 1 July 2003 had been late but that due consideration should be given to the fact that the summer vacation had intervened and that both the end and beginning of the school

64

year had been very busy periods for schools. A copy of the reply of the Director of the European School of Ixelles, dated 25 September 2003, was enclosed with the Commission's reply. 4.5 In their further observations, the complainants argued that that the reasons given by the Commission in its further opinion were not relevant and could not justify the delay in answering the letter. 4.6 The Ombudsman would like to recall that the Commission's responsibility does not extend to questions concerning the internal management of the Schools and that the relevant point to be examined hereinafter is the alleged delay of the Commission in replying to the complainants' letter. The Ombudsman notes that the Commission refers to the reply of the European School of Ixelles dated 25 September 2003. The issue of interest is therefore to determine whether the period of time between the complainants' letter and the reply of the European School of Ixelles constitutes a delay. The Ombudsman notes that, in his letter dated 1 July 2003, the complainants' lawyer asked the Director of the European School of Ixelles and the Representative of the European Schools in the European Commission to reconsider their position. In its reply, the European School of Ixelles confirmed its decision not to enrol the complainants' son in the English-language section for the school year 2003/2004. Therefore, even if this reply was late, the Ombudsman considers that the complainants had already been informed of the decision of the European School of Ixelles on 11 June 2003. In these circumstances, the Ombudsman considers that the complainants have not provided any evidence that they had suffered harm due to the delay in the reply of the letter of their lawyer dated 1 July 2003. 4.7 In view of the above, the Ombudsman concludes that there appears to have been no maladministration by the European Commission as regards this aspect of the case. The Commission's detailed opinion In its detailed opinion on the draft recommendation, the Commission stated that, on 27 April 2005, the Board of Governors had decided that the Board of Inspectors should look into the organisation of language sections in the European Schools in general. Therefore, the conditions of admission to the language sections of the European Schools would be further examined by the European Schools' inspectors. The Commission had in the meantime transmitted to the Secretary General of the European Schools a request for clarification of the criteria of admission of pupils in the European Schools. The Commission tried to promote good management, transparency and accountability in the European School system. In this respect, the Commission launched a wide-ranging consultation on the development of the European Schools which was open until 30 June 2005(2).

65

In conclusion, the Commission had indicated its concern on the issue raised by the complainants to the Secretary General of the European Schools and awaited the report from the Board of Inspectors and then the discussion of the Board of Governors. The complainants' observations No observations were received from the complainants by the date set for this purpose. However, during a telephone conversation on 3 October 2005, Ms C. informed the Ombudsman's services that she and her partner were satisfied by the Commission's detailed opinion and that they had no observations to make on it. Ms C. further informed the Ombudsman's services that her son had been accepted in the Englishlanguage section of the European School of Ixelles for the school year 2005/2006. Ms C. thanked the Ombudsman for his successful intervention on behalf of herself and her partner.

THE DECISION 1.1 On 28 July 2003, the complainants made a complaint to the European Ombudsman against the European Commission concerning the refusal of the European School of Ixelles to enrol your son in the English-language section. They alleged that they had not been given the reasons justifying the decision not to enrol their son in the English-language section of the European School of Ixelles for the school year 2003/2004. According to the complainants, this constituted a lack of transparency and objectivity in the procedure for the selection of pupils. The complainants claimed that the decision of the European School of Ixelles dated 11 June 2003 not to enrol their son in the English-language section should be annulled. They claimed that their son should be enrolled in the English-language section for the school year 2003/2004. 1.2 On 14 March 2005, the Ombudsman addressed a draft recommendation to the Commission according to which the latter should endeavour to clarify the conditions of admission of pupils in the language sections of the European Schools. 1.3 In its detailed opinion, the Commission informed the Ombudsman that, on 27 April 2005, the Board of Governors had decided that the Board of Inspectors should look into the organisation of language sections in the European Schools in general. Therefore, the conditions of admission to the language sections of the European Schools would be further examined by the European Schools inspectors. The Commission had in the meantime transmitted to the Secretary General of the European Schools the request for clarification of the criteria of admission of pupils in the European Schools. The Commission tries to promote good management, transparency and accountability in the European School system. In this respect, the

66

Commission launched a wide-ranging consultation on the development of the European Schools which was open until 30 June 2005(3). In conclusion, the Commission indicated its concern on the issue raised by the complainants to the Secretary General of the European Schools and awaited the report from the Board of Inspectors and then the discussion in the Board of Governors. 1.4 No written observations were received from the complainants by the date set for this purpose. However, during a telephone conversation of 3 October 2005, Ms C. informed the Ombudsman's services that she and her partner were satisfied by the Commission's detailed opinion and that they had no observations to make on it. The complainant further informed the Ombudsman's services that their son had been accepted in the English-language section of the European School of Ixelles for the school year 2005/2006. The complainant thanked the Ombudsman for his successful intervention on behalf of herself and her partner. Conclusion On the basis of his inquiries into the allegation of lack of transparency, the Ombudsman concludes that the Commission has accepted the Ombudsman's draft recommendation and that the measures taken by the Commission are satisfactory. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Pupils of Category I are pupils who have to be admitted by the European Schools because they are children of staff in the service of the Community institutions or of a limited number of other organisations employed directly and continuously for a minimum period of one year.
(2) (1)

Communication from the Commission to the Council and the ParliamentConsultation on Options for developing the European Schools System, COM (2004) 519, 20.07.2004. Communication from the Commission to the Council and the ParliamentConsultation on Options for developing the European Schools System, COM (2004) 519, 20.07.2004.

(3)

67

Decision of the European Ombudsman on complaint 1687/2003/JMA against the European Commission

Strasbourg, 10 March 2005

Dear Messrs B. and M., On 4 September 2003, you lodged a complaint with the European Ombudsman against the European Commission, concerning the alleged failure of that institution to take up your formal complaint against the refusal of the Spanish authorities to grant a family reunification visa to one of you. On 27 October 2003, I forwarded your complaint to the President of the Commission. I received the Commission's opinion on 17 December 2003, which I forwarded to you with an invitation to make observations. On 27 January 2004, you sent me your observations on the Commission's opinion. On 9 July 2004, you forwarded additional information to me. I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT The facts of the case according to the complainants are, in summary, as follows: On 27 July 2002, Mr B., an Argentinean citizen living in Buenos Aires, applied for a family reunification visa in order to rejoin his partner, Mr M., a Spanish national living in Madrid. On 13 August 2002, the Spanish Consulate in Buenos Aires refused the request on the grounds that it was not in conformity with the relevant provisions of Spanish legislation. In order to seek redress, the complainants submitted a complaint to the Spanish Ombudsman, and lodged an action against the Spanish administration with the Superior Court of Madrid. In October 2002, Ms Izquierdo Rojo MEP raised this problem in an oral question which she addressed to the Commission. The complainants formally submitted a complaint to the Commission on 10 October 2002. In their complaint against the Spanish authorities, they alleged that the refusal to grant them a family reunification visa was discriminatory and contravened Article 13 of the EC Treaty, a number of EU Directives, several resolutions adopted by the European Parliament, and the principles recognised by the Community courts.

68

In its reply dated 18 November 2002, the Commission explained that Community law did not govern the type of situation complained against. The institution noted that the Directive 2000/78/CE of the European Council was not applicable to the case rationae materiae since it only covered discrimination in work-related matters. As regards family reunification, EU law concerned only those European citizens who have exercised their right to free-movement. Even though the Commission's proposed Directive of 23 May 2001 on the right of Union citizens and their family members to move and reside freely within the territory of the Member States extends family reunification rights to non-married couples, this extension is applicable only if the national law of the Member State concerned gives non-married couples the same rights as married couples. The Commission, therefore suggested that the complainants refer the matter to the European Court of Human Rights. Since the complainants considered that the Commission's reasoning was not convincing, they asked for a reconsideration of the institution's position on 4 December 2002. In the complainants' view the Commission had not made use of all its legal instruments to ensure that, in their case, the Spanish authorities took heed of the obligation enshrined in Article 13 of the EC Treaty. In its reply of 6 February 2003, the Commission confirmed its position, and justified its limited remit to intervene in the case on the grounds that EU law does not govern family-law matters unless free-movement rights are at stake. The Commission stressed that in this issue only the national law of each Member State would be applicable. In view of the information submitted by the complainants, the Ombudsman asked the Commission to submit an opinion on the following allegation: The Commission did not properly handle the formal complaint lodged by the complainants against the Spanish authorities, since its services interpreted the applicable Community rules, in particular Article 13 of the EC Treaty, in an unduly restrictive fashion.

THE INQUIRY The Commission's opinion In its opinion, the Commission briefly described its exchanges with the complainants, and explained in detail the contents of the replies given by its services. The institution noted that the complainants first wrote to its Secretariat-General on 10 October 2002. The letter complained about the refusal of the Spanish authorities to grant a residence visa for the purpose of family reunification to one of the complainants, Mr B, a national of Argentine, who was to join Mr M, a Spanish national. In the complainants' view, the refusal was based on the fact that both

69

partners were of the same gender. Therefore, it constituted an instance of discrimination prohibited by Article 13 of the EC Treaty since it was based on grounds of sexual orientation. In its reply of 18 November 2002, the Commission services explained that the institution placed great importance on the question of non-discrimination. Accordingly, in November 1999, it had adopted a number of measures based on Article 13 of the EC Treaty, to combat this type of situation. The Commission referred to two Directives adopted by the Council in 2000, namely Directives 2000/43/EC of 29 June 2000(1), concerning discrimination based on racial or ethnic origin, and 2000/78/EC of 27 November 2000(2), regarding equal treatment in employment. The institution also mentioned Council Decision of 27 November 2000, establishing a Community action programme to combat discrimination (2001 to 2006)(3). The institution noted that the main legislative instrument to combat both direct and indirect discrimination based on sexual orientation is Directive 2000/78, even though its provisions only apply to matters pertaining to employment. The problem which the complainants brought to the attention of the Commission involved instead a family reunification matter which is not governed by Community law, being subject to the national law of each Member State. The Commission stated that point 3 of Article 63 (3) of the EC Treaty foresees the adoption by the Council, in a five year period following the coming into force of the Amsterdam Treaty, of measures on immigration policy. Letter (a) of that provision establishes that the Council should adopt measures concerning the conditions of entry and residence, of long-term visas and residence permits, including those intended for the family reunification. These measures should take proper account of the principle of non-discrimination set out in the EU Charter of Fundamental Rights. The Commission referred to its proposed Directive on the right to family reunification, which had been adopted on 20 December 2003. The Directive establishes the conditions to exercise the right to family reunification by the nationals of third countries who live legally in the territory of the Member States. Following a request from the Council, the Commission removed a provision of its original proposal, which would have extended the scope of the Directive to nationals of the Member States, even if they had not exercised their rights to free movement. It was thus decided to regulate the right to family reunification of this group of citizens by means of a separate legislative proposal. The Community legislation in force regarding free movement and residence of the citizens of the Union and the members of his/her family considers only the family reunification of spouses but not of unmarried partners. In addition, the interpretation of the Community courts as regards free movement has not assimilated an unmarried partner to a spouse.

70

The Commission explained that, in order to prevent any type of discrimination based on sexual preferences, its proposed directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States extends the right to family reunification to non-married partners, provided that the legislation of each Member State grants identical rights to married and unmarried couples. On the basis of the existing Community legal instruments, the Commission concluded that the problem encountered by the complainants fell beyond the scope of Community law at its current stage of development. The institution therefore suggested that the complainants seek redress at the national level or before the European Court of Human Rights. The Commission also mentioned that the problem had also been the object of an oral question submitted by Mrs Izquierdo Rojo MEP. In October 2002, Commissioner Vitorino replied to the query with the same arguments used by the Commission in the letter to the complainants of 18 November 2002. On 4 December 2002, the complainants wrote to the Commission expressing their disagreement with the institution's interpretation of the scope of Article 13 of the EC Treaty. In its reply of 27 February 2003, the Commission explained that the existing legal instruments do not give it any power in family-law related matters. The institution stressed that Article 13 of the EC Treaty can only be used as a legal basis on matters which fall within the Community's remit. Since this is not the case in the area of family law, the Commission explained that it does not have the power to harmonise the contents of family law in the Member States. It noted that the question of family reunification of nationals of a Member State who have not made use of their free movement rights remains a national issue subject to national law. On this basis, and since the issue did not concern an EU action or policy, but rather a national matter, the Commission believed that the provisions of the EU Charter of Fundamental Rights, in particular Articles 20 and 21 regarding non-discrimination on the basis of sexual orientation, would not be applicable to the problem. The Commission also referred in its opinion to the reply given by its services to Petition 1427/2003 which concerned the same problem. In October 2003, the institution updated its previous contributions to the Parliament and added that its proposed directive on the free movement of Union citizens and their families had been amended in order to give equal treatment to married and unmarried couples, but that such treatment would be conditional on the recognition of similar status in the Member State of reference. In such event, an unmarried couple could then move freely to another Member State whose authorities would not be allowed to restrict the rights to free movement of the unmarried partners. The Commission took the view that it had properly explained to the complainants why it could not intervene in their problem. It considered that its services had replied to the

71

complainants' request correctly, and that no maladministration had therefore taken place in this case. The complainants' observations In their observations on the Commissions opinion, the complainants repeated the allegations made in the complaint. In their view, Community law was pertinent for the solution of their problem, and the Commission should have been willing to apply the relevant Community rules. They referred to Directive 2000/78, in particular to its whereas clauses 11 and 12, which state that discrimination based on sexual orientation may undermine the achievement of the objectives of the EC Treaty, and therefore that any direct or indirect discrimination based on those grounds should be prohibited throughout the Community. The complainants argued that the Spanish authorities refusal of their visa request constituted direct discrimination based on their sexual orientation, and as such, is prohibited by the Directive. Similarly, they considered that Articles 20 and 21 of the EU Charter of Fundamental Rights were also applicable to the case. Lastly, the complainants argued that their point of view was consistent with the case-law of the Community courts.

THE DECISION 1. The Commission's handling of the complaint against the Spanish authorities 1.1 The complainants submitted a formal complaint to the Commission against the decision by the Spanish authorities to refuse one of them a family reunification visa. According to the complainants, the refusal was based on the fact that they are of the same gender and thus constitutes discrimination based on sexual orientation, contrary to Community law. The complainants allege the Commission did not properly handle their complaint against the Spanish authorities, and that the institution interpreted the applicable Community rules, in particular Article 13 of the EC Treaty, in an unduly restrictive fashion. In their observations, the complainants stressed that Community law was pertinent for the solution of their problem, and that the Commission should have applied the relevant Community rules, in particular Article 13 of the EC Treaty, Articles 20 and 21 of the EU Charter of Fundamental Rights and the provisions of Directive 2000/78. 1.2 The Commission argues that, on the basis of the existing Community legal instruments, the problem encountered by the complainants falls beyond the scope of Community law at its current stage of development, and suggests that they seek redress at the national level or before the European Court of Human Rights.

72

The institution explains that Article 13 of the EC Treaty prohibiting discrimination can only be used as a legal basis in matters which fall within the Community's remit, which is not the case for family-law. The same reasoning applies to Articles 20 and 21 of the EU Charter of Fundamental Rights. Furthermore, the Commission argues that the two Directives adopted on the basis of Article 13 of the EC Treaty, Directives 2000/43 and 2000/78, are not applicable to the situation. The Commission also notes that its proposed directive on family reunification only applies to nationals of a Member State who have exercised the right to free movement. In addition, its proposed directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States extends the right to family reunification to non-married partners, only if the legislation of the relevant Member State grants identical rights to married and unmarried couples. 1.3 In order to assess whether the Commission properly handled the complaint submitted by the complainants against the Spanish authorities, the Ombudsman needs first to review whether the reasoning given by the institution to justify the closure of the case, namely that object of their complaint fell beyond the scope of Community law, appears to be reasonable. 1.4 The Ombudsman notes that the principle of non-discrimination, including on grounds of sexual orientation, constitutes a fundamental principle of Community law, enshrined both in the Treaty and in the Charter of Fundamental Rights. It appears, however, that the application of the principle is not universal, but subject to a number of conditions. As set out in Article 13 of the EC Treaty, the Council has been empowered to take appropriate action to combat discrimination based on sexual orientation. Those powers are not unbounded, however, but must be used "within the limits of the powers conferred by it [the Treaty] upon the Community." Similarly, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union proclaim the principle of equality before the law and the prohibition of any discrimination based on grounds, among others, of sexual orientation. However, the Charter is addressed to Member States "only when they are implementing Union law" (Article 51). 1.5 The Ombudsman also notes that the implementation in the Union of the principle of non-discrimination is based on a general action plan(4), which has been accompanied by a number of separate legislative initiatives. To date, only one legal instrument, Directive 2000/78/EC(5) addresses discrimination based on grounds of sexual orientation. As set out in Articles 1 and 3, Directive 2000/78/EC only applies to matters pertaining to access to employment and vocational guidance, employment and working conditions, and membership of a workers/employers organisations. It appears, therefore, that this Directive would not apply to cases involving the entry into

73

the Union or the residence in its territory of third country nationals, as expressly excluded in its Article 3 (2). 1.6 The Ombudsman points out that there appear to be a number of Community legal instruments which might be relevant for the entry of a third-country national into the Union territory in order to join a Union citizen or resident. This situation is currently addressed in the legal system of the Union by two separate legal instruments: (i) Directive 2003/86/EC(6) on the right to family reunification requires Member States to authorise the entry and residence into its territory of certain relatives of the beneficiary, and to do so without discrimination on the basis of sexual orientation(7); (ii) Directive 2004/38/EC on the right to free movement of EU citizens(8), grants the right to move and/or reside into a Member State to all Union citizens and their family members, including the registered partner as well, in the definition of family member. The Ombudsman points out, however, that the provisions of these directives do not cover all possible entry requests into the Community territory by a third country national. As regards Directive 2003/86, Article 1 grants the right to family reunification only to third country nationals residing lawfully in the territory of the Member States. Moreover, as stated in Article 3 (3), members of the family of a Union citizen cannot benefit from the provisions of the Directive. As regards Directive 2004/38, its Article 3 (1) makes clear that the right to free movement within the territory of the EU Member States granted to the Union citizens and their family members and/or partners, only applies if those citizens, "[...] move to or reside in a Member State other that of which they are national". As the Community courts have established, if the right to freedom of movement within the Union has not been exercised, the situation at stake is governed not by Community law, but rather by national law(9). In addition, it has to be borne in mind that the Directive grants a number of rights of free movement and residence to a partner of the EU citizen who has exercised his/her right to freedom of movement, if and only the legislation of the host Member State treat registered partnership as equivalent to marriage(10). 1.7 The Ombudsman is not aware of any Community rule governing the right of family reunification of a Union citizen who has not made use of his/her right to free movement. In the absence of such substantive Community rules relevant to the case, it appears that the principle of non-discrimination is of limited application. As Community courts have held, respect for the fundamental human rights cannot have the effect of extending the scope of the Treaty provisions beyond the competences of the Community(11).

74

1.8 On the basis of the above considerations, the Ombudsman finds that the justification given by the Commission for rejecting the complaint against the Spanish authorities (i.e. that the problem encountered by the complainants fell beyond the scope of Community law at its current stage of development), appears to be reasonable. Taking into account that the Commission's communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law establishes that correspondence from citizens setting out a grievance which clearly falls outside the scope of Community law will not be investigable as a complaint by the Commission(12), the Ombudsman takes the view that the Commission acted within the limits of its legal authority when it decided not to pursue an inquiry into the complainants' case. The Ombudsman also notes that the Commission informed the complainants of the reasons for its position on 18 November 2002 and in its further correspondence. The Ombudsman has therefore concluded that the inquiry has not revealed an instance of maladministration on the part of the Commission. 2. Conclusion On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Since, pursuant to the Commission's suggestion that the complainants seek redress at the national level, they lodged a complaint with the Spanish ombudsman, a copy of this decision will also be sent to that institution, for information. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; OJ L 180 , 19/07/2000 P. 0022 - 0026.
(2) (1)

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; OJ L 303 , 02/12/2000 P. 0016 - 0022.

75

Council Decision of 27 November 2000 establishing a Community action programme to combat discrimination (2001 to 2006); OJ L 303 , 02/12/2000 P. 0023 0028.
(4)

(3)

See supra, note 3. See supra, note 2.

(5)

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification; OJ L 251, 03/10/2003 pp. 0012 - 0018.
(7)

(6)

Whereas clause num. 5.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States; OJ L 158 , 30/04/2004 pp. 0077 - 0123.
(9)

(8)

Joined cases 35 and 36/82 Elestina Esselina Christina Morson v State of the Netherlands and Head of the Plaatselijke Politie; Sweradjie Jhanjan v State of the Netherlands (references for a preliminary ruling) [1982] ECR 03723, par. 16-17. Article 2.2.b.

(10)

(11)

Case C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd. (reference for a preliminary ruling): [1998] ECR I-00621, par. 45. Point 3, Annex; OJ 2002, C 244, p. 5

(12)

76

Decision of the European Ombudsman on complaint 2097/2003/(ADB)PB against the European Personnel Selection Office

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 8 September 2005

Dear Sir, On 4 November 2003, you made a complaint to the European Ombudsman concerning access to documents in relation to your participation in the recruitment competition COM/C/2/02. On 27 November 2003, I forwarded the complaint to the Director of the European Personnel Selection Office. The opinion on the complaint was submitted by the European Commission on 8 March 2004. I forwarded it to you with an invitation to make observations, if you so wished. No observations were received from you. On 25 October 2004, I addressed a draft recommendation to EPSO, and I informed you about my draft recommendation on that same date. On 15 December 2004, I sent you a translation of my draft recommendation. On 14 February 2005, EPSO and the Commission submitted their joint opinion on my draft recommendation. I forwarded it to you with an invitation to make observations by 31 March 2005. No observations were received from you by that date. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The complainant participated in competition COM/C/2/02, which was held to establish a reserve list of German-speaking typists. The typing test and the oral test, respectively test (f) and (g), were carried out one after the other on the same day. The complainant obtained 8 points in test (f) and thereby failed to reach the pass mark, which was 10. On 30 July 2003, the complainant therefore wrote to the Commission to ask for clarifications regarding his mark and a review of the test. He asked for an explanation of the selection criteria and for a copy of his examination paper.

77

On 16 October 2003, the European Personnel Selection Office ('EPSO') sent the complainant a copy of the evaluation sheet for his test and informed him that his test had been assessed as to completeness, layout, formatting and typing errors. EPSO however informed the complainant that it could neither disclose the examination paper nor the criteria used by the Selection Board to mark the test. EPSO argued that according to the notice of competition the typing test was part of the oral test and was therefore covered by the duty to keep the proceedings of the Selection Board confidential, as required by Article 6 of Annex III of the Staff Regulations. According to EPSO, this principle had been confirmed by the European Ombudsman in his decision 481/2001/IP. Finally, EPSO informed the complainant that about 75% of the candidates had obtained at least the pass mark in test (f). The complainant was dissatisfied with EPSO's answer and therefore lodged a complaint with the European Ombudsman. He alleged, in summary, that EPSO had failed to give him access to a copy of his examination paper and to inform him about the criteria used to mark the test. He claimed that he should be given access to a copy of his marked examination paper and be informed of the criteria used to mark the test. He referred to the Ombudsman's draft recommendation in complaint 2097/2002/GG(1) and stated that he wanted access so as to be able to improve his performance in future recruitment competitions.

THE INQUIRY The complaint was sent to EPSO for opinion. The opinion that the Ombudsman received was however written by the European Commission. The Commission's opinion The Commission noted that the complainant had been sent the evaluation sheet, which indicated that the complainant's test had been deemed insufficient in respect of layout, formatting and typing. With regard to the complainant's request for access to a copy of his marked examination paper and the evaluation criteria ("critres de correction"), the Commission stated that those documents form an integral part of the oral examination, and that they are therefore covered by the secrecy referred to in Article 6 Annex III of the Staff Regulations. Moreover, reference was made to the European Ombudsman's decision in case 481/2001/IP, in which, according to the Commission, this secrecy requirement had been confirmed. The Commission noted the complainant's reference to the European Ombudsman's draft recommendation in complaint 2097/2002/GG, and remarked that the complainant had received the evaluation sheet for his practical examination as well as the comments of the selection board. According to the Commission, the evaluation

78

sheet contained all the explanations regarding the errors committed, thus enabling the complainant to avoid such errors in the future. The Commission stated that two points should be noted: (i) The practical examination took place the same day as the oral examination, for which reason the deliberations were covered by the secrecy appertaining to the selection boards. (ii) Moreover, the correction of the practical examination had been made directly on the original examination script. The corrections and possible remarks added during the corrections were therefore inseparable from the examination paper itself. According to the Commission, it was established case-law that the duty to give reasons does not imply that copies of the examination paper containing the selection board's corrections should be communicated to the applicants. The Commission referred to the Court's decision in the Innamorati case(2). As regards the Ombudsman's draft recommendation in case 2097/2002/GG, the Commission stated that the complainant had failed to mention that the Commission had already committed itself to a practice of giving access to examination papers applicable to recruitment competitions organised after 1 July 2000. According to the Commission, this practice consisted of separating the individual evaluation sheets, on which each individual evaluator puts his or her marks, from the final evaluation sheet adopted by the selection board, and to give applicants (who so request) access to the latter. This practice had, according to the Commission, been respected in the present case. The complainant's observations The Commission's opinion was forwarded to the complainant, from whom the Ombudsman received no observations.

THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation On 25 October 2004, the Ombudsman addressed the following draft recommendations to EPSO:

EPSO should provide the complainant with a copy of his written examination paper.

79

EPSO should furthermore reconsider its refusal to give the complainant access to the evaluation criteria, and give access unless valid grounds prevent their disclosure.

The draft recommendations were based on the following considerations: 1. Alleged failure to give access to the examination paper 1.1 The complainant alleged that EPSO had failed to give him access to his examination paper. 1.2 The Commission stated that the complainant could not be given a copy of his examination paper containing the written marks and comments of the evaluators. 1.3 The Commission referred to Article 6 of Annex III of the Staff Regulations, which establishes the secret nature of the work of the selection board, and to the decision of the Court in the Innamorati case(3). The Commission furthermore indicated that since the practical typing test had been organised the same day as the oral examination, the former was part of the oral examination and therefore the complainant could not receive a copy of his examination paper. The Commission referred to the European Ombudsman's decision on complaint 481/2001/IP in support of its position. 1.4 The Commission furthermore stated that its practice on access to competition documents implied that access is given - as in this case - to the final evaluation sheet. 1.5 The Ombudsman first noted that in the decision on complaint 481/2001/IP, it had been accepted that access to the minutes of the oral examination could be refused in that case. The present case did not, however, concern minutes of an oral examination, but a copy of a written examination paper. The fact that the practical test and the oral examination were held on the same day did not imply that they were inseparable. Part B. of the notice of competition described the practical test and the oral examination as two separate evaluation phases ('f' and 'b') with separate contents and marking methods. 1.6 With regard to the Commission's commitment to provide access to competition documents, the Ombudsman noted that this commitment was formulated as follows: "[t]he Commission welcomes the recommendation you made [...] and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination paper, upon request, from 1 July 2000 onwards" (letter from Commission President Prodi to the Ombudsman, dated 7 December 1999). The Ombudsman had subsequently dealt with cases where applicants appeared to have received copies of their examination papers as a matter of routine application of the Commission's new rules. 1.7 In the present case, the Commission put forward that the correction of the practical examination had been made directly on the original examination script, and that the

80

corrections and possible remarks added during the corrections were therefore inseparable from the examination paper itself. 1.8 The Ombudsman noted that the competition here concerned was organised two years after the Commission began to give applicants access to their examination papers. The responsibility for adopting the necessary arrangements to ensure that such access could be given lay with the Commission. This implied a duty to take corrective measures when such arrangements had not been adopted. In the present case, the practical circumstances referred to by the Commission as a reason for not providing access should not have prevented it from taking measures to ensure that its above commitment could be respected. 1.9 On the basis of the above findings, the Ombudsman considered that the Commission had failed to justify why the applicant was not given a copy of his examination paper in accordance with the Commission's commitment to give applicants access to their marked examination papers. This constituted an instance of maladministration, and the Ombudsman therefore made the draft recommendation referred to above. 2. Alleged failure to inform the complainant about the evaluation criteria 2.1 The complainant alleged that EPSO had failed to inform him about the criteria used to mark the test. He claimed that he should be informed of the criteria used to mark the test, and referred to the Ombudsman's draft recommendation in complaint 2097/2002/GG. He stated that he wanted access so as to be able to improve his performance in future recruitment competitions. 2.2 The Commission stated that the evaluation criteria formed an integral part of the oral examination, and were therefore covered by the secrecy referred to in Article 6 of Annex III of the Staff Regulations. The Commission also stated that it was established case-law that the duty to give reasons for recruitment decisions was satisfied by communicating the number of marks to the applicant in question. The Commission referred to the Court's decision in the Innamorati case (1996)(4). 2.3 The Ombudsman had already examined the issue of access to evaluation criteria in his draft recommendation in complaint 2028/2003/(MF)PB, submitted to EPSO on 7 October 2004. In that case, EPSO and the Commission had taken the view that the decision in the Innamorati case obliged them to refuse access to the selection criteria under Article 4(3)(ii) Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents(5). In his draft recommendation, the Ombudsman made the following comments: "As regards the Commission's view that it had to refuse access in the light of the Innamorati case, the Ombudsman considers it useful to quote the following paragraphs of the judgement:

81

'29 The criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates' respective merits. They are designed to guarantee, in the candidates' own interests, a certain consistency in the board's assessments, especially where there is a large number of candidates. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board's assessments. 30 The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. The marks are the expression of the value judgments made concerning each of them. 31 Having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board's decisions are based.' (Emphasis added.) It is clear from the above that the Innamorati case only concerned the duty to state reasons for individual decisions taken specifically in the context of recruitment competitions. The decision in the Innamorati case does not, therefore, concern the issue of access to documents. In the Ombudsman's view, the decision in the Innamorati case cannot therefore be invoked as a legal precedent obliging the institutions to keep selection criteria secret under Regulation 1049/2001. The Ombudsman notes that recent decisions of the Court of First Instance appear to support this finding. In the Pyres case(6) and the Alexandratos and Panagiotou case(7), the Court of First Instance found that although the communication of the mark obtained by candidates in the various tests constitutes an adequate statement of the reasons on which the selection board's decision is based, this does not imply that a candidate who so requests cannot be informed about the selection board's selection criteria. The Ombudsman furthermore notes that to allow access to selection criteria appears to be consistent with the European Union's policy and legislation on transparency and public access to documents, which have evolved significantly since the Court's decision in the Innamorati case in 1996. In 1997, the Treaty of Amsterdam amended the Treaty on European Union, inserting the following principle into Article 1 of the Common Provisions of that Treaty: 'This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.' (Emphases added.) The Treaty of Amsterdam also inserted Article 255 into the Treaty establishing the European Communities. Article 255 of the Treaty provides that:

82

'Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined [...]'. Article 255(2) provides that '[g]eneral principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.' On the basis of this provision, the Council and the Parliament adopted Regulation 1049/2001 regarding public access on 30 May 2001(8). The preamble of Regulation 1049/2001 confirms that 'openness [...] guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system' (recital 2, emphases added), and that 'in principle, all documents of the institutions should be accessible to the public' (recital 11). Article 1(b) expressly provides that Regulation 1049/2001 is intended to 'establish rules ensuring the easiest possible exercise of this right'. In the light of the above, the Ombudsman considers that EPSO and the Commission were wrong to consider that the decision in the Innamorati case obliged them to refuse access to the selection criteria under Article 4(3)(ii) Regulation 1049/2001. EPSO and the Commission therefore failed to give adequate reasons for refusing access. This constitutes an instance of maladministration, and the Ombudsman therefore makes the draft recommendation below. The Ombudsman furthermore wishes to add that the exception contained in Article 4(3)(ii) does not appear to apply to the kind of document here concerned. Article 4(3)(ii) applies to 'documents containing opinions'. In the Ombudsman's view, a document containing selection criteria cannot be considered a 'document containing opinions'. 2.4 The Ombudsman considered that these considerations were equally relevant and applicable to the present case. On that basis, the Ombudsman considered that the reasons for not informing the complainant of the evaluation criteria were inadequate. This constituted an instance of maladministration, and the Ombudsman therefore made the draft recommendation referred to above. EPSO's detailed opinion In its opinion on the Ombudsman's draft recommendation, submitted jointly with the European Commission, EPSO stated inter alia that the selection criteria laid down by the selection board cannot be separated from the various instructions, recommendations and opinions that are given to the individual evaluators. It appeared to consider that all these documents form part of the preparatory works of the

83

selection board and are therefore covered by the secrecy relating to the selection board's deliberations. EPSO also stated that all the documents are connected, and that partial access could therefore not be granted. However, in order to allow the complainant better to understand the marks that he had been given, EPSO enclosed a copy of the complainant's examination paper containing the evaluators' handwritten notes. In a separate note, EPSO furthermore made detailed remarks on those corrections, explaining the requirements in the test. It also pointed out that the assessment of the mistakes appearing on the examination paper was contained in the evaluation sheet, a copy of which had already been sent to the complainant. EPSO emphasised that the release of the examination paper in this case was exceptional, and that it did not create a precedent for future such cases. EPSO furthermore stated that it had started to examine the possibility of providing candidates with a more detailed evaluation sheet in future competitions, in order to allow them better to understand their marks. This detailed evaluation sheet would be provided with the copy of the examination paper. The complainant's observations EPSO's detailed opinion was forwarded to the complainant with an invitation to make observations. No observations were received from the complainant.

THE DECISION 1. Alleged failure to give access to examination paper 1.1 The complainant participated in competition COM/C/2/02, held to establish a reserve list of German-speaking typists. The complainant obtained 8 points in test (f), a typing test, and thereby failed to reach the pass mark, which was 10. On 30 July 2003, the complainant therefore wrote to the Commission to ask for clarifications regarding his mark, a review of the test and a copy of his examination paper. On 16 October 2003, the European Personnel Selection Office (EPSO) sent the complainant a copy of the evaluation sheet for his test and informed him that his test had been assessed as to completeness, layout, formatting and typing errors. EPSO however informed the complainant that it could not disclose the examination paper since it was covered by the duty to keep the proceedings of the Selection Board confidential, as required by article 6 of Annex III of the Staff Regulations. The complainant was dissatisfied with EPSO's answer and therefore lodged a complaint with the European Ombudsman. 1.2 The complaint was sent to EPSO for opinion. The opinion that the Ombudsman received was however written by the European Commission. In its opinion, the Commission stated that the complainant could not be given a copy of his examination paper since the latter contained the written marks and comments of the evaluators.

84

1.3 On 25 October 2004, the Ombudsman addressed a draft recommendation to EPSO, suggesting that EPSO should provide the complainant with a copy of his written examination paper. 1.4 In their detailed opinion on the draft recommendation, EPSO and the Commission enclosed a copy of the complainant's written examination paper to be sent to the complainant. They emphasised that the release of the examination paper in this case was exceptional, and that it did not create a precedent for future cases. 1.5 In the light of the above, the Ombudsman concludes that EPSO has accepted the Ombudsman's draft recommendation and that the measure taken by EPSO to implement it is satisfactory. 2. Alleged failure to inform the complainant about the evaluation criteria 2.1 The complainant alleged that EPSO had failed to inform him about the criteria used to mark the test. He claimed that he should be informed of the criteria used to mark the test, and referred to the Ombudsman's draft recommendation in 2097/2002/GG. He stated that he wanted access so as to be able to improve his performance in future recruitment competitions. 2.2 The Commission stated that the evaluation criteria were covered by the secrecy referred to in Article 6 of Annex III of the Staff Regulations. The Commission also stated that it was established case-law that the duty to give reasons for recruitment decisions was satisfied by communicating the marks to the applicant in question. The Commission referred to the Court's decision in the Innamorati case (1996)(9). 2.3 On 25 October 2004, the Ombudsman made a draft recommendation in which he recommended that EPSO should reconsider its refusal to give the complainant access to the evaluation criteria. 2.4 On 14 February 2005, EPSO, jointly with the Commission, submitted its detailed opinion on the Ombudsman's draft recommendation. EPSO stated that the selection criteria laid down by the selection board cannot be separated from the various instructions, recommendations and opinions that are given to the individual evaluators. It appeared to consider that all these documents form part of the preparatory works of the selection board and are therefore covered by the secrecy relating to the selection board's deliberations. EPSO also stated that all the documents are connected, and that partial access could therefore not be granted. However, in order to allow the complainant better to understand the marks that he had been given, EPSO enclosed a copy of the complainant's examination paper containing the evaluators' handwritten notes. In a separate note, EPSO furthermore made detailed remarks on those corrections, explaining the requirements in the test. It also pointed out that the assessment of the mistakes appearing on the examination paper was contained in the evaluation sheet, a copy of which had already been sent to the complainant.

85

2.5 The Ombudsman received no observations from the complainant. 2.6 The Ombudsman has carefully examined EPSO's detailed opinion, and notes the following: 2.7 As regards the complainant's claim for access to the selection criteria used by the selection board, it appears from EPSO's opinion that it has not felt able to grant access to those criteria. However, the Ombudsman also notes that EPSO, in its detailed opinion on the draft recommendation, enclosed a copy of the complainant's examination paper containing the evaluators' handwritten notes. EPSO stated that it enclosed this document specifically in order to allow the complainant better to understand the marks that he had been given. In a separate note, EPSO furthermore made detailed remarks on those corrections, and pointed out that the assessment of the mistakes indicated on the examination paper was contained on the evaluation sheet, a copy of which had already been sent to the complainant. 2.8 The Ombudsman has not received any observations from the complainant on EPSO's detailed opinion. The Ombudsman notes, however, that in his complaint, the complainant expressly mentioned that he wanted access so as to be able to improve his performance in future recruitment competitions. As noted above, EPSO has in the present case taken steps in order to give the complainant more detailed information to enable him to better understand why he did not pass the relevant test. In doing so, EPSO appears to have given the complainant information that is considerably more detailed than the information that EPSO has previously felt able to give to candidates. The Ombudsman takes the view that the detailed information provided by EPSO should normally help a candidate better to understand the marks that he or she was given. EPSO has accordingly taken an important step to give the complainant useful information on the marking of his examination paper. The Ombudsman therefore considers that there are no grounds for continuing his inquiry into the present part of the case. 2.9 The Ombudsman notes, however, that EPSO's detailed opinion raises important factual and legal issues of a more general nature. The Ombudsman has therefore decided to launch an own-initiative inquiry into the issue of granting candidates access to the selection criteria established by selection boards. I nformation on the outcome of the Ombudsman's own-initiative inquiry will be published on the Ombudsman's homepage (http://www.euro-ombudsman.eu.int). 3. Conclusion With regard to the complainant's claim that he should be given access to his examination paper, the Ombudsman concludes that EPSO has accepted the Ombudsman's draft recommendation and that the measure taken by the EPSO is satisfactory. The Ombudsman therefore closes his inquiry into this part of the case.

86

With regard to the complainant's claim that he should be given access to the selection criteria, the Ombudsman concludes that there are no grounds to continue his inquiry into the present complaint. The Ombudsman has, however, decided to launch an owninitiative inquiry into the issue of granting candidates access to the selection criteria established by selection boards. The Director of EPSO will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------The Ombudsman's draft recommendation in that case was that "[t]he Council of the European Union should allow the complainant to have access to her own marked examination paper."
(2) (1)

Case C-254/95 P Innamorati v Parliament [1996] ECR I-3423. Case C-254/95 P Innamorati v Parliament [1996] ECR I-3423. Case C-254/95 P Innamorati v Parliament [1996] ECR I-3423. Official Journal 2001 L 145, p. 43.

(3)

(4)

(5)

Case T-72/01, Pyres v Commission [2001] ECR-SC 2003 IA-169, paragraphs 70 71. Case T-233/02, Alexandratos and Panagiotou v Council, judgement of 17 September 2003, paragraph 31.
(8) (7)

(6)

Official Journal 2001 L 145, p. 43. Case C-254/95 P Innamorati v Parliament [1996] ECR I-3423.

(9)

87

Decision of the European Ombudsman on complaint 2188/2003/OV against the European Commission

Strasbourg, 17 February 2005

Dear Mr T., On 14 November 2003, you made a complaint to the European Ombudsman concerning your pension rights for the period you worked as an auxiliary agent at the European Commission from 1965 to 1968. This complaint was the follow-up of an earlier complaint (ref. 0878/2003/FA) you made to the Ombudsman. On 15 December 2003, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 19 February 2004. I forwarded it to you on 12 March 2004 with an invitation to make observations. On 29 April 2004, you sent an email informing me that you still had not received the Commission's opinion. By email of 5 May 2004, my office sent you again a copy of the Commission's opinion. As you could not open the enclosure, you sent another e-mail on 12 May 2004 requesting that the opinion be sent again to your postal address. The opinion was sent again to you by post and by fax on 14 May 2004. You sent your observations on 25 May 2004. On 1 August 2004, you sent an additional letter inquiring about your case. My office informed you by telephone on 3 September 2004 on the progress of your case. By letter of 29 October 2004, I wrote to the Commission proposing a friendly solution to your complaint and informed you of the proposal in a letter of the same date. By letter of 7 December 2004, you thanked me for the friendly solution proposal. The Commission sent its additional opinion on 30 November 2004. On 17 December 2004, I forwarded it to you with an invitation to make observations which you made in a telephone conversation with my office on 28 January 2005. I am writing now to let you know the results of the inquiries that have been made.

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

88

By letter of 27 May 2002, the Belgian National Pensions' Office ("Office National des Pensions", hereafter "ONP") informed the complainant that the Commission had paid pension contributions only for the years 1965 and 1966, but not for the years 1967 and 1968. Those years could therefore not be taken into account for the calculation of his pension. The ONP advised the complainant to contact the Commission directly about the matter. Due to the lack of contributions from the Commission, the Greek Insurance Organisation ("IKA") does not recognise, for the calculation of his pension, all the years the complainant has worked at the Commission. On 8 August 2002, the Commission provided the complainant with a certificate, according to which, from 13 July 1965 to 31 December 1966, he was registered with the Belgian pension scheme, and from 1 January 1967 to 31 December 1968, he was under a voluntary insurance with the Greek pension system. On 5 May 2003, the complainant complained to the Ombudsman about the matter (complaint 0878/2003/FA). As he had only very recently written to the Commission about the same issue, the Ombudsman, by letter of 4 July 2003, considered the complaint to be inadmissible since the appropriate prior administrative approaches had not been completed and advised the complainant to wait for the Commission's reply. Further to the issuing of the above certificate, the complainant wrote on 28 May 2003 to DG Personnel and Administration of the Commission pointing out that auxiliary agents were entitled to compulsory insurance by the Commission with the Belgian pension scheme. In order to have his pension rights for the years 1967 and 1968 recognised by IKA in Greece, the complainant asked the Commission to clarify the matter. However, he received no reply to this letter from the Commission. On 14 November 2003, the complainant thus lodged a new complaint with the Ombudsman. In his complaint he made the following claim: The Commission should, for the entire period that the complainant worked as an auxiliary agent (i.e. also including the period from 1 January 1967 to 31 December 1968), recognise that it was obliged to insure him under the Belgian pension scheme.

THE INQUIRY The Commission's opinion The Commission stated that, after a thorough examination of the complainant's file, it had the following comments to make: The complainant indeed worked for the Commission as an auxiliary agent without interruption from 13 July 1965 to 31 December 1968. Contributions were paid to the Belgian scheme ("ONSS", Office National de Scurit Sociale) for the period from 13 July 1965 to 30 September 1966. No contribution to the Belgian scheme was paid after that date.

89

On 23 November 1966, the complainant made a request for the transfer of part of his remuneration (BEF 7 000), justifying his request on the basis of "various costs resulting from his status as a lawyer at the Athens' Bar". The complainant's justification apparently referred to legislation applicable in Greece, which requires lawyers to continue to contribute to their national scheme in order to maintain their affiliation with it. It thus appears that these rules justified the application to the complainant of Article 70.1 of the Conditions of employment of other servants of the European Communities, and more particularly the last phrase of the second paragraph, which gives the possibility to auxiliary agents to continue, on a voluntary basis, to be affiliated to the national scheme to which they belonged before entering into service at the Commission. According to the Commission, this explains the hand-written note "assurance volontaire Grce" on the complainant's financial file, as well as on the ONSS declaration for the 4th semester of 1966, "assurance l'tranger partir du 1er octobre 1966". As the Commission no longer has the payment slips of the time available, it is impossible for it to prove that it stopped deducting a personal contribution from the complainant's salary. Nor does the Commission have proof of the reimbursement by the Commission of two thirds of the complainant's Greek coverage. The Commission is, however, of the opinion that it has fulfilled its obligations towards the complainant. The complainant's observations The complainant observed that the Commission did not dispute the fact that he worked as an auxiliary agent from 13 July 1965 to 31 December 1968. The Commission also admits that it did not pay contributions to the ONSS for the period of 30 September 1966 to 31 December 1968. The Commission was, however, under the obligation to pay contributions for that period.

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

90

1.1 The complainant claims that the Commission should, for the entire period that he has worked as an auxiliary agent (i.e. also including the period from 1 January 1967 to 31 December 1968), recognise that it was obliged to insure him under the Belgian pension scheme. 1.2 The Commission observed that contributions were paid to the Belgian National Social Security Office ("ONSS") for the period from 13 July 1965 to 30 September 1966, but that no contribution to the Belgian scheme was paid after that date. The Commission further pointed out that, on 23 November 1966, the complainant made a request for the transfer of part of his remuneration (BEF 7000), justifying his request on the basis of "various costs resulting from his status as a lawyer at the Athens' Bar". This would explain the hand-written note "assurance volontaire Grce" on the complainant's financial file, as well as on the declaration to the ONSS, 4th semester 1966, "assurance l'tranger partir du 1er octobre 1966". The Commission further pointed out that, as it no longer has the payment slips of the time available, it is impossible for it to prove that it stopped deducting a personal contribution from the complainant's salary. Nor does the Commission have proof of the reimbursement by its services of two thirds of the complainant's Greek coverage. 1.3 The Ombudsman notes that, according to Article 70.1, second paragraph of the Conditions of employment of other servants of the European Communities, "the institution shall be responsible for the employer's contributions required under the legislation in force where the servant is compulsorily affiliated to such a social security scheme, or for two thirds of the servant's contributions where he remains voluntarily affiliated to the national social security scheme of which he was a member before he entered the service of the Communities or where he voluntarily joins a national social security scheme". 1.4 It appears from the file that the complainant and the Commission agree that the complainant worked as an auxiliary agent for the Commission from 13 July 1965 to 31 December 1968. However, the parties disagree about the national pension scheme to which the complainant, as an auxiliary agent, was affiliated and about the contributions paid. 1.5 From the only documents of the complainant's file which are still available today, it appears that the situation concerning the complainant's pension rights is as follows: 1.6 The certificates of 7 July and 8 August 2002, established by DG Personnel and Administration of the Commission, certify that the complainant was registered with the Belgian social security system from 13 July 1965 to 31 December 1966, and had a voluntary insurance with the Greek social security system from 1 January 1967 to 31 December 1968. Similarly, the letter of the Belgian National Pensions' Office ("ONP") to the complainant, dated 27 May 2002, mentions that contributions were paid only for the years 1965 and 1966, and that therefore the years 1967 and 1968 could not be taken into account for the calculation of the complainant's pension.

91

1.7 In its opinion on the present complaint, however, the Commission provided different information, namely that it paid contributions to the Belgian pension scheme from 13 July 1965 to 30 September 1966, i.e. three months less than mentioned in the certificates of DG Personnel and Administration and in the letter of the Belgian ONP. The Commission further refers to hand-written comments on the complainant's file indicating registration with a foreign pension scheme from 1 October 1966 onwards. The Commission however admitted not having proof concerning deduction of contributions from the complainant's salary or reimbursement of two thirds of the complainant's contributions to the Greek scheme. 1.8 The Ombudsman points out that principles of good administration require that the institutions keep adequate records. In the case of pension entitlements, it is clearly necessary for such records to be kept reliably over long periods of time in order to ensure that individuals can enjoy the benefits which they have earned. According to the Conditions of employment of other servants, the Commission - not the auxiliary agent - is responsible for the employers social security contributions. In the present case, the Commission has acknowledged, in substance, that its records do not allow it to know how, or indeed whether, it discharged its responsibilities in this regard. 1.9 In these circumstances, the Ombudsman's provisional conclusion is that the Commission has not managed to demonstrate that it has fulfilled its obligations towards the complainant as regards his pension rights. This constitutes an instance of maladministration. The proposal for a friendly solution The friendly solution proposed by the Ombudsman consisted in the Commission taking the necessary measures to ensure that the complainant receives an appropriate pension entitlement in respect of the full period for which he worked for the Commission. The Commission's additional opinion Given the material impossibility for the Commission to prove that the complainant had, during the period of his contract as an auxiliary agent, opted for a modification of the social security scheme, the Commission accepts the Ombudsman's proposal for a friendly solution. The Commission contacted the Belgian authorities on 10 November 2004 in order to regularise the contributions to the Belgian social security scheme for the entire period of the auxiliary contract, namely from 13 July 1965 to 31 December 1968. A copy of the document which confirms the regularisation will be sent directly to the complainant once the Commission services receive it.

92

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

THE DECISION 1. The alleged failure of the Commission to pay pension contributions for the years 1967 and 1968 1.1 The complainant claims that the Commission should, for the entire period that he has worked as an auxiliary agent (i.e. also including the period from 1 January 1967 to 31 December 1968), recognise that it was obliged to insure him under the Belgian pension scheme. 1.2 The Commission observed that contributions were paid to the Belgian National Social Security Office (ONSS) for the period from 13 July 1965 to 30 September 1966, but that no contribution to the Belgian scheme was paid after that date. The Commission further pointed out that, on 23 November 1966, the complainant made a request for the transfer of part of his remuneration (BEF 7000), justifying his request on the basis of "various costs resulting from his quality of lawyer at the Athens' Bar". This would explain the hand-written note "assurance volontaire Grce" on the complainant's financial file, as well as on the declaration to the ONSS, 4th semester 1966, "assurance l'tranger partir du 1er octobre 1966". The Commission further pointed out that, as it no longer has the payment slips of the time available, it is impossible for it to prove that it stopped deducting a personal contribution from the complainant's salary. Nor does the Commission have proof of the reimbursement by its services of two thirds of the complainant's Greek coverage. 1.3 On 29 October 2004, the Ombudsman made a proposal for a friendly solution to the Commission, consisting in the Commission taking the necessary measures to ensure that the complainant receives an appropriate pension entitlement in respect of the full period for which he worked for the Commission. The Commission accepted the proposal for a friendly solution and took contacts with the Belgian authorities on 10 November 2004 in order to regularise the contributions to the Belgian social security scheme for the entire period of the complainant's auxiliary contract, namely from 13 July 1965 to 31 December 1968. The Commission also indicated that a copy of the document which confirms the regularisation would be sent directly to the complainant once the Commission services received it.

93

1.4 In a telephone conversation with the Ombudsman's office on 28 January 2005, the complainant observed that he was satisfied with the outcome and expressed his appreciation for the Ombudsman's intervention. The complainant mentioned that the Commission services had contacted him by telephone for the concrete follow-up and regularisation of the matter. The complainant therefore considered that the Commission had settled the case to his satisfaction. 2. Conclusion Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been agreed between the Commission and the complainant. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

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

94

Decision of the European Ombudsman on complaint 2191/2003/(AJ)TN against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 15 February 2005

Dear Mr X., On 17 November 2003, you made a complaint to the European Ombudsman against the European Commission concerning the termination of your contract as an individual expert in country Y. On 19 December 2003, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 25 March 2004. I forwarded it to you with an invitation to make observations, which you sent on 27 April 2004. On 29 July 2004, I wrote to the Commission in order to seek a friendly solution to your complaint. The Commission sent its response on 11 October 2004. I forwarded it to you with an invitation to make observations, which you sent on 28 November 2004. I am writing now to let you know the results of the inquiries that have been made. To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. The Ombudsman, accordingly, has no mandate to inquire into the activities of national authorities, such as the authorities of country Y, and the inquiry into this complaint has therefore been limited to examining whether there has been maladministration in the activities of the European Commission.

THE COMPLAINT In November 2003, a complaint was made to the Ombudsman against the Commission concerning the termination of the complainant's contract as an individual expert in country Y.
95

According to the complainant, the relevant facts are, in summary, as follows: In accordance with his contract with the Commission, he worked as an individual expert in country Y, providing technical assistance to one of the country's ministries (hereafter the Ministry). In response to a policy discussion paper that he submitted as part of his work, he received an insulting letter from the Ministry and in February 2003, approximately five months before the agreed final date of his contract, he was forced to resign due to further insults and threats. Since he had to leave his post due to extraordinary circumstances, he requested the Commission to pay him until the end of his contract. The Commission refused his request without any explanations. After his departure, the Commission requested an End of Mission Report, which he submitted in June 2003. At the same time he again requested full payment. In September 2003, the Commission informed him that it would not make the payment. He therefore asked to be paid for at least the End of Mission Report, which was also refused. The complainant alleges, in substance, that the Commission allowed him to be subject to insults and threats leading to his resignation. The complainant claims payment of his salary until the date foreseen in his original contract.

THE INQUIRY The Commission's opinion In its opinion, the Commission makes, in summary, the following comments: Background The contract in question was supposed to end on 6 July 2003, but was terminated on 14 February 2003 by the complainant's resignation. The complainant had produced a report on the situation in country Y, of which the Head of the Commission Delegation had received a copy on 22 January 2003. On 27 January 2003, the Head of Delegation informed the complainant that the report should not have been distributed and he disassociated the Commission from the content of the report. The report was, however, already published on the Ministry's Intranet and hard copies had been distributed to the National Authorising Officer. On 27 January 2003, the Development Secretary of country Y, who had read the report, wrote a letter to the complainant criticising his professional conduct. After having received the Development Secretary's letter, the complainant placed his resignation at the disposal of the Ministry on 28 January 2003. The Ministry accepted the resignation and the complainant left country Y on 14 February 2003. On 3 April 2003, the Commission informed the complainant about the contractual consequences of his resignation. On 24 June 2003, the complainant submitted his End of Mission Report and requested to be paid his salary until 6 July 2003. The complainant was informed that as he had resigned on 14 February 2003, he was not entitled to be paid a salary up to 6 July

96

2003. A written confirmation of this was sent to the complainant on 17 September 2003. The complaint The complainant decided to circulate, without the proper authorisation, a controversial report on the situation in country Y. By making this report public without the authorisation of the Delegation, the complainant not only exposed himself to critical comments but also breached the obligation of confidentiality foreseen in Article 12 of the General Conditions governing individual experts' contracts. The complainant should also have been aware of the wider legal framework within which he was carrying out his contract, namely the Lom IV Convention. Article 2 of the Lom IV Convention states that ACP-EC co-operation shall be exercised on the basis of certain fundamental principles, such as equality between partners and respect for their sovereignty, and the right of each State to determine its own political, social, cultural and economic policy options. By making public a politically sensitive report, the complainant went beyond his objectives and responsibilities as stated in his Terms of Reference. Moreover, given the content of Article 2 of the Lom IV Convention, the Commission had to disassociate itself from the complainant's report. Since the complainant did not respect his obligation of confidentiality and failed to seek the authorisation of the Delegation for the publication of the report, the Commission cannot be held responsible for the insults and threats made to him. The only advice that could be and was given to the complainant, if he considered that he was threatened, was to leave the country as soon as possible. Together with his End of Mission Report, the complainant requested to be paid until 6 July 2003, which was the foreseen end of his contract. However, the complainant is not entitled to such a payment. Article 40 of the Belgian law of 3 July 1978, governing the contract between the Commission and the complainant, is applicable to the situation. This article foresees the possibility for both parties to end a contract entered into for a fixed period of time without invoking a "motif grave", on the condition that an indemnity is paid. This indemnity equals the salary which should have been paid until the foreseen end of the contract. The Commission never asked for this indemnity. It thus considers that the complainant is only entitled to payment of salary for that segment of the contract period the complainant actually worked, i.e. until 14 February 2003. The complainant's observations In his observations, the complainant makes, in summary, the following remarks: The complainant did not produce a controversial or politically sensitive report but a discussion paper. This is written on the paper's cover page and is also explained in its

97

introduction. A discussion paper is an intermediate document, which can lead to the production of a formal report after discussion and approval. He did not "make public" the paper, but submitted it for discussion to people within the Ministry, the National Authorising Office and the Delegation, according to standard practice. On 22 January 2003, both the Head of the Commission Delegation in country Y and the Development Secretary of country Y received copies of the paper. The Head of Delegation discussed the matter with the Development Secretary, who promised to withdraw the insulting letter mentioned in his original complaint. However, instead of receiving the promised withdrawal, the complainant received a second copy of the insulting letter. He was thus facing not only an insulting letter from the Development Secretary, but also a letter from the Delegation of 27 January 2003, which did not address the insults but merely supported the Development Secretary's attempt to suppress the discussion paper. He had no other option than to resign. In offering his resignation, he sought to reverse the suppression of the paper and bypass the insulting letter. However, several people in the Ministry wanted the complainant to stay in his post. The Deputy Minister explicitly wanted the paper to be discussed, but an intimidation campaign made this impossible. Again the Commission did not take appropriate measures in relation to the threats. Instead, the Head of Delegation convinced the Minister to accept the complainant's resignation. As regards the content of the paper, the complainant was instructed, in October 2002, to focus on strategic policy. An official in the Commission Delegation instructed him, in clear terms, that his paper should tell some hard truths about the problems in country Y. The complainant described his approach in an e-mail to the Delegation in December 2002, clearly stating that his aim was to provoke and to incite discussion. He also shared and discussed his drafts with his supervisor. In January 2003, he considered his draft to be sufficiently advanced for others to join the discussion. He was led to believe that authorisation would follow the discussion and revision. This was how he had been told to act and the responsibility and objective that he had been given. The Commission did not have to disassociate itself from the paper, which clearly stated that it did not express the opinion of the Commission or of the Ministry. In the complainant's view, the Commission should have advised the Minister to refuse his resignation. The Commission should furthermore have disciplined the perpetrators of the insults and threats, and prompted a discussion of the paper. By not acting against the perpetrators, the Commission violated Article 5 of the General Conditions governing individual experts' contracts and it must thus accept responsibility for the resignation and pay his salary until 6 July 2003. As regards the Belgian law referred to by the Commission, there was indeed a "motif grave" for him to terminate his contract and this "motif grave" was caused by the Commission's failure to act against the perpetrators of the insults and threats.

98

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the opinion and the observations, the Ombudsman was not satisfied that the Commission had responded adequately to the allegation and claim made by the complainant. In accordance with Article 3(5) of the Statute(1), the Ombudsman therefore wrote to the Commission on 29 July 2004 to propose a friendly solution on the basis of the following analysis of the issues in dispute between the complainant and the Commission: A. The allegation that the Commission has allowed the complainant to be subject to insults and threats leading to his resignation A.1 The complaint concerns the termination of the complainant's contract with the Commission as an individual expert in country Y. According to the complainant, he submitted a policy discussion paper as part of his work as technical assistant for one of the ministries in country Y. In response to his paper, he received an insulting letter from the Ministry. Following further insults and threats, he was forced to resign in February 2003, approximately five months before the agreed final date of his contract. A.2 The Commission argues that the complainant decided to circulate, without prior authorisation, a controversial report on the situation in country Y. By making this report public, the complainant not only exposed himself to critical comments but also breached the obligation of confidentiality foreseen in Article 12 of the General Conditions governing individual experts' contracts and went beyond his objectives and responsibilities as stated in his Terms of Reference. The complainant should furthermore have been aware of the wider legal framework within which he was carrying out his contract, namely the Lom IV Convention and particularly its Article 2. In light of the above, the Commission considers that it cannot be held responsible for the threats and insults. The only advice that could be and was given to the complainant was to leave the country as soon as possible. A.3 The Ombudsman has carefully examined the General Conditions governing individual experts' contracts and notes that Article 5 reads as follows: "The Commission shall assist the Contractor, notably in regard to any proceedings brought against the perpetrators of threats, indecent conduct, insults, defamatory acts or utterances or assaults against person or property suffered by himself or members of his family by reason of his technical assistance position or duties." A.4 The Ombudsman notes that the Commission does not appear to question the fact that the complainant has been subject to threats and insults. Nor does the Commission appear to dispute that it did not try to assist the complainant in solving the matter and restoring his work situation. The Ombudsman understands the Commission to argue, in substance, that it was not obliged to assist the complainant because the latter had

99

breached his obligation of confidentiality and gone beyond his Terms of Reference and was therefore the author of his own misfortune. A.5 As regards the Commission's argument that the complainant breached his obligation of confidentiality, the Ombudsman notes that Article 12 of the General Conditions governing experts' contracts prohibits, among others, communication of documents and information to a third party without prior authorisation of the Commission or the local authority(2). In the Ombudsman's view, it is clear that the notion of "third party" cannot include the local authority itself, since the contrary conclusion would deprive the provision empowering the local authority to authorise communication to third parties of any useful effect. The Ombudsman also notes that the General Conditions governing individual experts' contracts (Chapter 0, Definitions), define the term "local authority" as meaning "the government or regional authority and/or any other body within which the contractor carries out his duties". In the present case, therefore the "local authority" is the Government of country Y, of which the Ministry and the National Authorising Office, to which the complainant reported(3), would appear to be part. According to the Commission, the complainant circulated and made public the paper concerned and thereby breached his obligation of confidentiality. However, on the basis of the information provided by the Commission, the Ombudsman is not convinced that the complainant circulated the paper to any "third party" in the meaning of Article 12, i.e. outside the Commission Delegation itself and the local authority. Accordingly, the Commission has not shown that the complainant breached the obligation of confidentiality contained in Article 12 of the General conditions governing individual experts' contracts. A.6 As regards the Commission's argument that the complainant went beyond his Terms of Reference, the Ombudsman takes note of the complainant's objectives and responsibilities thereunder. The Ombudsman notes that the Commission has not explained in what way it considers the complainant to have gone beyond these objectives and responsibilities. On the basis of the information provided regarding the matter, the Ombudsman is thus not satisfied that the Commission has succeeded in showing that the complainant went beyond his objectives and responsibilities by circulating the report. A.7 In view of the findings in paragraphs A.5 and A.6 above, it appears to the Ombudsman that the complainant acted within the limits of his duties when circulating the paper. As regards the Commission's argument that the complainant should have been aware of the wider legal framework within which he was carrying out his contract, namely the Lom IV Convention, the Ombudsman does not consider that the Commission has shown how its responsibilities under the Convention could relieve it of its obligation to assist the complainant under Article 5 of the General Conditions governing individual experts' contracts. The Ombudsman, therefore, does not find convincing the Commission's argument that it had no responsibility for the

100

threats and insults against the complainant. The Ombudsman thus makes the provisional conclusion that the Commissions failure to assist the complainant is an instance of maladministration. The Ombudsman will therefore propose a friendly solution regarding the matter. B. The claim for payment of salary until the end date foreseen in the contract B.1 In view of the Commission's alleged failure to act against the perpetrators of the insults and threats, the complainant considers that the Commission must accept responsibility for his early resignation. The complainant therefore claims payment of his salary until the date foreseen in his original contract, namely 6 July 2003. B.2 The Commission argues that Article 40 of the Belgian law of 3 July 1978, governing the contract between the Commission and the complainant, foresees the possibility for both parties to end a contract entered into for a fixed period of time without invoking a "motif grave", on the condition that an indemnity is paid. This indemnity equals the salary which should have been paid until the foreseen end of the contract. The Commission never asked for this indemnity. It thus considers that the complainant is only entitled to payment of salary for that segment of the contract period the complainant actually worked, i.e. until 14 February 2003. B.3 The Ombudsman points out that the main issue of this case is not whether the Commission is entitled to an indemnity, which it furthermore has not asked for, but whether the complainant should be compensated for lost salary. In view of the provisional finding of maladministration in paragraph A.7 above, the complainant appears to have been forced to leave his position due to the Commission's failure to assist him against threats and insults. The Ombudsman will therefore suggest that the Commission could consider responding positively to the complainant's claim to be paid his salary for the period 14 February 2003 - 6 July 2003, in accordance with the original contract. The proposal for a friendly solution On the basis of the provisional finding of maladministration in paragraph A.7 above, the European Ombudsman suggested that the European Commission could consider responding positively to the complainant's claim to be paid his salary for the period 14 February 2003 - 6 July 2003, in accordance with the original contract. The Commission's response In response to the Ombudsman's proposal for a friendly solution, the Commission argued as follows: The Commission agrees that a failure to assist the complainant would have been an instance of maladministration and also a breach of a primary obligation towards anyone with whom the Commission has or had a contractual relationship and who for

101

some reason found himself in a delicate and potentially dangerous situation in a foreign country. The Commission has therefore reviewed the case and all the events preceding the complainant's departure from country Y. The allegation that the Commission allowed the complainant to be subject to insults and threats leading to his resignation Given the circumstances, the complainant might have felt that he was forced to resign. However, this was certainly not due to any failure by the Commission to provide assistance, which it was obliged to provide under Article 5 of the General Conditions, even if no longer contractually linked to the complainant. The complainant distributed the policy paper on 23 January 2003. On 27 January 2003, the Development Secretary wrote the complainant a letter criticising his professional conduct. By letter of 28 January 2003, the complainant acknowledged receipt of the letter from the Development Secretary and put his resignation at the disposal of the Minister. The latter accepted the resignation on 12 February 2003. This delay was due to the fact that the Government of country Y wanted to pursue the matter before the courts in country Y and it took the Commission Delegation quite some time and effort to convince it otherwise. The Commission deeply regrets the situation that arose, which was certainly complicated for the complainant, but also uncomfortable for the Delegation. However, the Commission could not have done more than it actually did for the complainant. As a matter of fact, if the Commission had not acted on the complainant's behalf, the Government of country Y would have prevented the complainant from leaving the country and legal proceedings would have been introduced against him. As the chronology of events shows, the complainant did not resign because of lack of assistance from the Commission - which was provided to him - but he resigned because he felt offended by the letter from the Development Secretary. In addition, the Commission could not support a policy paper that it had not approved and that did not reflect the Commission's opinion on the subject. The distribution of the policy paper to unauthorised third parties Without the prior authorisation of the Delegation or the competent local authority, the complainant distributed the policy paper to a wider circle of readers than authorised by his contract. Not only did he send copies to the authorised entities and persons mentioned in his contract, but also to different people within the Ministry, to his sister and to his daughters. The definition of "local authority" reads as follows: "Local authority: where the brief(4) provides for the contractor to be assigned to a local authority, that authority is the government or regional authority and/or any other body within which the

102

contractor carries out his duties in the country or countries of employment and to which he is directly responsible for the execution of his assignment in the country or countries of employment." Read together with Article 1 of the complainant's contract, this definition means that the local authority for his contract was, in the broad sense, the Ministry. However, point 6 of the Terms of Reference to the contract clearly indicates the line of communication to be followed with regard to reporting: Reports should be submitted to the Minister and to the European Commission Delegation through the Development Secretary and the Director of National Authorising Office. The submission to these entities was necessary before any wider distribution of the document was allowed. The definition "local authority" cannot, therefore, be interpreted as including the whole Ministry, let alone the whole Government of country Y. Furthermore, it is clear from the Development Secretary's letter of 27 January 2003 that the complainant was explicitly asked, during a meeting on 22 January 2003, to submit his draft for vetting and approval by the Ministry before releasing it even within the Ministry. In view of the above, the Commission remains of the opinion that the complainant distributed the policy paper to a wider group of people than allowed and breached Article 12 of the General Conditions. Objectives and responsibilities of the complainant Although presented as a discussion paper, the document produced by the complainant contains distinctly critical comments about the population of country Y and their Government. No doubt the style used by the complainant, which he himself describes as "provocative", is commonly accepted in certain cultures and under different circumstances. However, in country Y the Government did not appreciate this style. It considered the text to be an attack on the integrity of the population of the country. None of the complainant's objectives could be considered as giving him an implied right to make fundamental criticisms of certain policies of the Ministry to which he was attached, not even in the form of a discussion paper. Certain national sensibilities had to be respected. In his End of Mission report, the complainant admits that personal feelings of anger had influenced the content of the document by stating that "[i]f some anger comes across through the paper, there were very good reasons for it". The complainant's objectives and responsibilities as defined in the Terms of Reference did not allow him to produce a document which in such a provocative manner criticised the adopted policies and practices. The question of making remarks of such a nature about certain national policies is all the more significant in light of the fact that the complainant distributed the document to a wider audience than intended. For the reasons stated above, the Commission considers that the complainant went beyond his objectives and responsibilities and that he, in essence, behaved unprofessionally.

103

To conclude, the Commission argues that the complainant decided to terminate his contract due to differences with the Government in country Y, not with the Commission. The Commission took steps to protect the interests of the complainant, but by resigning voluntarily the complainant put an end to all his contractual rights and obligations, including his right to be paid for the remainder of the contract he terminated. The Commission considers that the Ombudsman should have the opportunity to read and evaluate the policy paper. Given that it is confidential, the Commission cannot send a copy of it to the Ombudsman, but it invites the Ombudsman to come to its premises to inspect the document before making a final decision(5). The complainant's observations In his observations on the Commission's reply, the complainant makes, in summary, the following remarks: According to the complainant, the policy paper was circulated according to standard practice. His sister and his daughters cannot be considered as third parties, but should be seen as part of the first party, i.e. himself. Furthermore, the fact that his sister and daughters received copies of the policy paper is irrelevant to the events that resulted in his resignation. The complainant argues that Article 6 of the Terms of Reference applies to administrative reports and defines the way in which such reports should be submitted. Article 6 does not, however, automatically apply to a discussion paper, such as the policy paper in question. It is true that the complainant was attached directly to the Development Secretary and that, in general, his reports should go to him and through the National Authorising Office to the Delegation. However, this practice was never followed. It was standard practice to concurrently submit documents to the Ministry, the National Authorising Office and the Delegation and to submit several copies for the immediate assistants. The reasons for this practice were that the Ministry did not have the logistics to act as an effective messenger or even to produce copies and that the Delegation did not want documents to be submitted through the Development Secretary and the National Authorising Office. This is confirmed in the Head of Delegation's note of the 27 January 2003, in which he confirms that he addressed a Delegation official about the paper, not the Development Secretary or the National Authorising Office. The Head of Delegation was well aware that the complainant had submitted drafts to the Delegation official and that it was not done through the Development Secretary and the National Authorising Office. The Commission is contradicting itself by stating that the complainant should have obtained its approval before submitting the paper to the Development Secretary and the National Authorising Office. The complainant further argues that he acted well within his objectives and responsibilities. Furthermore, the Delegation official provided clear guidance that the

104

paper should tell some hard truths. The complainant showed the Delegation his drafts and made clear in the paper that it did not express the views of the Commission or the Ministry. The Commission states that the complainant "resigned as a reaction to the letter of the Development Secretary, a letter he considered to be insulting". The complainant argues that he resigned as a reaction to the Development Secretary's letter and to the Head of Delegation's letter. Through the Head of Delegation's letter of 27 January 2003, the Commission failed to act against the Development Secretary's vicious letter and it unnecessarily disassociated itself from a paper which stated that it did not express the Commission's views. In the letter, the Commission also supported the attempt to suppress an internal discussion of the paper. The Commission has not, to this day, taken a position on the lies and insults contained in the Development Secretary's letter. The Commission could thus have done much more than it did. It could have supported a discussion of the paper and condemned the insults and threats. It could at least have remained silent and not disassociated itself from, or supported the suppression of, the paper. In reply to the Commission's argument that it could not support the policy paper because it had never approved it, the complainant argues that the Commission should have supported the principle that a discussion paper should be discussed, not censored, and that its author should not be insulted and threatened. The complainant thus resigned because of the unopposed insults and threats and because the Commission collaborated with the perpetrator in suppressing the discussion paper. Despite the complainant's resignation letter, the Minister offered him a new assignment on which he started working. This indicates that the Minister did not plan to accept his resignation. However, the Head of Delegation focused on getting the resignation accepted. The complainant waited patiently, working on the new assignment. When he was physically threatened at home, he contacted a member of the European Parliament and his resignation was accepted. The Commission argues that if it had not acted, "the [Government of country Y] would have prevented [the complainant] from leaving the country and the Development Secretary's threat of legal proceedings would have been carried out". The complainant questions whether it was really the Government of country Y that threatened to bring legal proceedings. He argues that only a narrow circle of people close to the Development Secretary was powerful enough to prevent him from leaving the country and to carry out the threats against him. However, if the Head of Delegation was right and correctly focused on getting the complainant out of the country, this amounts to admitting that the termination of his contract was forced.

105

THE DECISION 1. The allegation that the Commission allowed the complainant to be subject to insults and threats leading to his resignation 1.1 The complaint against the Commission concerns the termination of the complainant's contract as an individual expert in country Y. According to the complainant, he submitted a policy discussion paper as part of his work as technical assistant for one of country Y's ministries. In response to his paper, he received an insulting letter from the Ministry. Following further insults and threats, he was forced to resign in February 2003, approximately five months before the agreed final date of his contract. The complainant alleges, in substance, that the Commission allowed him to be subject to insults and threats leading to his resignation. 1.2 In its first opinion, the Commission argued that the complainant decided to circulate, without prior authorisation, a controversial report on the situation in country Y. By making this report public, the complainant not only exposed himself to critical comments but also breached the obligation of confidentiality foreseen in Article 12 of the General Conditions governing individual experts' contracts and went beyond his objectives and responsibilities as stated in his Terms of Reference. The complainant should furthermore have been aware of the wider legal framework within which he was carrying out his contract, namely the Lom IV Convention and particularly its Article 2. In light of the above, the Commission considered that it could not be held responsible for the threats and insults. The only advice that could be and was given to the complainant was to leave the country as soon as possible. 1.3 In the Ombudsmans view, the Commissions first opinion did not appear to dispute that the Commission failed to assist the complainant in solving the matter and restoring his work situation. The Ombudsman understood the Commission to argue, in substance, that it was not obliged to assist the complainant because the latter had breached his obligation of confidentiality and gone beyond his Terms of Reference and was therefore the author of his own misfortune. After having considered all the information provided by the complainant and the Commission, the Ombudsman made the provisional conclusion that the Commission had failed to assist the complainant in accordance with Article 5 of the General Conditions governing individual experts' contracts(6). 1.4 In its response to the Ombudsman's proposal for a friendly solution, the Commission recognises that it had an obligation to provide assistance to the complainant under Article 5 of the General Conditions governing individual experts' contracts. The Commission also recognises that, under the circumstances following the circulation of the policy paper, the complainant might have felt that he was forced to resign. The Commission argues, however, that this was not due to its failure to provide assistance and that, in fact, it did all it could for the complainant by helping him leave the country. According to the Commission, the Government of country Y wanted to pursue the matter before the courts in country Y and it took the Commission

106

Delegation quite some time and effort to convince it otherwise. Also according to the Commission, if it had not acted on the complainant's behalf, the Government of country Y would have prevented him from leaving the country and legal proceedings would have been introduced against him. The Commission further argues that it could not support a policy paper that it had not approved and that did not reflect the Commission's opinion on the subject. It also argues that, without the prior authorisation of the Delegation or the competent local authority, the complainant distributed the policy paper to a wider circle of readers than authorised by his contract and he thereby breached Article 12 of the General Conditions. The Commission is also of the view that the complainant's objectives and responsibilities, as defined in the Terms of Reference did not allow him to produce a document which in such a provocative manner criticised the adopted policies and practices. 1.5 In reply to the Commission's response to the Ombudsman's proposal for a friendly solution, the complainant contends that the policy paper was circulated in accordance with standard practice, meaning that it was concurrently submitted to the Ministry, the National Authorising Office and the Delegation, with several copies for the immediate assistants. He also contends that the Commission should have assisted him more than it did. He resigned as a reaction to the Development Secretary's letter, but also as a reaction to the Head of Delegation's letter of 27 January 2003. The Commission should not have disassociated itself from the policy paper, which made clear that it did not express the Commission's views. He felt that he was forced to resign because the Commission failed to condemn the insults and threats and because it failed to support a discussion of the policy paper. Furthermore, and despite indications that the Minister did not plan to accept his resignation, the Head of Delegation focused on getting the resignation accepted. The complainant questions whether it was really the Government of country Y, and not only a group of people close to the Development Secretary, that threatened to bring legal proceedings. The complainant argues that if the Commission is right in its assertion that, without its intervention, the Government of country Y would have prevented him from leaving the country and introduced legal proceedings against him, this only means that the Commission admits that the termination of his contract was forced. 1.6 The Ombudsman recalls that in his proposal for a friendly solution, he made a provisional finding of maladministration based on the Commission's apparent acceptance that it had not assisted the complainant in accordance with Article 5 of the General Conditions governing individual experts' contracts. Further to the Ombudsman's proposal for a friendly solution, the Commission brought forward the information that the Commission Delegation had expended quite some time and effort to convince the Government of country Y not to pursue the matter before the courts in country Y and that, without its intervention, the Government of country Y would have prevented the complainant from leaving the country and legal proceedings would have been introduced against him. The Ombudsman notes that the complainant questions whether it was really the Government of country Y, and not only a group of people

107

close to the Development Secretary, that would have acted against him if the Commission had not intervened. The Ombudsman also notes that the complainant explains that the Minister offered him a new assignment, indicating that the Minister did not plan to accept his resignation. However, the Ombudsman does not understand these remarks to be directed against the Commission's handling of the matter. The Ombudsman notes, furthermore, that the complainant does not appear to contest the Commissions argument that without the Commission's intervention, he would have been prevented from leaving the country and legal proceedings would have been introduced against him. 1.7 The Ombudsman notes that Article 5 of the General Conditions stipulates that "[t]he Commission shall assist the Contractor, notably in regard to any proceedings brought against the perpetrators of threats, indecent conduct, insults, defamatory acts or utterances or assaults against person or property suffered by himself or members of his family by reason of his technical assistance position or duties". The question therefore remains whether the Commission, in the situation that arose, was required to do more than helping the complainant to leave the country and avoid legal proceedings. 1.8 The Ombudsman first recalls that the complainant offered his resignation to the Ministry. The complainant argues that he was forced to resign because the Commission failed to condemn the insults and threats that followed the distribution of the policy paper and because the Commission failed to support a discussion of the paper and instead, by letter of 27 January 2003, disassociated itself from its content. The complainant also appears to argue that the Commission should have acted to get the Minister to refuse his resignation. The Ombudsman notes that the complainant received the Development Secretary's allegedly insulting letter on 27 January 2003 and that he handed in his resignation to the Ministry the day after, on 28 January 2003. The complainant has not put forward any evidence that he requested the Commission to act so as to ensure that the Minister did not accept his resignation, nor to show that the Commission should itself have taken the initiative to do so, in circumstances where, according to the Commission's account (which the complainant has not contested in this respect), the Commission's activity was focused on helping the complainant to leave the country without legal proceedings being taken against him. The Ombudsman has also carefully examined the Head of Delegation's letter to the complainant of 27 January 2003, in which he disassociated the Delegation from the content of the complainant's policy paper. Although the complainant may have been disappointed with the Commission's reaction, the Ombudsman is not aware of any rule or principle that would have required the Commission either to support the policy paper or to refrain from putting on record that it dissociated itself from the paper. 1.9 On the basis of the above, the Ombudsman considers that, in the circumstances created by the fact that the complainant himself decided to resign, the Commission appears to have taken appropriate action to assist the complainant. The Ombudsman therefore finds no maladministration by the Commission.

108

1.10 The Ombudsman considers it useful to point out that the finding in point 1.9 above does not imply that the Ombudsman accepts the Commission's criticisms of the complainant as regards responsibility for the situation that arose in country Y as a reaction to the policy paper. Nor, therefore, does the finding have any general implications as regards the extent of the Commission's obligations under Article 5 of the General Conditions. 2. The claim for payment of salary until the end date foreseen in the contract 2.1 In view of the Commission's alleged failure to assist him, the complainant considers that the Commission must accept responsibility for his early resignation. The complainant therefore claims payment of his salary until the date foreseen in his original contract, namely 6 July 2003. 2.2 In view of the finding in 1.9 above, the Ombudsman finds no ground to pursue the complainant's claim. 3. The Commission's approach to the Ombudsman's inquiry 3.1 The Ombudsman points out that it would have been conducive to better relations between the Commission and the complainant if the Commission's first opinion on the complaint had explained what the Commission had, in fact done to help the complainant in the difficult situation in which he found himself, rather than giving the impression that the Commission was mainly concerned to show that he was the author of his own misfortune. The Ombudsman will make a further remark in this regard. 3.2 Moreover, it was only in its response to the proposal for a friendly solution that the Commission supplied to the Ombudsman key factual information and arguments concerning its activity between 28 January and 12 February 2003. This information would have been helpful for the Ombudsman at an earlier stage of the inquiry. The Ombudsman recalls that he has already had occasion to make a further remark concerning the importance of the Commission providing complete information in its first opinion on a case(7). 4. Conclusion On 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.

109

FURTHER REMARK It would have been conducive to better relations between the Commission and the complainant if the Commission's first opinion on the complaint had explained what the Commission had, in fact done to help the complainant in the difficult situation in which he found himself, rather than giving the impression that the Commission was mainly concerned to show that he was the author of his own misfortune. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Which reads: "As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint". "Save with the express prior authorisation of the Commission or the local authority, the Contractor shall not communicate to a third party any information, correspondence or documents which he is required to draw up or which become known to him in the course of his assignment." According to Article 6 in the Terms of Reference, the complainant should prepare management reports to be submitted to the Minister and the European Commission Delegation through the Development Secretary and the Director of the National Authorising Office.
(4) (3) (2) (1)

Brief: The document setting out the terms, conditions and detailed implementing rules. The complainant sent the Ombudsman a copy of the policy paper together with his observations of 28 November 2004. The Ombudsman recalls that the complainant has requested that the complaint should be dealt with confidentially and that, according to the Ombudsman's implementing provisions (Articles 10 and 14), no public access will therefore be given to the complaint file.

(5)

For the Ombudsman's detailed reasoning regarding the matter, see point A under "The Ombudsman's efforts to achieve a friendly solution". The Ombudsman's decision in case 1376/2002/OV, available at the Ombudsman's website: http://www.euro-ombudsman.eu.int.
(7)

(6)

110

Decision of the European Ombudsman on complaint 2229/2003/MHZ against the European Commission

Strasbourg, 26 January 2005

Dear Mr A., On 21 November 2003, you made a complaint, on behalf of the association OrbigoTuerto, to the European Ombudsman against the European Commission. Your complaint to the Ombudsman concerns a refusal by the Commission to give access to documents, failure to reply to your confirmatory application and failure to provide information as regards your complaint lodged with the Commission in respect of an infringement of Community law by Spain. On 19 December 2003, I forwarded your complaint to the President of the European Commission. On 30 March 2004, the Commission sent its opinion translated into Spanish, which I forwarded to you with an invitation to make observations. On 3 May 2004, I received your observations. I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT According to the complainant, the relevant facts were as follows. The complainant submitted to the Commission a complaint concerning the infringement by the Spanish authorities of Community law as regards their authorisation for the construction of a centre for processing waste products in San Roman de la Vega. His complaint, as well as another complaint concerning the same matter, submitted to the Commission separately by the Mayor of a local City Council(1), were registered by the Commission under the same number (99/5252). On 31 October 2002, the Commission informed the complainant that it had opened infringement proceedings against Spain for the infringement of Community Law (directives 75/442/CEE, 91/156/CEE, 91/689/CEE, 99/31/CEE, 85/337/CEE, 97/11/CE) and that it would keep the complainant informed about the progress of the investigation and an eventual answer from the Spanish authorities. On 26 November 2002, the complainant asked the Commission to provide him with the text of the Commission's decision regarding the opening of infringement
111

proceedings against Spain and also the text sent by the Commission to the Spanish authorities. On 11 December 2002, the complainant received a letter from the Commission dated 3 December 2002, in which the Commission refused to give him access to the documents on the ground that the information requested was confidential. As regards the Commission's correspondence with the Spanish authorities, it also stressed that this was part of an investigation and that disclosure could be prejudicial to the entire process (on the basis of the case-law of the Court of Justice and Regulation 1049/2001 Art. 4.2) unless a higher public interest justified its disclosure. In the same letter, the Commission included information about the possibility to make a confirmatory application to the Secretariat General of the Commission and stated that the Secretariat General would answer the appeal within 15 days. On 23 December 2002, the complainant submitted his confirmatory application to the Secretariat General. He stated that knowledge of the documents concerned could be helpful in the proceedings before the Spanish courts concerning the subject of his complaint against Spain. He did not receive an answer. On 21 November 2003, the complainant lodged a complaint with the European Ombudsman against the Commission. He alleged that, despite announcing that it would do so, the Commission did not inform him about the course of its investigation of his complaint against Spain, nor about an eventual answer from the Spanish authorities. According to the complainant, by unnecessarily delaying its decisions, the Commission is ignoring the preventive aim which inspires the directives and the Commissions mission of ensuring compliance with them. The complainant also alleged that the Commission refused to provide him with the text of the Commission's decision to open infringement proceedings against Spain and the text of the letter sent by the Commission to the Spanish authorities. Finally, he alleged that the Secretariat General of the Commission did not answer his confirmatory application for access to the aforementioned documents. He claimed that he should be informed about the conduct of the investigation by the Commission and about an answer from the Spanish authorities, have access to the relevant documents and receive an answer from the Secretariat General.

THE INQUIRY The opinion of the Commission The opinion of the Commission contains, in summary, the following comments:

112

Background to the case and provision of information to the complainant In September 1998, the complainant filed a complaint with the Commission concerning the construction of a centre for processing waste products in San Roman de la Vega, which was registered as complaint 1998/4791. In the course of the investigation of the complaint, the Commission asked the Spanish authorities for their comments as regards the application of Community law in the field of the environment in this case. After analysing the Spanish authorities' comments and those of the complainant, the Commission found that there was no infringement of Community law. On 30 March 1999, the Commission informed the complainant about the results of its inquiry and that DG Environment intended to propose to the Commission that no further action be taken on his complaint. On 28 May 1999, the complainant provided the Commission with new information. On 19 July 1999, the Commission informed the complainant that this information would be examined. However, given that the contested construction was only at the planning stage, and that no Community law provision could be infringed at this stage, the Commission decided not to open infringement proceedings. At the end of 1999, the Commission received another complaint with the same grievance submitted by the Mayor of the City of San Roman de la Vega. His complaint was registered under number 99/5252. Because the grievances were the same and several communications of the complainant appeared to be identical to those of the Mayor of San Roman de la Vega, the Commission decided to treat the complainants complaint jointly with the complaint of the Mayor of San Roman de la Vega and informed the complainant accordingly on 20 December 1999. The Commission also assured the complainant that it would keep him informed of any new elements concerning his case. On 12 April 2000, the Spanish authorities provided the Commission with the information requested by it on 4 January 2000. Furthermore, the Commission services examined the information provided by the Spanish authorities, the complainant and the Mayor of the City of San Roman de la Vega. As a result of its study, the Commission asked the Spanish authorities to provide a copy of the environmental impact assessment of the project concerned and of the authorisation granted for its construction. The Spanish authorities subsequently sent several assessments (on 1 February, 28 February and 9 March 2001). In the meantime, the complainant continued to send other documents to the Commission. On 7 September and 25 September 2001, the Commission informed the complainant and the Mayor of the City of San Roman de la Vega of the course of the investigation. On 15 and 20 November 2001, the complainant and the Mayor sent additional information, which was acknowledged on 28 November and 11 December 2001 respectively.

113

On 28 December 2001, the complainant provided the Commission with new information and the Commission acknowledged its receipt on 18 January 2002. On 31 October 2002, the Commission informed the complainant that it had opened infringement proceedings against Spain following his complaint to the Commission and that it had issued a letter of formal notice to the Spanish authorities. On 26 November 2002, the Commission received the complainant's request for a copy of the letter of formal notice. On 3 December 2002, the Commission refused access on the basis of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(2). In the same letter, the Commission also informed the complainant that he could make a confirmatory application to the Secretariat General. The Commission attached to its opinion a list of correspondence with the complainant between 20 December 1999 and 14 January 2003 and included a copy of its letter to the complainant dated 3 December 2002 and a copy of a letter from the Commission dated 14 January 2003(3). In the letter of 14 January 2003, the Commission referred to a bulky file provided by the Spanish authorities together with their answer to the letter of formal notice and stated that all these documents would be analysed by the Commission services. The Commission also stated in its opinion that since the letter of 14 January 2003, no new steps had been undertaken. However, the Commission announced that it would take its final decision shortly and inform the complainant accordingly. The complainants confirmatory application for access to documents The Commission apologised for the lack of answer to the complainant's confirmatory application. The Commission explained that, due to an administrative error, the complainant's letter of 23 December 2002 has not been identified as a confirmatory application for access to a document and had been allocated to DG Environment. The Commission also pointed out that DG Environment unfortunately could not trace the letter, which consequently was not followed-up. In this context, the Commission put forward that the recent introduction of electronic control of its correspondence makes it possible to avoid such errors in future. The Commission also stated that in the light of the present status of the infringement proceedings on the complainant's complaint and on the basis of Regulation 1049/2001, it re-examined the complainant's application for access to the letter of formal notice sent by the Commission to the Spanish authorities on 23 October 2002. In this context, the Commission pointed out that the proceedings are still under way and that it had not yet decided whether it would close the case or send a reasoned decision to the Spanish authorities.

114

The Commission took the view, furthermore, that the disclosure of the letter of formal notice may, by its nature, jeopardise the dialogue between the Spanish authorities and the Commission as well as the Commission's efforts to acquire the voluntary compliance of Spain with the directives concerned and thereby allow it to find a solution before submitting the case to the Court. According to the Commission, the disclosure of the letter of formal notice seems even more detrimental given that the complainant clearly revealed his intention to use the document in proceedings before Spanish courts. The Commission also pointed out that the infringement proceedings take place exclusively between the Commission and the Member State concerned and that the complainant is not a party in these proceedings. However, the Commission underlined that complainants play a vital role in detecting infringements of Community law and for that reason the Commission codified its relations with the complainants in respect of infringements of Community law (Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law, COM/2002/0141 final)(4). Therefore, the Commission considers that the exception resulting from Article 4(2), third indent of Regulation 1049/2001 is applicable in this case. According to the Commission, the refusal of access to the letter of formal notice at this stage of the infringement proceedings complies with the case-law (Judgement of the Court of First Instance in Cases T-105/95 and T-191/99). Finally, the Commission put forward that the partial disclosure of the letter of formal notice, according to Article 4(6) of Regulation 1049/2001, had been considered by the Commission but turned out to be impossible given that the document in question contained a detailed factual and legal analysis of the points of disagreement between the Commission and the Spanish authorities. All information, which could be made public, has, according to the Commission, already been provided to the complainant. Furthermore, the Commission took the view that the nature of the public interest in disclosure of the document concerned is not sufficient to counterbalance the prejudice to the course of the infringement proceedings (and, in particular, for a possible friendly solution) which such disclosure could cause. The Commission does not exclude, however, that the letter of formal notice may be made public at a later stage of the procedure. The length of the procedure In its opinion, the Commission replied to the complainant's statement that "(...) by unnecessarily delaying its decisions, the Commission and its Secretariat General ignore the preventive aim which inspires the directives and the Commissions mission of ensuring compliance with them (...)" as a separate allegation.

115

The Commission explained that the deadline of 12 months (from the date of the registration of the complaint until the decision to issue a letter of formal notice or to close the case) cannot always be respected and depends on the specificity of the case and also on the workload of the Commission as regards environmental cases (investigated ex officio or following a complaint) relating to some Member States. The complainant's observations The complainant's observations on the Commission's opinion can be summarised as follows. The complainant points out that the copy of the letter of 14 January 2003 attached to the Commission's opinion referred to by the Commission in its list of correspondence with the complainant as addressed to him, is in fact addressed to another person, the Mayor of the City of Villarejo de Orbigo. According to the complainant, this only confirms his allegation that the Commission failed to inform him of the course of the infringement proceedings. The complainant does not agree with the Commission's justification for its refusal to disclose the letter of formal notice addressed to the Spanish authorities. He considers that the disclosure would in fact facilitate voluntary compliance by the Spanish authorities with Community law and that its refusal reduces the role of the complainant in the infringement proceedings as set out in the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law, COM/2002/0141 final(5). The complainant also takes the view that the Commission's apologies as regards the lack of answer to his confirmatory application do not replace such an answer, which should be given by the Secretariat General of the Commission. The complainant also considers that the Commission's delay in deciding to issue a letter of formal notice or to close the case was unnecessary. In this context, the complainant states that, in August 2003, the Commission services dealing with his case informed him via e-mail that the case documents had already been analysed and that the draft decision was in an advanced state of preparation.

THE DECISION 1. Handling of an infringement complaint 1.1 The complainant submitted a complaint to the Commission concerning an alleged infringement by the Spanish authorities of Community law directives in the field of the environment.

116

In his complaint to the Ombudsman, the complainant alleges that, despite announcing that it would do so, the Commission did not inform him about the course of its investigation nor about an eventual answer from the Spanish authorities. According to the complainant, by unnecessarily delaying its decisions, the Commission is ignoring the preventive aim which inspires the directives and the Commissions mission of ensuring compliance with them. The complainant claims that he should be informed about the conduct of the investigation by the Commission and about an answer from the Spanish authorities. 1.2 The Commission explains that it handled the complainant's case jointly with the complaint made by the Mayor of the City of San Roman de la Vega. The Commission gave an account of the chronology of the case and attached a list of the correspondence, as well as copies of letters that it sent on 3 December 2002 and 14 January 2003. As regards the length of the procedure, the Commission states that the deadline of 12 months (from the date of the registration of the complaint until the decision to issue a formal notice or to close the case) cannot always be respected and depends on the specificity of the case and also on the workload of the Commission as regards environmental cases (investigated ex officio or in virtue of a complaint) relating to some Member States. 1.3 The Ombudsman has carefully examined the list of correspondence provided by the Commission, which was not contested by the complainant. The Ombudsman notes that within the three-year period of the Commissions investigation of the complaint (i.e. from 20 December 1999, the date on which the Commission informed the complainant of the registration of his complaint until 31 October 2002, when the Commission informed the complainant of the issuance of the letter of formal notice), the complainant sent six letters to the Commission and the Commission sent ten letters to the complainant. As the complainant correctly points out, the Commission's posterior subsequent letter of 14 January 2003 was not in fact addressed to the complainant(6). Nonetheless, the Ombudsman finds that (with the exception of the complainant's confirmatory application for access, which is dealt with in Part 3 of the decision below) every letter sent by the complainant (the issue of the complainant's confirmatory application will be dealt with below paragraph 3) appears to have received an answer from the Commission. The Ombudsman also finds that the Commission appears to have informed the complainant of every new step taken in response to his complaint (request for information from the Spanish authorities; status of investigation after the answer from the Spanish authorities; request for additional information from the Spanish authorities; answer of the Spanish authorities; Commission's position as regards additional information provided by the complainant; decision to issue the letter of formal notice). The Commission also appears to have reacted to every additional piece

117

of information provided by the complainant and, on one occasion, appears to have changed the course of its investigation on the basis of information provided by him(7). Finally, the Ombudsman notes, as the complainant himself acknowledged in his observations, that the Commission informed the complainant on August 2003 via email that the documents sent by the Spanish authorities had already been analysed and that the draft decision was in an advanced state of preparation. 1.4 As regards the length of the procedure, the Ombudsman notes that the Commissions investigation appears to have taken just under 3 years (from 20 December 1999, the date on which the Commission informed the complainant of the registration of his complaint until 31 October 2002, when the Commission informed the complainant of the issuance of the letter of formal notice). 1.5 The Ombudsman recalls that in its response to the Ombudsmans own-initiative inquiry into the possibilities for improving the quality of the Commission's procedures for dealing with complaints from citizens about infringements, the Commission stated that under its internal rules of procedure, a decision to close a file without taking any action or a decision to initiate official infringement proceedings must be taken on every complaint within a maximum period of one year from the date on which it was registered, except in special cases, the reasons for which must be stated(8). The Ombudsman notes that the one year time limit is re-affirmed in the Commissions Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (COM/2002/0141 final)(9). 1.6 In the present case, the Commission has referred only to general factors that may cause delays in dealing with environmental cases and did not provide specific reasons to justify the period of three years that the Commission took to investigate the complainants infringement complaint against Spain. The Ombudsman therefore considers that the Commission has failed to provide an adequate explanation for the length of the investigation. This is an instance of maladministration and a critical remark will be made below. 2. Refusal to give access to documents 2.1 The complainant alleges that the Commission refused to provide him with the text of the Commission's decision to open infringement proceedings against Spain and the text of its letter of formal notice to the Spanish authorities. He claims that he should have access to the relevant documents. 2.2 The Commission takes the view that its decision was justified by Article 4(2) third indent of Regulation 1049/2001(10). According to this provision, access to a document should be refused where its disclosure would undermine the protection of "the purpose of inspections, investigations and audits", unless there is an overriding public interest

118

in disclosure. Referring to the case law of the Community courts, the Commission argues, that in the case of investigations concerning a possible infringement of Community law, the disclosure of documents related to such investigation could prove detrimental to the handling of such infringements and jeopardise the dialogue between the Member State and the Commission, and in particular a possible friendly solution. According to the Commission, the disclosure of the letter of formal notice seems even more detrimental given that the complainant clearly revealed his intention to use the documents in proceedings before Spanish courts. The Commission concluded that there was no overriding public interest in disclosing the documents concerned. The Commission also put forward that partial disclosure of the letter of formal notice, according to Article 4(6) of Regulation 1049/2001, had been considered by the Commission but, given that the document in question contained a factual and legal detailed analysis of the points of disagreement between the Commission and the Spanish authorities, its disclosure would still be prejudicial to the negotiations between the Commission and the Spanish authorities. The Commission also states that, in the light of the present status of the infringement proceedings following the complainant's complaint and on the basis of Regulation 1049/2001, it re-examined the complainant's application for access to the letter of formal notice delivered by the Commission to the Spanish authorities on 23 October 2002. However, given that its decision whether to close the case or, on the contrary, to send a reasoned decision to the Spanish authorities had not been taken yet, disclosure was not possible. 2.3 The Ombudsman notes that Article 4 (2) of Regulation 1049/2001 provides that the institutions shall refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure. In a judgement concerning Commission Decision 94/90 (which Regulation 1049/2001 replaced) the Court of First Instance considered that the preservation of the objective of an amicable resolution of the dispute between the Commission and the Member State could justify refusal of access to letters of formal notice drawn up in connection with Article 226 proceedings(11). 2.4 In the present case, the Ombudsman does not accept the Commissions argument that the disclosure of the letter of formal notice seems even more detrimental to the public interest given that the complainant intends to use it in proceedings before Spanish courts. The Ombudsman wishes to point out that proceedings in national courts are an important means by which individuals can protect their rights under Community law. In this context, the Ombudsman notes that in Council Regulation 2679/98(12) of 7 December 1998 on the functioning of the internal market in relation to free movement of goods among the Member States, the Community legislator has specifically provided for any party to obtain on request a copy of the Commissions notification to a Member State of an obstacle to the free movement of goods and that one of the effects of this provision is to facilitate action by individuals in national courts. Although this specific provision applies only in limited circumstances, the

119

Ombudsman is not persuaded that, in other circumstances, the Commission is entitled to rely on arguments that imply a negative view of judicial proceedings in national courts. 2.5 However, the Ombudsman takes the view that, on the basis of the abovementioned case law of the Court of First Instance, the Commission could reasonably take the view that a decision to refuse public access to the letter of formal notice was justified. The Ombudsman therefore finds no maladministration as regards this aspect of the complaint. The Ombudsman recalls, however, that the Court of Justice is the highest authority on Community law. 3. Lack of answer to the confirmatory application 3.1 The complainant alleges that the Secretariat General of the Commission did not answer his confirmatory application for access to the text of the Commissions decision to open infringement proceedings against Spain and the text of the letter sent by the Commission to the Spanish authorities. He claims that he should receive an answer. 3.2 In its opinion, the Commission apologises for the lack of answer to the complainant's confirmatory application and explains that it was due to an administrative error. The Commission points out that the recent introduction of electronic control of its correspondence makes it possible to avoid such errors in future. 3.3 In his observations, the complainant maintains his claim and argues that the Commission's apologies in its opinion as regards the lack of answer to his confirmatory application do not replace such an answer, which should be given by the Secretariat General of the Commission. The Ombudsman considers that the complainant is correct in his view that he is entitled to an answer to his confirmatory application. However, the Ombudsman observes that the Commission has acknowledged its error in failing to reply, apologised for it, and given a substantive reply in its opinion on the present case. 3.5 Furthermore, the Ombudsman notes that according to Art. 8(3) of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(13), the absence of a reply to a confirmatory application is considered as a negative reply, which entitles the applicant to institute court proceedings or make a complaint to the Ombudsman. The Ombudsman points out in this context that the complainant has in fact exercise his right to complain in the present case. 3.6 In view of the above, the Ombudsman considers that no further inquiries into this aspect of the complaint are necessary. The Ombudsman points out that the complainant has the right to renew his application to the Commission for access to the

120

letter of formal notice and that it may be useful to do so, given that the Commission did not exclude that the letter might be made public at a later stage of the procedure. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: In the present case, the Commission has referred only to general factors that may cause delays in dealing with environmental cases and did not provide specific reasons to justify the period of three years that it took to investigate the complainants infringement complaint against Spain. The Ombudsman therefore considers that the Commission has failed to provide an adequate explanation for the length of the investigation. This was an instance of maladministration. Given that this aspect of the case concerns the procedure of investigating the complaint which is already concluded, it is not appropriate to pursue a friendly solution of the matter. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------The Ombudsman notes that the complaint refers to the Mayor of San Justo de la Vega but that the Commission consistently referred in its opinion to the Mayor of San Roman de la Vega. Given that the complainant did not contest the Commission's reference in his observations, the Ombudsman assumes that the Commission's reference was correct.
(2) (1)

OJ L 145, 31/05/2001, P. 0043-0048.

The Ombudsman notes that this letter was not addressed to the complainant, but to the Mayor of the City of Villarejo de Orbigo.
(4)

(3)

OJ C 244, 10/10/2002 P. 0005-0008. Supra, footnote 4.

(5)

(6)

The Commission attached a copy of the letter to its opinion. The letter was in fact addressed to the Mayor of the City of Villarejo de Orbigo.

121

According to the list of correspondence provided by the Commission, on 28 July 2000, the Commission informed the complainant of its intention to close the case. On 29 August 2000, the complainant addressed the Commission and contested its arguments for closure of the case and asked it to continue the inquiry. On 25 September 2000, the Commission informed the complainant that it had asked the Spanish authorities for additional information. The inquiry (303/97/PD) was closed on 13 October 1997 and was reported in the Ombudsman's Annual Report for 1997.
(9) (8)

(7)

Supra, footnote 4. Supra, footnote 2. Case T-191/99, Petrie and Others v Commission, 2001 ECR II-3677, paragraph

(10)

(11)

68.
(12)

Art. 5.3 of Council Regulation (EC) No 2679/98, OJ L 337, 12/12/1998 p. 00080009. Supra, footnote 2.

(13)

122

Special Report from the European Ombudsman to the European Parliament following the draft recommendation to the Council of the European Union in complaint 2395/2003/GG

(Made in accordance with Article 3 (7) of the Statute of the European Ombudsman(1)) SUMMARY The present special report concerns the question as to whether the Council should meet publicly whenever it acts in a legislative capacity. The Ombudsman's inquiry into this matter results from a complaint made in December 2003. At present, the extent to which the Council's meetings in its legislative capacity are public is limited by the Council's own internal Rules of Procedure. All that needs to be done in order to open all such meetings to the public would therefore be for Council to amend its Rules of Procedure. In the Ombudsman's view, the Council's failure to do so constitutes an instance of maladministration. This finding is based on the following considerations: (a) Article 1 (2) of the Treaty on European Union establishes a general principle that the Council and the other Community institutions and bodies must take decisions "as openly as possible" and (b) the Council has not submitted any valid reasons as to why it should be unable to amend its Rules of Procedure with a view to opening up the relevant meetings to the public. The Council took the view that Article 1 (2) of the Treaty on European Union merely indicated that the future Union should be as open as possible, but that at the time of drafting the EU Treaty this was not yet possible. However, as regards the process towards achieving that aim, time is an important factor. The Ombudsman therefore considers that the analysis cannot limit itself to the provisions that were introduced by the Treaty of Amsterdam but has to take into account subsequent developments. In this context, it is important to note that the Council itself, in the new Rules of Procedure adopted in 2000, introduced rules that provided for an increased openness of its meetings as a legislator. In the Ombudsman's view, the Council thus made clear that steps to increase the transparency of its legislative activity had to and could be taken. The adoption of the new Rules of Procedure in 2000 also confirms that doing so was and is possible under Community law as it presently stands. The complainants in the present case referred to a provision of the Treaty establishing a Constitution for Europe according to which the Council shall meet in public when considering and voting on a draft legislative act (Article 50 (2) of the Treaty). For the avoidance of any doubt, it should be noted that the Ombudsman's special report is based on the existing Treaties and Community law as it currently stands, not on the Treaty establishing a Constitution for Europe.

123

THE COMPLAINT The complainants' case In December 2003, the complainants, an MEP belonging to the CDU ("Christlich Demokratische Union Deutschlands"), a German political party, and a representative of the youth group of the same party, complained to the Ombudsman about the fact that the meetings of the Council acting in its legislative capacity were only public to the extent foreseen by Articles 8 and 9 of the Council's Rules of Procedure of 22 July 2002(2) (OJ 2002 no L 230, p. 7). The complainants' approaches to the Council On 18 September 2003, the complainants addressed an open letter to the Council concerning this issue. On 19 November 2003, Mr Solana, the Council's Secretary General, replied to the complainants' open letter on behalf of the Council. Mr Solana pointed out that Article 8 of the Council's Rules of Procedure reflected the compromise that had been reached at the European Council in Seville. He added that the Council deliberations preceding a vote on legislative acts were already public and were made available to the interested public by audiovisual means. Mr Solana noted that the same applied to the presentation by the Commission of its most important legislative proposals and the ensuing debate in the Council. In Mr Solana's view, a substantial part of the Council's legislative activity was thus in practice already public. In addition to that, nearly all documents relating to the Council's legislative activity were accessible on the basis of Regulation No 1049/2001. Mr Solana added that opening the legislative deliberations of the Council to the public was (as evidenced by the deliberations of the Convention) an issue that found widest-reaching support and that the complainants' proposal should therefore be discussed again in the context of preparing to implement the new Treaty establishing a Constitution for Europe. The complainants' arguments In their complaint to the Ombudsman, the complainants submitted the following arguments: The complainants pointed out that the Council was, together with the European Parliament, the legislative body of the European Union. They submitted that the decisions taken by the Council affected the lives of citizens of Europe. Notwithstanding this central importance of the Council, the Council only met in public in exceptional cases and to a limited extent. The complainants noted that Article 49 (2) of the Draft Treaty establishing a Constitution for Europe that had been prepared by the Convention in 2003 was worded as follows:

124

"The European Parliament shall meet in public, as shall the Council of Ministers when examining and adopting a legislative proposal." In the complainants' view, a considerable number of legal and political reasons argued in favour of making it possible that the Council meet in public as of now. The complainants pointed out that public sessions of the Council when it acted as a legislator would in any event become practice when the new constitution entered into force. They submitted that the result achieved by the Convention and the reactions on a European and on a national level left no doubt that a conviction had formed in Europe according to which it was right that the Council should meet in public, since this would strengthen citizens' confidence in the decisions that are taken in Brussels. They further argued that the Council's current practice was not in conformity with the aim laid down in Article 1 (2) of the Treaty on European Union ("TEU") according to which decisions in the EU "are taken as openly as possible and as closely as possible to the citizen". According to the complainants, the transparency of the activity of the EU nowadays had to be considered as a general principle of law which should be fully reflected by the Rules of Procedure of the Council. The complainants further argued that the exclusion of the public did not serve any aims of a higher order. According to them, the exclusion of the public only protected the governments in Member States from close scrutiny by the European public, and this had only negative effects for European integration and for citizens. According to the complainants, the Council's Rules of Procedure should therefore be amended so as to foresee that the Council acting in its legislative capacity should always meet in public. THE INQUIRY The Council's opinion The Ombudsman forwarded the complaint to the Council for its opinion. In its opinion, the Council made the following comments: The principle of openness laid down, inter alia, in Article 1 (2) TEU had great importance. However, this provision was phrased in general terms that suggested more an aim than an absolute rule. The language of this provision was programmatic, as was clear from the phrase "marks a new stage in the process of creating an ever closer union". The Council's current practice concerning the publicity of its meetings was in accordance with its Rules of Procedure. The complainants appeared to argue that the

125

Rules of Procedure themselves were an instance of maladministration. However, the adoption of the Rules of Procedure (which had their legal basis directly in Article 207 (3) of the EC Treaty) was a political and institutional matter. Articles 8 and 9 of the Rules of Procedure had been amended following a compromise between the Member States at the Seville European Council in June 2002. The Draft Treaty establishing a Constitution for Europe provided for the Council to meet in public when examining and adopting legislative proposals. It would seem that the very fact that any such provision had been included in a (draft) constitution confirmed that the matter was not one of maladministration or administrative practice, but a legal and political question outside the scope of the Ombudsman's mandate. The Council furthermore pointed to the existing arrangements for informing the public of the Council's legislative activities, including the possibility to obtain access to documents under Regulation 1049/2001. In the light of the above, the Council submitted that no maladministration had occurred and that the issue raised by the complainants reached beyond the Ombudsman's mandate. The complainants' observations In their observations, the complainants maintained their complaint. They submitted that the fact that Article 1 (2) TEU established a generally phrased aim and not an absolute rule did not stand in the way of their demand that the meetings of the Council should be public. The complainants argued that, on the contrary, it followed from the programmatic meaning of this provision and the aim of taking decisions as openly "as possible" that it was mandatory to further this principle in practice. For a legislative body like the Council, meeting publicly was the classic form of the openness of decision-making, as practised by the legislative bodies of all Member States of the Union. The power to organise its internal matters did not free the Council from its duty to respect and further the principles of the Union. The way in which the Rules of Procedure were actually drafted and their implementation could therefore collide with principles of superior order and thus constitute an instance of maladministration. According to the complainants, the conclusion of the work on the Draft Treaty establishing a Constitution for Europe marked a qualitatively new development regarding the principle of the public character of the Council's meetings when acting as a legislator. This principle would become a general principle of law at the latest with the adoption of the constitution by the heads of state and government of the Member States.

126

Further inquiries After careful consideration of the Council's opinion and the complainant's observations, it appeared that further inquiries were necessary. Request for further information The Ombudsman therefore wrote to the Council at the end of June 2004. In this letter, the Ombudsman noted that Article 49 (2) of the Draft Treaty establishing a Constitution for Europe had also been included in the Treaty establishing a Constitution for Europe that had been agreed at the European Council held in Brussels a few days beforehand. The Ombudsman pointed out that although this treaty had not yet been ratified by Member States, it had been accepted by all Member States. He also noted that the Council's Rules of Procedure were adopted by the Council, that is to say by the representatives of the Member States. In view of the above, the Ombudsman asked the Council to inform him as to what obstacles, if any, it saw to the implementation of the change of its Rules of Procedure requested by the complainants, now that the Treaty establishing a Constitution for Europe, including the above-mentioned provision, had been accepted by Member States. The Council's reply In its reply, the Council again stressed the importance it attached to the issue of transparency. The Council noted that the Treaty establishing a Constitution for Europe still had to be ratified by the Member States. It added that the mere fact that the relevant provision had been added to Part I of the Constitutional Treaty illustrated that the matter raised by the complainants was a political and constitutional question rather than one of maladministration. In conclusion, the Council reiterated its view that there was no maladministration since it had acted in full conformity with the pertinent rules in force. The complainants' observations No observations were received from the complainants. THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation On 9 November 2004, the Ombudsman addressed the following draft recommendation to the Council, in accordance with Article 3 (6) of the Statute of the European Ombudsman:

127

"The Council of the European Union should review its refusal to decide to meet publicly whenever it is acting in its legislative capacity." The European Ombudsman gave reasons for the draft recommendation as follows: 1. The scope of the Ombudsman's mandate 1.1 Article 195 of the EC Treaty entrusts the Ombudsman with the task of examining cases of maladministration in the activity of the Community institutions and bodies. The Treaty does not contain a definition of the term 'maladministration'. In his Annual Report for 1997(3), and in response to a call for clarification by the European Parliament, the Ombudsman proposed the following definition: "Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it." This definition was subsequently welcomed by the European Parliament(4). 1.2 On the basis of the above, the Ombudsman considered that the fact that the Council's present practice was in conformity with the rules in force, which the Council itself has adopted, did not mean that there could not be maladministration. A measure adopted by a Community institution or body can still constitute an instance of maladministration if it fails to be in accordance with a principle that is binding upon the institution or body. 1.3 The Council appeared to argue that the extent to which it opened the meetings that it holds in its legislative capacity to the public was a political decision that was beyond the mandate of the Ombudsman. The Ombudsman accepted that the adoption of the Council's Rules of Procedure on the basis of Article 207 (3) of the EC Treaty was a political and institutional matter to be decided upon by the Council itself. However, the present complaint did not concern the way in which the Council organised its internal procedures but the question as to whether the public could be excluded from the Council's meetings in its legislative capacity. As the complainants had correctly noted, it appeared that the legislative bodies in all the Member States of the European Union met publicly. Article 1 (2) TEU stipulates that decisions in the Union should be taken "as openly as possible". In these circumstances, the Ombudsman considered that the Council had not established that the issue of the access of the public to its meetings was a purely political one that should therefore not be subject to any scrutiny. 1.4 The Council further argued that the very fact that a provision like Article 49 (2) had been added to Part I of the Draft Treaty establishing a Constitution for Europe illustrated that the matter raised by the complainants was a political and constitutional question rather than one of maladministration. The Ombudsman was not convinced by this argument. It was of fundamental importance for citizens to be able to inform themselves about the activity of the legislative bodies. The best way to achieve this was indubitably to open the debates of these legislative bodies to the public. In the light of the importance of the principle of openness in this area, it was not surprising that a provision enshrining it was included first in the Draft Constitutional Treaty and

128

subsequently in the Treaty establishing a Constitution for Europe that had been adopted by Member States at the European Council in Brussels in June 2004(5). 1.5 In order to avoid any possible misunderstanding, the Ombudsman considered it useful to add that the present complaint did not concern the legislative activity of the Council as such, but the question as to whether the meetings of the Council acting in its legislative capacity should be public. 1.6 On the basis of the above, the Ombudsman took the view that the issue raised in the present complaint fell within the mandate that had been conferred upon him by Article 195 of the EC Treaty. 2. The lack of openness of the meetings of the Council when acting as a legislator 2.1 The complainants basically alleged that the Council's current practice of not opening all the meetings it holds in its legislative capacity was not in conformity with the aim laid down in Article 1 (2) TEU according to which decisions in the EU "are taken as openly as possible and as closely as possible to the citizen". 2.2 The Council agreed that the principle of openness laid down inter alia in Article 1 (2) of the Treaty on European Union had great importance. It submitted, however, that this provision was phrased in general terms that suggested more an aim than an absolute rule and that the language of this provision was programmatic. The Council therefore took the view that its current practice as laid down in Articles 8 and 9 of its Rules of Procedure did not constitute maladministration. 2.3 The Ombudsman agreed that Article 1 (2) TEU did not contain a precise rule but rather a general principle. The fact remained, however, that this provision clearly directed the institutions and bodies to see to it that all decisions at the level of the EU are taken as openly "as possible". The Ombudsman therefore considered that it should be ascertained whether opening all the meetings of the Council acting in its legislative capacity would be possible and, if so, whether there were nevertheless good reasons for not doing so. 2.4 The Ombudsman noted that, as the Council itself had stressed, some of the meetings of the Council acting in its legislative capacity were already public by virtue of the rules that were laid down in Articles 8 and 9 of the Council's Rules of Procedure. These Rules of Procedure are adopted by the Council itself, that is to say a body composed of a representative of each Member State (Article 203 of the EC Treaty). The Ombudsman noted that in October 2004, the Member States of the EU had signed the Treaty establishing a Constitution for Europe that contained an express provision to the effect that the Council should meet in public when considering and voting on a draft legislative act. Although this treaty had not yet been ratified by all the Member States in accordance with their respective constitutional requirements, the Ombudsman considered that the very fact that the representatives of the Member States had felt able to agree on such a provision appeared to indicate that it would be

129

possible to open the relevant meetings of the Council to the public already now. Mindful of the possibility that he might have overlooked considerations that could be relevant in this context, the Ombudsman nevertheless wrote to the Council in June 2004 in order to ask it to inform him as to what obstacles, if any, it saw to the implementation of the change of its Rules of Procedure requested by the complainants. In its reply, the Council did not refer to any such obstacle. The Ombudsman therefore considered that it would be possible for the Council to decide that the public should be admitted to its meetings in a legislative capacity, unless there were good reasons for not doing so. 2.5 The Ombudsman carefully examined the arguments submitted by the Council. However, the Council did not refer to any principles or aims of a higher order that could entitle it to refuse to open its meetings in a legislative capacity to the public. On the contrary, the Ombudsman noted that the Council had stressed the great importance it attached to the issue of transparency. In its letter to the complainants of 19 November 2003, the Secretary General of the Council had accepted that opening the legislative deliberations of the Council to the public was an issue that found widestreaching support. 2.6 In its opinion, the Council referred to the existing arrangements for informing the public of the Council's legislative activities, including the possibility to obtain access to documents under Regulation 1049/2001. The Ombudsman considered that these arrangements, important and commendable though they might be, were not relevant for the present inquiry which concerned access to the meetings of the Council, and not information about these meetings. 3. Conclusion In view of the above, the Ombudsman concluded that the fact that the Council refused to decide to meet publicly whenever it is acting in its legislative capacity without giving good reasons for this refusal was an instance of maladministration. The Council's detailed opinion After having received the draft recommendation, and in accordance with Article 3 (6) of the Statute of the European Ombudsman, the Council sent a detailed opinion on 17 February 2005. In its detailed opinion, the Council made the following comments: Article 2 (1) of the Ombudsman's Statute defined the Ombudsman's remit as uncovering maladministration in the "activities" of Community institutions and bodies. The Council's Rules of Procedure were not in themselves an "activity" of the Council but rather governed the manner in which the Council exercised its activities.

130

The Council could not agree with the distinction made by the Ombudsman between the way in which the Council organised its internal procedures and the fact that the public was not admitted to all Council meetings dealing with legislative matters. In fact, the degree of publicity of Council meetings was one of the political choices made by the Council when it organised its internal procedures. The organisation of the Council's work was a matter of great importance for its members. The fact that the current provisions were the follow-up of a political decision by the European Council - the highest political body in the EU - in itself evidenced the political sensitivity of the matter. The Council thus continued to believe that the current complaint was beyond the Ombudsman's mandate. Article 1 (2) TEU stated that "[t]his Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen" (emphasis added). The Ombudsman's reasoning seemed to rest on the incorrect assumption that the highlighted words were superfluous. Article 1 (2) was not directly applicable. More importantly, by its wording, this provision was programmatic in character. That wording in itself did not permit the legal framework within which the Council operated to be judged against Article 1 (2); at most, it indicated that the future Union should be as open as possible, but that at the time of drafting the EU Treaty this was not yet possible. Indeed, Article 3 TEU provided that "[t]he Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire." Article 207 (3) of the EC Treaty was worded as follows: "The Council shall adopt its Rules of Procedure. For the purpose of applying Article 255 (3), the Council shall elaborate in these Rules the conditions under which the public shall have access to Council documents. For the purpose of this paragraph, the Council shall define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in those cases, while at the same time preserving the effectiveness of its decision-making process. In any event, when the Council acts in its legislative capacity, the results of votes and explanations of vote as well as statements in the minutes shall be made public." Article 1 (2) TEU was not hierarchically superior to Article 207 of the EC Treaty. Both were provisions of primary Community law. Indeed, since Article 1 (2) did not even lay down a principle governing current law but stated a rather general long-term aim, it could not possibly override the explicit and clear language of Article 207.

131

Moreover, the current wording of both Article 1 (2) TEU and Article 207 (3) of the EC Treaty dated from the Amsterdam Treaty, which showed that the former provision did not reflect any more recent thinking than the latter. Rather, Article 207 (3) was the practical reflection - as far as the Council's operations were concerned - of how far the authors of the Treaties felt the aim laid down in Article 1 (2) could be pushed. The Council concluded by saying that it was thus convinced that its Rules of Procedure did not constitute an instance of maladministration. The complainants' observations In their observations, the complainants maintained their complaint and made the following further comments: It was true that both Article 1 (2) TEU and Article 207 (3) of the EC Treaty were provisions of primary Community law and thus found themselves on the same level as regards the hierarchy of norms. Article 1 (2) TEU did therefore not take precedence over Article 207 (3) of the EC Treaty. However, Article 1 (2) TEU had legal effects for the Union, since it was a legally binding "principle" of the EU. Thus the need for decisions to be taken "as openly as possible" had to be taken into account as regards every decision taken by the EU. To the duty of the institutions to take account of the principle of openness in their decisions corresponded the duty to review their basic procedural rules in the light of Article 1 (2) TEU. The fact that Article 1 (2) TEU stated that this Treaty "marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen" did not contradict this view, given that the implementation constituted a process that had already started with the Treaty of Amsterdam. The Ombudsman's evaluation of the Council's detailed opinion The Ombudsman notes that the Council objects to his position on two main grounds. First, the Council takes the view that the present complaint is beyond the Ombudsman's mandate. Second, the Council believes that there was in any event no maladministration. As regards the first of these objections, it should be recalled that Article 195 of the EC Treaty entrusts the Ombudsman with the task of examining cases of maladministration in the activities of the Community institutions and bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. The present complaint concerns the question as to whether the Council should meet publicly whenever it acts in a legislative capacity. The Ombudsman takes the view that the Council's meetings are "activities" of the Council in the sense of Article 195

132

of the EC Treaty. Moreover, the Ombudsman finds it difficult to see why the adoption of the Rules of Procedure by the Council should not also be considered as an "activity" of a Community institution. As regards the Council's argument that the present complaint concerns a political choice that does not fall within the Ombudsman's remit, it should be recalled that this complaint does not concern the way in which the Council organises its internal procedures but the question as to whether the public can be excluded from the Council's meetings in its legislative capacity. The Ombudsman notes that the Council appears to argue that the degree of publicity of its meetings belongs to the political choices to be made by the Council. In the Ombudsman's view, and as explained below, this position is difficult to reconcile with Article 1 (2) TEU. Whilst Article 207 of the EC Treaty provides for the Council to adopt its own Rules of Procedure, it does not stipulate that the degree to which the meetings of the Council in its legislative capacity are to be open to the public should be regarded as a political choice and left to the discretion of the Council. Regardless of the issue as to what effect has to be attributed to Article 1 (2) TEU, it should be noted that this provision envisages that decisions in the EU should be taken as openly "as possible". There is no suggestion that the degree of openness should depend on the political will of the relevant institutions or bodies of the EU. The Ombudsman therefore continues to believe that the present complaint falls within his remit. As regards the substantive issue, the Council correctly draws attention to the full wording of Article 1 (2) TEU according to which "[t]his Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen". The Ombudsman agrees that this provision envisages a process towards a situation where "decisions are taken as openly as possible". However, the Ombudsman is unable to agree with the Council's view that Article 1 (2) TEU should be regarded as a programmatic provision with no legal effect. The relevant clause in Article 1 (2) TEU was introduced by the Treaty of Amsterdam that was signed on 2 October 1997 and that entered into force in 1999. As the Council has correctly pointed out, the present wording of Article 207 (3) of the EC Treaty was also adopted by that treaty. However, nothing in Article 207 (3) prevents the Council from opening its meeting as a legislator to the public. In the Ombudsman's view, the Council's reference to this provision is thus inconclusive. The Ombudsman notes the Council's view that Article 1 (2) TEU merely indicated that the future Union should be as open as possible, but that at the time of drafting the EU Treaty this was not yet possible. However, even if this view were correct, the Ombudsman considers that the Council has failed to give due regard to two important considerations: First, Article 1 (2) TEU clearly indicates that decisions in the European Union should be taken "as openly as possible". Article 1 (2) TEU thus unambiguously points the direction in which the Union and its institutions are to develop. There is thus no discretion or political choice to be made by the Council as

133

regards this direction. However, the Council has not put forward any objective reasons to explain why the Council should be unable to move in that direction and open its meetings in a legislative capacity to the public. Second, as regards the process towards achieving that aim, time is an important factor. The Ombudsman therefore considers that the analysis cannot limit itself to the provisions that were introduced by the Treaty of Amsterdam but has to take into account subsequent developments. In this context, it is important to note that the Council itself, in the new Rules of Procedure adopted in 2000, introduced rules that provided for an increased openness of its meetings as a legislator. In the Ombudsman's view, the Council thus made clear that steps to increase the transparency of its legislative activity had to and could be taken. The adoption of the new Rules of Procedure in 2000 also confirms that doing so was and is possible under Community law as it presently stands. In their complaint, the complainants argued that the adoption of a draft Treaty establishing a Constitution for Europe in 2003 and its signature by all the Member States of the EU in 2004 constituted important events that were relevant for their case. This Treaty has not yet been ratified by all the Member States and has thus not entered into force yet. For the avoidance of any doubt, it should be noted that the Ombudsman's appraisal of the present case is based on the existing Treaties and Community law as it currently stands, not on the Treaty establishing a Constitution for Europe. The Ombudsman therefore maintains his view that the fact that the Council refuses to decide to meet publicly whenever it is acting in its legislative capacity without giving valid reasons for this refusal is an instance of maladministration. The Ombudsman's recommendation In view of the above, the Ombudsman re-states his draft recommendation as a recommendation to the Council as follows: The Council of the European Union should review its refusal to decide to meet publicly whenever it is acting in its legislative capacity. The European Parliament could consider adopting the recommendation as a resolution. Strasbourg, 4 October 2005

P. Nikiforos DIAMANDOUROS -------------------------

134

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)

(1)

OJ 2002 L 230, p. 7. The text of these provisions is quoted in the Ombudsman's draft recommendation in the present case which is available (in English and German) on the Ombudsman's website (http://www.euro-ombudsman.eu.int). See pp. 22-23. See the Ombudsman's Annual Report for 2002, p. 18.

(3) (4) (5)

It may be useful to point out that Article 49 (2) of the Draft Constitutional Treaty became Article 50 (2) of the Treaty establishing a Constitution for Europe and was slightly reworded. The provision is now phrased as follows: "The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act."

135

Decision of the European Ombudsman on complaint 2411/2003/MHZ against the European Commission

Strasbourg, 12 January 2005

Dear Mr J., On 17 December 2003 you made a complaint to the European Ombudsman against the European Commission, on behalf of Fair Trials Abroad. The complaint concerns the procedure for funding projects under the AGIS framework programme for police and judicial co-operation in criminal matters and the handling by the European Commission of your application for such funding. On 13 January 2004, I forwarded the complaint to the President of the European Commission. On 30 April 2004, the Commission sent its opinion, which I forwarded, to you with an invitation to make observations. On 2 July 2004, I received your observations. I am writing to let you know the results of the inquiries that have been made.

THE COMPLAINT The complaint was submitted on behalf of Fair Trials Abroad(1), a non-governmental organisation. The facts according to the complainant can be summarised as follows: On 19 and 24 February 2003, the complainant asked the Commission to advise it about which kind of AGIS application forms it had to fill in order to apply for AGIS funding(2). The Commission answered by e-mails of 19 and 24 February 2003. On 4 March 2003, the complainant submitted an application for funding to the Justice and Home Affairs Directorate of the European Commission, under the framework programme AGIS "Global support to the activities of an organisation". The application was for a one-year operating grant. The funding requested was EUR 150 000. On 9 April 2003, the complainant received an acknowledgement of receipt with the file reference (2003/AGIS/022).
136

On 24 June 2003, the Commission informed the complainant that its project would be considered for co-financing and that the grant requested would be reduced to EUR 80 000. The Commission also requested a number of additional documents to be submitted (two pages of requirements), but did not mention that the application was not complete. Afterwards, the complainant requested, by different e-mails, a clarification of the aforementioned requirements. In the absence of a reply from the Commission, the complainant submitted a new budget estimate, with the modifications requested by the Commission as understood by the complainant, marked as "draft for discussion only". On 8 July 2003, the Commission informed the complainant that its initial application did not include any detailed budget estimate. To the complainant's surprise, the Commission revealed that the CD that was attached to its initial application contained an empty Excel budget form. In September 2003, the complainant met with the Commission. On 16 October 2003 by telephone and on 17 October 2003 by letter, the Commission advised the complainant to apply for different funding, i.e. a backdated project grant starting from September 2003, for the amount of EUR 68 297 and for a duration of seven months. With this end in view, the Commission asked the complainant to change the budget estimate within seven days. On 5 and 6 November 2003, the complainant submitted its modified application for a project grant, according to the Commission's requirements. On 20 November 2003, the Commission sent a letter to the complainant and explained, for the first time, that the operating grant for which it had applied (i.e. the EUR 80 000 application) could not be considered, because the complainant had missed a deadline: all documents, including the budget estimates should have been sent before 31 July 2003. The Commission also informed the complainant that its application for a project grant (i.e the EUR 68 297 application) could not be considered either, given that the complainant had failed to provide the required declaration of partnership. In this context, the Commission stated that when, in October 2003 and "in the heat of the moment", it proposed to the complainant to modify its original application for an operating grant in order to apply for a project grant, one principal admissibility criterion had been overlooked: to have at least two partners, based in two different Member States or two Member States and one candidate country, involved in the same project. On 17 December 2003, the complainant lodged a complaint with the Ombudsman. It alleged that the funding procedure was overly complex and difficult to understand.

137

As regards its own application, the complainant alleged that the European Commission changed the parameters for evaluation, applied inappropriate deadlines and did not state adequate reasons for its decision. Finally, the complainant alleged that the Commission obliged it to undertake expensive and time-consuming activities in order to meet formal admissibility criteria although, from the beginning of the process, the Commission knew that it was not able to fulfil the substantive criterion of having partner organisations involved in its project. In this regard, the complainant explains that it is an EU wide organisation, working with lawyers around the EU and beyond on behalf of EU citizens and, as such, does not have partner organisations. The complainant argued that it lost an opportunity to secure funds elsewhere for its activity because the Commission falsely maintained its expectations. The complainant claimed that the Commission should compensate it for the losses occasioned by its maladministration.

THE INQUIRY The Commission's opinion The Commissions opinion can be summarised as follows: Firstly, the Commission outlined the legal status of the complainant (an NGO registered as charity in the UK) and its main activity. The Commission also recalled that the complainant had already received grants from the Commission in the past (under the "Europeanisation" programme in 2001 and under the Grotius programme in 1997, 1998 and 1999). Secondly, the Commission explained in general terms the AGIS funding and the 2003 call for proposals. The AGIS funding is based on Council Decision 2002/630/JHA of 1 August 2002(3) and was implemented in 2003. According to Article 3.5.b of the Decision, to be eligible for funding, NGOs had to pursue activities with a European dimension involving as a general rule at least half of the Member States. The AGIS call for proposals covered both project grants and operating grants for NGO activities, in accordance with Art. 3.5 of the Decision. One single application form and one single budget form was published for use for both types of grants. According to the Commission, a high proportion of applications had shortcomings as regards the requirements set out in the call (specifically in providing requested documents and using the Excel template for the budget form). The Commission therefore decided to examine all the proposals with similar failings. The applicants were then asked to send the missing documents within a short period of time because the Commission aimed to ensure that all applicants were able to fulfil all requirements before the end of the evaluation procedure. Afterwards, the Commission evaluation committee evaluated

138

the proposals and checked whether they complied with the requirements set out in the Financial Regulation (Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002)(4) and whether their content corresponded to the funding applied for. Then it presented a list of pre-selected proposals to the AGIS Committee. On 28 May 2003, the AGIS Committee expressed its opinion. Afterwards, the Commission evaluation committee formally adopted a list of pre-selected projects for which the contracts to the promoters could be issued and the Director General of DG Justice and Home Affairs took individual decisions which were communicated to applicants. The Commission acknowledged that this first year of the programme was a "learning period" for candidates and that difficulties appeared with the programmes implementation. In particular, the Commission recognised that the use of one single application form for two different types of grants may have contributed to the widespread failure of applicants to fulfil all the requirements. For that reason, the Commission admitted all applicants with the same failures to the pre-selection stage of the procedure. The Commission also explained that it provided two separate application forms and budget forms, one for project grants and another for operating grants for the 2004 call for proposals. The Commission also stated that it is examining further means of improving the overall processing of applications for grants. Thirdly, the Commission referred to its handling of the complainants applications for an operating grant and for a project grant. On 7 March 2003, the complainant submitted an AGIS 2003 application for an operating grant. According to the Commission, the application did not comply with the requirements published in the call (lack of detailed budget form, lack of specified timetable, failure to indicate outputs clearly, failure to provide copies of several documents). However, given that the project appeared to meet the policy priority of improving assistance in the field of fundamental rights, the complainant's proposal was preselected by virtue of the decision of the Director General of DG Justice and Home Affairs dated 10 June 2003. Then the Commission asked the complainant to complete the file in order to move from the pre-selection stage to the contract stage (in particular, to provide a clear description of the activities planned) and sent a letter with detailed questions on 24 June 2003. The Commission also asked other applicants in the same situation to complete their files. On 8 July 2003, the Commission reminded the complainant to provide further information. On 16 July 2003, the complainant asked for a meeting. The Commission agreed (although it stated in its opinion to the Ombudsman that it was not a normal procedure) and the meeting took place on 10 September 2003.

139

The complainant completed its file on 6 October 2003, i.e. two months after the deadline established in Article 112.2 of the new Financial Regulation. According to this provision, the agreement on an operating grant may not be signed more than four months after the start of the beneficiary's budgetary year (in the case of the complainant, its budgetary year started on 5 April 2003, so the deadline was 5 August 2003). The Commission acknowledged that it had informed the complainant that it was no longer possible to process the complainant's application for an operating grant only on 16 October 2003 by telephone and on 17 October 2003, by letter. On the same date and since the complainant's application for an operating grant was not ready for processing in time to meet the deadline, the Commission proposed to the complainant to modify its application and apply for a project grant. On 6 November 2003, the complainant sent the application for a project grant. However, the complainant failed to attach a partnership declaration even though such a declaration was a condition to apply for the project grant. In addition, the complainant did not include the summary of the budget corresponding to the changes made in the budget form and additional expenses, which had not been agreed upon previously (such as travel to Guantanamo Bay). Therefore, the Commission did not select the complainant's proposal for a project grant. Finally, the Commission stressed that it never gave any assurance that the applicant was entitled to receive any funding and the possible expenditure of the complainant was at its own responsibility and risk. The Commission also pointed out that the complainant's stance that it lost the possibility to secure funds elsewhere does not concern the Commission but is a question related to the internal organisation of the complainant. The Commission also pointed out that the complainant declared itself to be a Europewide organisation but was not able to provide, despite the Commission's explicit request, the declaration of partnership required on the basis of Article 3.2 of Decision 2002/630/JHA, as specified in the AGIS call for proposals. The Commission stated that the application process involved numerous exchanges in the complainant's case because the complainant did not provide the basic information for evaluation in time and in accurate way, in spite of the Commission's suggestions in a series of written and oral exchanges. The complainant's observations In summary, the complainant maintained its original allegations and claims. The complainant put forward that, in order to ensure that it abided by the requirements of the application process, it saw to it that one of its representatives attended an AGIS Funding Programme meeting organised by the UK Home Office on 6 October 2003. It

140

added that it was the only NGO represented at that meeting. The complainant concluded that policy priorities were clearly focused on government bodies, that the application form allowed no flexibility and that it was not designed for NGOs in general.

THE DECISION 1. The alleged deficiencies of the funding procedure under the AGIS programme 1.1 The complaint concerns the procedure for funding projects under the AGIS framework programme for police and judicial co-operation in criminal matters. The complainant alleges that the funding procedure was overly complex and difficult to understand. 1.2 The Commission acknowledged that the first year of the programme (2003) was a "learning period" for candidates and that difficulties appeared with the programmes implementation. In particular, the Commission recognises that the use of one single application form for two different types of grants may have contributed to the widespread failure of applicants to fulfil all the requirements. For that reason, the Commission admitted all applicants with the same failures to the pre-selection stage of the procedure. The Commission also stated that, for the 2004 call for proposals, it provided separate forms for the two different types of grant and that it is examining further means of improving the overall processing of applications for grants. 1.3 The Ombudsman considers it regrettable that the application procedure under the AGIS programme appears to have led to difficulties with the programmes implementation in 2003. However, the Ombudsman notes that the Commission has recognised these difficulties and took corrective action in the course of the 2003 procedure for the benefit of all applicants whose applications contained similar shortcomings at the pre-selection stage. The Ombudsman also notes that the Commission appears to have learnt from the problems that arose in 2003 and has improved the procedure for 2004 by providing separate application forms for separate types of grant. The Commission also appears to be committed to further improving the overall processing of applications for grants. 1.4 The Ombudsman considers, therefore, that no further inquiries are necessary as regards this aspect of the complaint. 2. The allegation of changed parameters for evaluation, inappropriate deadlines and failure to state adequate reasons 2.1 The complainant alleges that, when dealing with its applications, the Commission changed the parameters for evaluation, applied inappropriate deadlines and did not state adequate reasons for its decision.

141

2.2 The Commission states that the application process involved numerous exchanges in the complainant's case because the complainant did not provide the basic information for evaluation in time and in accurate way, in spite of the Commission's suggestions in a series of written and oral exchanges. According to the Commission, the complainants initial application for an operating grant was incomplete and it asked the complainant for additional information by letters dated 24 June 2003 and 8 July 2003. At the complainant's request, in September 2003, the Commission met the complainant. The complainants application for an operating grant was only completed only on 6 October 2003. This was beyond the deadline established by Article 112 (2) of the Financial Regulation which states that an agreement for an operating grant may not be signed more than four months after the start of the beneficiarys budget year. The Commission acknowledged that it informed the complainant of this fact only on 16 and 17 October 2003. The Commission then advised the complainant to modify its application so as to apply for a project grant instead. Finally, on 20 November 2003, the Commission informed the complainant that its application for a project grant could not be accepted because the complainant had failed to supply the necessary declaration of partnership. 2.3 The Ombudsman considers that the Commission has provided a reasonable explanation of why it advised the complainant to apply for a project grant instead of an operating grant. Furthermore, the Ombudsman notes that the deadline established by Article 112.2 of the Financial Regulation is binding on the Commission. Finally, the Ombudsman does not consider that the complainant has succeeded in demonstrating that the Commission failed to state adequate reasons for rejecting the complainants grant applications. The Ombudsman therefore finds no maladministration by the European Commission as regards this aspect of the complaint. The Ombudsman points out, however, that the question of whether the Commission failed to give adequate advice to the complainant is dealt with in the next part of this decision. 3. The allegation that the Commission induced the complainant to undertake expensive and time consuming activities and related claim 3.1 The complainant alleges that the Commission obliged it to undertake expensive and time consuming activities in order to meet formal admissibility criteria although, from the beginning of the process, the Commission knew that it was not able to fulfil the substantive criterion of having partner organisations involved in its project. In this regard, the complainant explains that it is an EU wide organisation, working with lawyers around the EU and beyond on behalf of EU citizens and as such does not have partner organisations. The complainant argues that it lost an opportunity to secure funds elsewhere for its activity because the Commission falsely maintained its expectations and claims that the Commission should compensate it for losses occasioned by its maladministration.

142

3.2 The Commission argues that it never gave any assurance that the applicant was entitled to receive any funding and that the possible expenditure of the complainant was at its own responsibility and risk. The Commission also argues that the complainant's stance that it lost a possibility to secure funds elsewhere does not concern the Commission but is a question related to the internal organisation of the complainant. 3.3 The Ombudsman first notes that the Commission has stated that the complainant received grants from the Commission in the past (in 1997, 1998, 1999 and 2001). As regards the complainants applications in 2003, the Ombudsman makes the following findings. In March 2003, the complainant applied for an operating grant. The Commission subsequently took action to seek to move the complainants application, as well as other applications, from the pre-selection to the contract stage by advising the complainant as to the further information needed. At a later stage (October 2003), the Commission advised the complainant to apply for a project grant. The complainant did so, but its application was later rejected because the complainant had not submitted the required declaration of partnership. The Ombudsman notes in this context that the requirement to have partner organisations appears to be a condition for both operating grants and project grants. 3.4 The Ombudsman recalls that principles of good administration require an official, where necessary, to advise the public on how a matter which comes within his or her remit is to be pursued and how to proceed in dealing with the matter(5). The Ombudsman takes the view that, in the circumstances of the present case, the Commission should have ensured that the advice it gave to the complainant in October 2003 concerning the application for a project grant was appropriate to the complainant's particular situation. The Commissions failure to draw the complainants attention to a fundamental condition of eligibility for project applications was therefore an instance of maladministration and a critical remark will be made as regards this aspect of the complaint. 3.5 As regards the complainant's claim for compensation, the Ombudsman notes that the complainant has neither quantified the claim nor submitted evidence to prove either of the two kinds of loss that it argues it suffered. The Ombudsman takes the view, therefore, that if the complainant wishes to pursue its claim for compensation, it should address the Commission directly in the light of the Ombudsman's finding of maladministration. The complainant would naturally have the possibility to make a new complaint if it considers the Commissions response to any such claim to be unsatisfactory. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

143

Principles of good administration require an official, where necessary, to advise the public on how a matter which comes within his or her remit is to be pursued and how to proceed in dealing with the matter(6). The Ombudsman takes the view that, in the circumstances of the present case, the Commission should have ensured that the advice it gave to the complainant in October 2003 concerning the application for a project grant was appropriate to the complainant's particular situation. The Commissions failure to draw the complainants attention to a fundamental condition of eligibility for project applications was therefore an instance of maladministration. The Ombudsman takes the view that if the complainant wishes to pursue its claim for compensation, it should address the Commission directly in the light of the Ombudsman's finding of maladministration and that it is not, therefore, appropriate to pursue a friendly settlement of the matter. On basis of the above, the Ombudsman closes the case. The President of the European Commission will be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------According to its website, (http://www.fairtrialsabroad.org), Fair Trials Abroad seeks to help citizens of the European Union, who are accused of a crime in a country other than their own, to assert their rights to due administration of justice. The Ombudsman notes that the Commissions website (http://europa.eu.int/comm/justice_home/funding/agis/wai/funding_agis_en.htm) states that the AGIS framework programme is named after a king of ancient Sparta.
(3) (2) (1)

OJ L 203, 01/08/2002 P. 0005-0008. OJ L 248, 16/09/2002 P. 0001-0048.

(4)

Article 10 (3) of the European Code of Good Administrative Behaviour, available on the Ombudsman's website: http://www.euro-ombudsman.eu.int. Article 10 (3) of the European Code of Good Administrative Behaviour, available on the Ombudsman's website: http://www.euro-ombudsman.eu.int.
(6)

(5)

144

Decision of the European Ombudsman on complaint 2415/2003/JMA against the European Commission

Strasbourg, 31 January 2005

Dear Mr M., On 16 December 2003, you wrote to the European Ombudsman complaining against both the European Commission and the Council of the EU, in connection with the alleged lack of parking spaces for disabled people near the main buildings in Brussels of both the Commission and the Council. Since your allegations were addressed against two institutions, I decided to register them under two different file numbers. Your allegations against the European Commission were registered under complaint number 2415/2003/JMA, and those against the Council were registered under reference 237/2004/JMA. Your complaint against the Council, concerning the alleged failure of this institution to take the necessary steps to ensure that a sufficient number of parking spaces for disabled people is available near its Brussels' headquarters, is the object of a separate inquiry currently under way. The present decision therefore deals only with your complaint against the Commission, which concerned the institution's alleged failure to take the necessary steps to ensure that sufficient parking spaces for people with disabilities are available near its main buildings in Brussels. On 2 February 2004, I forwarded your complaint to the President of the Commission with a request for comments. I received the Commission's opinion on 5 May 2004, which I forwarded to you with an invitation to make observations. On 8 October 2004, 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 facts of the case are, in summary, as follows: The complainant suffers from a serious disability. He is a journalist working for the TV channel France 2, where he covers EU matters, having been accredited to the main European institutions in Brussels.

145

The complainant has encountered difficulties to cover press events taking place in the main buildings in Brussels of both the Commission and the Council, since, unlike the Parliament, those institutions do not make parking spaces available to disabled people. He stated that parking near the Commission's premises in Brussels is sparse, and frequently, parking infringements are severely fined by the Brussels authorities. The complainant explained that, even though his car displays a special permit for disabled people, he has been fined on several occasions. He wondered whether the European authorities could not request that their Belgian counterparts take the necessary initiatives to solve the lack of parking spaces for disabled people near the buildings in Brussels of many EU institutions. In the light of the information submitted in the complaint, the Ombudsman opened an inquiry against the European Commission. The allegation on which the Ombudsman asked the Commission to submit an opinion was the following: The complainant alleges that the Commission has failed to take the necessary steps to ensure that the Belgian authorities reserve a sufficient number of parking spaces for people with disabilities near its main buildings in Brussels.

THE INQUIRY The European Commission's opinion In its opinion, the Commission stated that all its buildings in Brussels have a number of parking places reserved for disabled people. Some of those places are located in the same buildings; others are outside the Commission's premises on the nearby streets. As regards the places reserved for disabled people within the Commission's buildings, the institution noted that the regulations applicable to its buildings require at least two parking places to be reserved for disabled people. In the case of visitors, the Commission explained that it tries to accommodate the visitors needs on the basis of the building's available parking spaces. Places for disabled visitors can be made available upon request to the responsible official. In the specific case of the complainant, the Commission invited him to contact the person in charge of these procedures, whose contact details were given in the opinion. The institution noted that if the complainant makes a request for a parking space the day before a press conference takes place in the Commission's headquarters, its services will take the necessary measures to have a special place reserved. As for the places reserved for disabled people in the streets near the Commission's buildings, the institution explained that the designation of those parking locations falls exclusively under the responsibility of the Belgian authorities. The Commission took the initiative, however, to undertake a review of the number of existing parking spaces for disabled people near its buildings. It appears that out of 60 buildings in Brussels, only four dispose of parking spaces for disabled people. As a result of this review, the

146

Commission has asked the local authorities to take the necessary measures to ensure that additional parking spaces for disabled people are designated near its other buildings. The Commission concluded by underlining the importance it gives to preventing any discrimination against disabled people, and undertook to do what is necessary to put this commitment into practice. The complainant's observations In his observations on the Commission's opinion, the complainant repeated the allegations made in his complaint and underlined that the situation had not changed. He noted that the responsible local authorities have fined him several times when he had parked his vehicle near the Commission and/or the Council premises in Brussels, despite a very visible sign posted in his car which formally identifies him as a disabled person. Even though he has contested the fines, no reply has been given to him by the local authorities.

THE DECISION 1. Preliminary remark 1.1 To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. 1.2 The Ombudsman's inquiries into this complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission. The Ombudsman has no competence to inquire into the complainants allegations against the responsible Belgian authorities, concerning the parking fines he has received regardless of his special permit for disabled people, or the lack of reply to his letters contesting these fines. 1.3 On the basis of information obtained through informal contacts with the services of the Belgian Federal Ombudsman, it appears that there is no specialised ombudsman in Belgium responsible for specific issues involving disabled people. Moreover, since the problems at stake occur in the city of Brussels, the Belgian Federal Ombudsman does not have the power to deal with them. As regards the lack of reply to the complainant's letters, the services of the Belgian Federal Ombudsman suggested that the complainant might contact the mayor of Brussels ("Cabinet du Bourgmestre- Hotel de Ville"). More generally, it appears that the municipal authority responsible for the provision of parking spaces for disabled people, is the "Echevin de l'Etat civil" of Brussels.

147

2. Alleged failure by the Commission to ensure parking for disabled people 2.1 The complainant alleges that the European Commission has failed to take the necessary steps to ensure that the Belgian authorities reserve a sufficient number of parking spaces for people with disabilities near the main Commission buildings in Brussels. He notes that, despite the fact that his vehicle displays a special permit for disabled people, he was fined on several occasions for parking his vehicle near the Commission and/or the Council premises in Brussels. Even though he has contested the fines, no reply has been given to him by the local authorities. 2.2 The Commission argues that all its buildings in Brussels have a number of parking places for disabled people. Accordingly, each of its buildings has, at least, two parking spaces reserved for disabled people. In the case of visitors, spaces for disabled visitors can be made available upon request to the responsible official. The institution explains that the spaces for disabled people in the streets near its buildings in Brussels are the exclusive responsibility of the Belgian authorities. Since only four of the 60 Commission buildings in Brussels have parking spaces for disabled people, the institution asked the local authorities to take additional measures. 2.3 The Ombudsman underlines that the Charter of Fundamental Rights of the European Union recognises the need to implement measures in support of disabled people and to promote their integration. Article 26 of the Charter states that, "The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community". The Ombudsman notes that the Commission had already laid the foundations for such policies in its communication of 10 May 2000 entitled "Towards a barrier-free Europe for people with disabilities". In this document, the institution committed itself to developing and supporting a comprehensive and integrated strategy to tackle social, architectural and design barriers that unnecessarily restrict access for people with disabilities(1). In order to further its commitments to creating a barrier-free service accessible to all as well as to strengthen the credibility of its recommendations to other actors, the Commission undertook to foster the development of best practice within its own organisation by, among other things, seeking to: "[...] ensure that offices and facilities are accessible to its employees and to citizens who visit the Commission services. It will ensure that [...] when organising venues for meetings the needs of people with disabilities are considered".

148

2.4 The Ombudsman welcomes this undertaking but notes that the necessary followup measures do not yet appear to have been announced, either in the 2003 Commission's own Code of Good Conduct for Disabled Staff, or in its Communication of 30 October 2003 on "Equal opportunities for people with disabilities: A European Action Plan"(2). 2.5 As regards the availability of parking spaces near the Commission buildings, the Ombudsman takes note of the explanations given by the institution regarding the existence of a number of parking spaces reserved to people with disabilities in all of its buildings in Brussels, and its suggestion to the complainant that he should contact the responsible Commission official prior to any meeting so that a place can be made available for him. The Ombudsman welcomes the Commission's request to the responsible Belgian authorities to take measures to ensure that additional parking places for disabled people are reserved near its buildings in Brussels. The Ombudsman invites the Commission to keep him informed of the results of this initiative, and, if necessary, to bring the matter to the attention of the appropriate fora, including the High Level Group of Member States' Representatives on Disability. 2.6 In view of the above, the Ombudsman does not consider it justified to pursue any further inquiries as regards this case. The Ombudsman therefore decides to close the case. 2.7 The Ombudsman recalls, however, that in the framework of his on-going own initiative inquiry OI/3/2003, he is currently reviewing the more general issue of the Commission's integration of persons with disabilities, in particular the measures implemented by the institution to ensure that persons with disabilities are not discriminated against in their relations with the institution. The Ombudsman considers that accessibility to the Commission's premises by disabled people travelling by car should constitute a particular element of that inquiry. He therefore intends to assess whether any positive development has taken place in this area in the context of his own initiative inquiry. 3. Conclusion In view of the results of his investigation, the Ombudsman considers that no further inquiries into this complaint are justified. He therefore closes the case.

149

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

P. Nikiforos DIAMANDOUROS ------------------------Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions - Towards a barrier-free Europe for people with disabilities; COM/2000/0284 final of 12/05/2000. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions - Equal opportunities for people with disabilities: A European Action Plan; COM/2003/0650 final of 30/10/2003.
(2) (1)

150

Decision of the European Ombudsman on complaint 127/2004/OV against the European Parliament

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 6 September 2005

Dear Mr X., On 5 January 2004, you made a complaint to the European Ombudsman concerning the calculation of your pension rights and the reimbursement of the surplus of transferred pension rights. On 6 February 2004, I forwarded the complaint to the President of Parliament. Parliament sent its opinion on 4 May 2004. I forwarded it to you with an invitation to make observations, which you sent on 15 June 2004. On 22 October, 13 December 2004 and 28 February 2005, you had telephone conversations with my office in which you were informed that the inquiry into your complaint was on-going. On 14 March 2005, I wrote to the President of Parliament with a request for further information. Parliament sent its second opinion on 2 May 2005. I forwarded it to you with an invitation to make observations, which you sent on 29 June 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The complaint is subdivided in two parts. According to the complainant, the relevant facts are as follows: I. By letter of 25 July 2002, which enclosed a decision of 24 July 2002, the Pensions Service of the European Parliament informed the complainant of the level of his invalidity pension rights. The level of pension was EUR 2 693.56, which corresponded to 64.55816 % of his latest salary in grade B 3, step 3. This amount was calculated on the basis of a double career (first career as a temporary agent and then official in grade C 2, step 3, and a second career as an official on secondment in grade B 3, step 3). The complainant argues that this calculation is wrong and does not
151

correspond to previous calculations communicated to him on the occasion of the transfer of his national pension rights, as well as on later occasions in 1996, 1998 and 2001. Those calculations produced a pension rate of above 70 % at 65 years, reduced to 70 % according to the Staff Regulations, on the basis of the complainant's latest salary, and never mentioned an apportionment of the calculation on the basis the periods as a temporary agent/official and as an official on secondment. The complainant observed that his whole career was entirely within the secretariat of the PSE political group. On 6 August and 16 October 2002, the complainant made an appeal, on the basis of Article 90.2 of the Staff Regulations, against the calculation of his invalidity pension. This appeal was rejected by decision of the Appointing Authority of 7 February 2003, which concluded that there had been no irregularity in the calculation of the complainant's pension rights. II. On the basis of the calculations provided by the Parliament's Pensions Service, the complainant decided to transfer his pension rights from Italy (in 1995) and from Germany (in 1997). This transfer should have provided him with a pension rate of above 70 %. However, the surplus above 70 % was cut. The complainant argues that Parliament should correctly advise its officials in such a complex matter. However, he feels he was wrongly informed by Parliament. On 30 May 2003, the complainant made an appeal on the basis of Article 90.2 of the Staff Regulations and requested that Parliament take into account all his transferred pension rights and reimburse the surplus above 70 %. The complainant referred to the judgement of the Court of First Instance of 10 November 1999 in the Kristensen case, according to which national pension rights that have been transferred to the Community scheme, but which could not be taken into account for the purposes of the latter, belonged to the civil servant and have to be reimbursed to the latter(1). The complainant's appeal was rejected on 1 October 2003 by the Appointing Authority which judged that the decision concerning the transfer of his pension rights was in conformity with the applicable regulation. The reply of the Appointing Authority informed the complainant that his Italian pension rights had never been transferred. The complainant however pointed out that Parliament itself confirmed this transfer in 1995 and made reference to it on 12 December 1996 in the framework of the calculation of the pension rights transferred from Germany. The Appointing Authority also informed the complainant that, after a comparison with the transfer decision of 1997, the determination of the complainant's pension rights showed a difference of 3 supplementary months which would, however, make no difference as the rate was already above 70 %. The complainant argues that, in reality however, he only received a pension fixed at 64.55816 %. On 5 January 2004, the complainant lodged the present complaint with the Ombudsman, making the following two claims: 1. The determination of his invalidity pension rights should be revised and the pension rate should be fixed at 70 % of his last B 3 salary.

152

2. The surplus of the complainant's pension rights transferred from Italy (1995) and from Germany (1997) should be reimbursed.

THE INQUIRY The Parliament's opinion In its opinion, Parliament made the following comments: The Appointing Authority, in the person of the Secretary-General, adopted two decisions on the complainant's two claims, namely on 7 February 2003 and on 1 October 2003. Parliament's observations are therefore subdivided into two sections: I) The Secretary General's decision of 7 February 2003 a) Factual background The complainant entered into the service of the European Parliament as a temporary agent, in grade C 3, step 3, on 1 November 1990. After succeeding in a competition, he was appointed as an official on probation in grade C 4, step 3, on 1 March 1994, and as a permanent official on 1 September 1994. On 1 September 1994, he was seconded to a political group in grade C 2, step 2, and classified in grade B 4, step 4, on 1 May 1999, and later in grade B 3, step 3, on 1 June 2001. The complainant has thus followed two careers: one as a category C official and one as an official on secondment in a political group in the B category. He benefited from promotions and advancements to higher steps in these two careers. b) Legal framework The following provisions are relevant in examining the complainant's dossier: Article 77, paragraphs 2 and 3, of the Staff Regulations: "The maximum retirement pension shall be 70% of the final basic salary carried by the last Grade in which the official was classified for at least one year. It shall be payable to an official who has completed 35 years' service reckoned in accordance with Article 3 of Annex VIII. Where the number of years of service is less than 35, the above maximum shall be reduced proportionately. However, in the case of officials who have been assisting (...) one of the political groups in the European Parliament, the entitlement to pensions corresponding to the years of pensionable service acquired while working in that capacity shall be calculated by reference to the final basic salary received

153

during that time if the basic salary received exceeds that taken as reference for purposes of the second paragraph of this Article". Article 78, paragraph 3 of the Staff Regulations: "Where the invalidity is due to some other cause, the invalidity pension shall be equal to the retirement pension to which the official would have been entitled at the age of 65 years if he had remained in the service until that age". c) The determination of the complainant's pension rights The complainant's pension rights were established as follows: By virtue of Article 78, paragraph 3, of the Staff Regulations, the invalidity pension is equal to the retirement pension to which the complainant would have been entitled at the age of 65 years if he had remained in the service until that age. In the complainant's case, the pension rate was 72.5 % and therefore surpassed the threshold foreseen by Article 77, paragraph 2. This is the reason why the pension rate was limited to 70 % as indicated in annex I of the decision of 24 July 2002 on the complainant's invalidity pension rights. The pension rate was the maximum rate foreseen in Article 77 and has been correctly established. On the basis of the fact that the complainant benefited from a double career, Parliament had to apportion the pension rate: One part of the pension had to be calculated on the basis of the basic salary of the grade B 3, step 3 (career as an official on secondment) and another part on the basis of the basic salary of the grade C 2, step 3 (normal career as an official). More specifically, the complainant first worked 3 years and 10 months as a temporary agent and then as an official, and afterwards still 7 years and 11 months as an official on secondment to a political group. These two periods should be clearly distinguished on the basis of Article 77, paragraphs 2 and 3, of the Staff Regulations: In accordance with Article 77, paragraph 3, of the Staff Regulations, the calculation of the pension rights must be based on the final basic salary received as an official on secondment. Consequently, the appropriate grade for the calculation of the complainant's pension rights, for this period, was the grade B 3, step 3. On the contrary, the pension rights for the period before his secondment to the political group, should logically be calculated on the basis of category C. The calculation of the pension rights concerning this period must be based on the final basic salary relating to the final grade under which the official was classified for at least one year. As the complainant was classified in grade C 4, step 3 for 6 months only, the calculation was made on the basis of C 2, step 3, which was the grade of the

154

complainant within the political group, when he was appointed as an official of probation in grade C 4, step 3, on 1 March 1994. For establishing the pension rights, the Pensions Service must therefore separate the pension rights pro rata temporis, for the periods of the career as a category C official and as an official on secondment in category B, in accordance with the provisions of Article 77, paragraph 3 of the Staff Regulations, which explicitly refer "to the years of pensionable service acquired while working in that capacity", i.e., the years of pensionable service that the official on secondment acquired during the secondment. According to the information in the complainant's file, the calculation of his pension rights was thus made as follows: for the career as an official: on the basis of grade C 2, step 3, for a period of 3 years and 10 months (from 1.11.90 to 31.8.94), which represents 32.62411 % of the period of his career. for the career as an official on secondment: on the basis of grade B 3, step 3 (i.e., the final basic salary received in the exercise of this function) for a period of 7 years and 11 months (from 1.9.84 to 31.7.02), which represents 67.37589 % of the period of his career. The final pension was fixed by multiplying the maximum pension rate of 70 % with the rate established above in function of the period of services in each career. 70 x 0.3262411 = 22.83688 % of the basic salary in grade C 2, step 3 70 x 0.6737589 = 47.16312 % of the basic salary in grade B 3, step 3 The calculation was thus as follows: (0.4716312 x basic salary B 3, step 3) + (0.2283688 x basic salary C 2, step 3) Basic salary B 3, step 3 which, in numbers, corresponds to the following: (0.4716312 x 4 172.30) + (0.2283688 x 3 178.06) 4 172.30 namely 64.55816 % of the basic salary in grade B 3, step 3. The basic pension of the complainant was thus, at the moment of going into invalidity: EUR 4 172.30 x 0.6455816 = EUR 2 693.56.

155

d) The transfer of the complainant's German pension rights The transfer of pension rights is governed by Article 11 of Annex VIII of the Staff Regulations. The official has a reflection period of 6 months after his appointment to decide to present a request for transfer. When such a request is presented, the Pensions Service addresses to the official in question a transfer proposal after having made the calculations. Only at this moment can the official decide whether the transfer has an interest for him or her. The decision of the complainant of 20 January 1997 was thus the result of his free choice. The documents which were transmitted to the complainant concerning the pension rate reached in case of a transfer of his German pension rights do not contain irregularities, as it was made clear that they were limited to information on the pension rate without ever mentioning the grade B. These documents were in fact based on the grade C 4, step 3, which was the grade of the complainant as an official. The Court of Justice, in its judgement of 20 March 1986 in case 8/85(2), held that, for an official who demands the transfer of his national pension rights to the Community scheme, it is the grade of establishment, i.e., the grade to which he is appointed on the date on which he is established, that must be taken into account for the calculation of the additional seniority. If the calculations of the additional seniority due to the transfer of pension rights had been made on the basis of a higher grade, the complainant would have obtained fewer years of pensionable service (for instance a calculation made on the basis of a salary of grade C 2, step 3, in the month of July 1996). Once the decision on the transfer of pension rights is accepted and the transfer executed, the situation becomes definitive. In case of disagreement, the complainant should have appealed to the Appointing Authority within the deadline foreseen in Article 90, paragraph 2, of the Staff Regulations. An official cannot demand the transfer of his pension rights or the annulment of it on the grounds of subsequent developments in his career or administrative status. e) Conclusions concerning the decision of 7 February 2003 On the basis of the above considerations, the Secretary General concluded, in his decision of 7 February 2003, that: a) the complainant's pension rights had been correctly established; b) his request to re-transfer eventually his pension rights to Germany was legally unfounded.

156

II) The Secretary General's decision of 1 October 2003 a) Factual background Following receipt of the above decision of the Secretary General of 7 February 2003, the complainant, by letter of 30 May 2003, requested the Appointing Authority to verify if all his pension rights obtained before his entry into service in the European Parliament had been transferred in 1997. The complainant was worried, as the total period of his pension rights acquired before his entry into service of the Communities was 27 years, 4 months and 2 days, whereas, according to the decision fixing his pension rights, this period was only 14 years, 2 months and 28 days. In his letter of 30 May 2003, the complainant thus raised the question whether Parliament had taken into consideration his pension rights acquired in Italy. b) Observations on the admissibility of the claim In his decision of 1 October 2003, the Secretary General first pointed out that the claim of 30 May 2003 was inadmissible, because it was introduced after the deadline foreseen in Article 90, paragraph 2, of the Staff Regulations. The complaint is directed against the transfer of his national pension rights, which took place on 20 January 1997. The Appointing Authority however decided to reply to the substance of the complainant's claim. c) Verification and Evaluation Contrary to what he claims, the complainant has not transferred pension rights from Italy. Although he possesses a certificate from the Italian authorities, in accordance with Regulations 1408/71 and 574/72, which confirms the period during which he was covered by the Italian legislation, this certificate does not entitle him to pension rights under the Staff Regulations. The complainant should therefore address the competent authorities in his place of residence so that they can take into consideration the period during which he was insured under the Italian legislation for the determination of his eventual pension rights, in conformity with the legislation in force in Italy. It appears from the decision on the transfer of his pension rights of 12 December 1996, signed by the complainant on 20 January 1997, that the period concerned amounted to 13 years, 11 months, and 12 days. However, the decision of 24 July 2002 fixing the complainant's pension rights mentions 14 years, 2 months and 28 days. This difference of three months is explained by the fact that the amount transferred was slightly superior to the one initially communicated by the German Pension Fund ("Bundesversicherungsanstalt fr Angestellte"). The European Parliament was informed, by letter of 17 July 1996, that the amount transferred was DM 229 077.62, whereas the amount actually transferred, nearly one year later, was DM 234 882.04. The Pensions Service then made an update which shows that the pension rights of the

157

complainant were indeed calculated on the basis of the amount actually transferred. The complainant does not of course object to this difference, which is in his favour. It is important to point out that the calculation of transferred pension rights is not based on the duration of the activity before the entry into the service of the Communities, but on the amount transferred. This is foreseen in Article 11.2 of Annex VIII of the Staff Regulations which provides that: "An official who enters the service of the Communities after: - leaving the service of a government administration or of a national or international organisation; or - pursuing an activity in an employed or self-employed capacity shall be entitled upon establishment to have paid to the Communities either the actuarial equivalent or the flat-rate redemption value of retirement pension rights acquired by virtue of such service or activities. In such case the institution in which the official serves shall, taking into account his grade on establishment, determine the number of years of pensionable service with which he shall be credited under its own pension scheme in respect of the former period of service, on the basis of the amount of the actuarial equivalent or sums repaid as aforesaid." After having examined the decision of the Pensions Service concerning the complainant, it appears that no irregularity or error was made. The amount transferred, DM 234 882.04, was taken into consideration in the determination of the complainant's pension rights. A difference of three months has indeed been noticed, but has no incidence whatsoever on the amount of the pension, as the rate already exceeded the maximum of 70 %. The complainant's pension rights have thus been correctly determined. As regards the claim for the reimbursement of the surplus of years of pensionable service, the whole amount transferred from the national pension fund (the "Bundesversicherungsanstalt fr Angestellte") has been transformed into pension rights according to Article 11 of Annex VIII of the Staff Regulations. Therefore, there exists no surplus amount which needs to be reimbursed to the complainant. Parliament finally underlined that the administrative situation of the complainant was fundamentally different from the situation in the Kristensen case. The complainant's observations The complainant again subdivided his comments into two parts:

158

I) The Secretary General's decision of 7 February 2003 The complainant observed that Parliament's opinion merely repeated previous positions without examining in depth the factual background. The complainant made the following list with the exact dates concerning his parallel careers as a temporary agent, official on secondment and official: As from: 01.11.1990 01.06.1993 01.03.1994 01.09.1994 01.06.1997 01.05.1999 01.09.1999 01.03.2001 Grade as temporary agent C3 C2 Grade as official on secondment Grade as official

C2 C1 B4 B4 B3

C4 (probation) C4 C4 C4 C3/4 C3/5

The complainant points out that he spent his whole career within the PSE political group, which engaged him, as a temporary agent in grade C 3 further to a competition of the group. He was promoted in the group to grade C 2 and later to grade C 1 before succeeding in January 1997 in an internal competition of the group, further to which he was classified in May 1999 in grade B 4 and later promoted to grade B 3. Following a Commission competition, Parliament's administration engaged him as an official in grade C 4 and promoted him to grade C 3. The complainant was never an official in grade C 1. In view of the fact that the complainant's career as an official in Parliament was thus limited to grades C 4 and C 3, it is incorrect for Parliament to state that his career was subdivided in category C as an official and in category B as an official on secondment. The complainant based his decision to transfer his German pension rights not only on Parliament's calculations of the sum to be transferred, but above all on the rate of 70 % of the last salary. Parliament's calculations enclosed with its opinion on the complaint do not correspond exactly to those which the complainant has received and which never mentioned an apportionment of the career. The first calculation by the Pensions Service dates from 12 October 1995, on the occasion of the transfer of the complainant's Italian pension rights. The next calculations date from 29 January 1998. The Pensions Service's calculation of 17 January 2002 took into account the complainant's last grade B 3, step 3.

159

However, when the complainant finally went on invalidity pension, the administration came up with a different interpretation of the Staff Regulations according to which an apportionment should be made between the two careers as an official and as an official on secondment. The complainant wonders why - if this interpretation is correct - this apportionment had never been employed before in any of the calculations received all over the years. The complainant observes that the determination of his pension rights came as a shock to him, as the difference of 5.44184 % in the rate of pension corresponds to a loss of EUR 252.09 in gross pension per month. The complainant points out that Article 78, paragraph 4, of the Staff Regulations provides that "[t]he invalidity pension shall be calculated by reference to the basic salary which the official would have received in his grade if he had still been in the service at the time of payment of the pension." II) The Secretary-General's Decision of 1 October 2003 As regards Parliament's statement that the complainant never transferred his Italian pension rights, the complainant points that he had taken the decision to transfer his Italian pension rights on 18 October 1995, on the basis of a calculation by Parliament of 12 October 1995, which resulted in a period of 3 months and 16 days, namely 37.08334 % without transfer, and 38.125 % with the transfer. Parliament mentioned this transfer also in an internal note, in its letter of 12 December 1996 and even in the decision of 24 July 2002 containing the final determination of the complainant's invalidity pension rights. Following Parliament's statement that his Italian pension rights had never been transferred, the complainant contacted the Istituto Nazionale della Previdenza Sociale ("INPS") in Milan. The INPS replied by letter of 18 February 2004 that, because of an error, these rights had not been transferred at the time, but that this had been corrected by transferring the amount in question in December 2003. Parliament however never reacted to point out to the complainant that the transfer by the INPS had not been carried out. In its opinion, Parliament pointed out a difference between the period acknowledged on 20 January 1997 (13 years, 11 months and 12 days) and the period acknowledged on 24 July 2002 (14 years, 2 months and 28 days). According to the complainant, this is exactly the difference which results from the transfer of his Italian pension rights, namely 3 months and 16 days, and does not concern the German pension rights. III) Conclusions Parliament refers to a fictitious separation between the career as an official in category C and as an official on secondment in category B. As an official, the complainant has

160

only been in the grades C 4 and C 3. All the calculations made by the Pensions Service always mentioned the grades in the political group, namely C 2, C 1, and B 3. As for the reimbursement of the surplus amount, the complainant observed that Parliament vaguely stated that his administrative situation was different from that in the Kristensen case, without explaining why exactly. The complainant claims that the administration should recognise its own calculations on which the complainant relied for the transfer of his pension rights and also for the planning of his retirement. Parliament should grant the complainant a pension at the rate of 70 % of his basic salary in his final grade B 3, step 3.

FURTHER INQUIRIES After careful consideration of Parliament's opinion and the complainant's observations, the Ombudsman considered that further inquiries were necessary. He therefore wrote to Parliament on 13 March 2005 pointing out that some elements concerning the calculation of the complainant's invalidity pension and the transfer of his German and Italian pension rights needed clarification: Firstly, in its decision of 24 July 2002, the Pensions Service concluded, in a calculation based on the amount of DM 234 882.04 that was transferred by the German "Bundersversicherungsanstalt fr Angestellte", that 14 years, 2 months and 28 days of pensionable service were transferred by the complainant from Germany. In his letter of 30 May 2003 to Mr Priestley, however, the complainant pointed out that he had accumulated 27 years, 4 months and 2 days of years of pensionable service in Germany and Italy and asked that the surplus be reimbursed. On the basis of his career in the EP and his transferred pension rights, the Pensions Service calculated in its decision of 24 July 2002 a pension rate of 72.5 % which was reduced to 70 % according to Article 77.2 of the Staff Regulations. Secondly, Parliament maintains in its opinion that no pension rights from Italy have been transferred. However, the decision of the EP Pensions Service of 24 July 2002 twice mentions "Rachat de droits pension Art. 11,2 DE/IT". Also, the file contains a note from the Pensions Service of 21 August 1995, signed by the complainant on 18 October 1995 and by Parliament's Financial Controller on 20 August 1995, according to which the number of years of pensionable service transferred from Italy (on the basis of the amount of ITL 2 588 750.00) amounts to 3 months and 16 days. The complainant also annexed to his observations a letter from the Italian Istituto Nazionale della Previdenza Sociale (INPS) according to which his Italian pension rights had finally been transferred in the month of December 2003. On the basis of the above analysis, the Ombudsman asked Parliament to:

161

1. clarify a) how the Pensions Service calculated 14 years, 2 months and 28 days of pensionable service from transferred pension rights whereas the complainant claims to have accumulated 27 years, 4 months and 2 days of years of pensionable service, and b) why it does not consider it necessary to reimburse to the complainant part of the transferred pension rights, given that the complainant's pension rate - which was calculated on the basis of both his career within the EP and his transferred pension rights - was reduced from 72.5 % to 70 %; and 2. clarify the situation pointed out above concerning the transfer of Italian pension rights. The Ombudsman suggested in this context that it could be useful for Parliament to contact the Italian INPS to find out the amount of the transferred pension rights and the mode of payment and bank account details. Parliament's second opinion In its second opinion, Parliament made the following observations: Parliament confirmed that the complainant transferred from the Italian INPS pension rights for an amount of 2 588 750 ITL which have been credited to the account of the European Parliament. This capital allowed him to obtain, since 1995, a bonification of 3 months and 16 days which has been taken into account to determine the total amount of transferred pension rights at 14 years, 2 months and 28 days considering the 13 years, 11 months and 12 days of pension rights transferred from the German Bundesversicherungsanstalt fr Angestellte (BfA). However, after noticing errors in the level of transfers, the Pensions Service recalculated the amount of the pension, with 13 years, 9 months and 22 days of pension rights transferred from the BfA and 4 months, 22 days from the INPS which gave together 14 years, 2 months and 3 days. The correction of the errors gave a significantly more favourable result for the complainant whose pension is now EUR 3 084.11. The errors came from a wrong calculation of the double career by the computer system. The transformation of 27 years, 4 months and 2 days into a transfer of only 13 years, 9 months and 22 days in the Community scheme is explained by the fact that the transfer does not concern the years, but the capital. This capital is translated into years on the basis of the basic salary according to the grade and the exchange rate. The rule concerning transfers is that the surplus obtained further to transferred pension rights may not be higher than the number of years worked in the national system from which the transfer takes place. In case the years transferred are higher than the number of years actually worked, there is a limitation and the surplus capital is reimbursed to the official in application

162

of the Kristensen judgement. However, for the complainant there was no sum to be reimbursed as there was no surplus capital due to the limitation of the years. The fact that the complainant obtained a pension rate of 72.5 % does not allow a restitution either, as the pension paid is limited to 70 %. If the complainant had not gone into invalidity, he could have obtained the maximum pension rights before the age of 65. Parliament finally observed that it was necessary to distinguish between the complainant's career as an official further to a competition and his career as an agent in the PSE group. The complainant has not acceded to the B grade in his career as an official. He obtained that grade within the PSE group, further to a selection procedure organised by the political group. This grade cannot have an impact on his career as an official. The complainant's situation could have been more favourable if he had not become an official, because in that case, his pension would not have been divided pro rata temporis of the periods worked in the Secretariat General of Parliament and in the political group, and would have been calculated only on the basis of the last grade obtained in the group. The complainant will receive a regularisation of his pension for the period in question. The complainant's second observations The complainant observed that Parliament now confirmed that the transfer from the Italian INPS had indeed taken place, probably in 1995. The complainant accepts Parliament's explanation concerning the non reimbursement of the surplus amount, but regrets that this explanation was only provided when the Ombudsman asked for it and not when the complainant made an appeal. The complainant has now received a new calculation of his pension rights which replaces and annuls the one of 24 July 2002. With the new calculation, the complainant obtains 68.927 % of the monthly basic pension, instead of 64.55816 % previously. This still does not correspond to the 70 %, but the complainant stated that he will accept it and renounce the outstanding 1.073 %. The complainant finally wanted to thank the Ombudsman for his intervention without which nothing would have happened. He observed that the Ombudsman gave him back the confidence that he lost when he saw how the administration treats the staff.

163

THE DECISION 1. The calculation of the complainant's invalidity pension 1.1 The complainant claims that the determination of his invalidity pension rights should be revised and that the pension rate should be fixed at 70 %, by taking his last B 3 salary exclusively as reference. The complainant argues that the final calculation communicated to him on 25 July 2002 by the Pensions Service did not correspond to previous calculations communicated to him on the occasion of the transfer of his national pension rights, as well as on later occasions in 1996, 1998 and 2001. Those calculations determined a pension rate of above 70 % at 65 years, reduced to 70 % according to the Staff Regulations, on the basis of the complainant's latest salary, and never mentioned apportionment of the calculation for the periods as a temporary agent/official (in grade C) and as an official on secondment (in grade B). 1.2 In its opinion, Parliament explained in detail how the complainant's pension rights had been calculated "pro rata temporis" on the basis of his double career, namely partially on the basis of his career as a temporary agent and as an official (in category C) and partially on the basis of his career as an official on secondment (in category B). Parliament pointed out that this apportionment of the calculation was based on the provisions of Article 77, paragraph 3, of the Staff Regulations. Parliament also explained in detail how the German pension rights had been transferred in accordance with Article 11.2 of Annex VIII of the Staff Regulations. 1.3 In response to the Ombudsman's further inquiries, Parliament observed that, after noticing errors in the level of transfers, the Pensions Service recalculated the complainant's pension, and the new calculation gave 13 years, 9 months and 22 days of pension rights transferred from the German BfA and 4 months, 22 days of pension rights from the Italian INPS which gave together 14 years, 2 months and 3 days. The correction of the errors gave a significantly more favourable result for the complainant whose pension is now EUR 3 084.11. The errors came from an incorrect analysis of the double career by the computer system. Parliament pointed out that the complainant would receive a regularisation of his pension for the period in question. Parliament also explained that the transformation of 27 years, 4 months and 2 days of service in the national schemes into a transfer of only 13 years, 9 months and 22 days in the Community scheme is explained by the fact that the transfer does not concern the years, but a capital sum, which is translated into years on the basis of the basic salary, according to the grade and the exchange rate. 1.4 On the basis of the above, the Ombudsman comes to the following findings: It appears from Parliament's second opinion that, further to the Ombudsman's request for additional clarification, Parliament has regularised the complainant's pension situation. From the documents sent by the complainant together with his second observations it appears that, on 10 May 2005, Parliament's Pensions Service sent a letter to the complainant informing him that, after looking again at his file, it had

164

discovered errors - due to the calculation made by the computer system - in the determination of his invalidity pension rights, and consequently recalculated his pension which amounts now to EUR 3084.26(3). In this letter, the Head of Unit of the Pensions Service apologised personally for the error which the complaint had allowed to be discovered in the calculations. A new calculation of the complainant's pension, on the basis of pension rights transferred from both the German and Italian pension schemes, was annexed to the letter. 1.5 In his observations, the complainant observed that he will accept the new calculation and renounce the outstanding 1.073 %. The complainant also thanked the Ombudsman for his intervention. 1.6 On the basis of the above, it appears that Parliament has taken steps to settle the matter to the complainant's satisfaction. 2. The claim for the reimbursement of the surplus of transferred pension rights 2.1 The complainant claims that the surplus of his pension rights transferred from Italy (1995) and from Germany (1997) should be reimbursed. In this context, the complainant referred to the judgement of the Court of First Instance in the Kristensen case, according to which national pension rights that have been transferred to the Community scheme, but which could not be taken into account for the purposes of the latter, belonged to the civil servant and have to be reimbursed to the latter(4). 2.2 Parliament observed that the whole amount transferred from the German "Bundesversicherungsanstalt fr Angestellte" has been transformed into pension rights according to Article 11 of Annex VIII of the Staff Regulations and that, therefore, there exists no surplus amount which needs to be reimbursed to the complainant. Parliament's also underlined that the administrative situation of the complainant was fundamentally different from the situation in the Kristensen case. 2.3 In its second opinion, Parliament clarified that, if the years transferred are higher than the number of years actually worked, there is a limitation and the surplus capital is reimbursed to the official in application of the Kristensen judgement. However, for the complainant there was no sum to be reimbursed as there was no surplus capital due to limitation of the years. Parliament also pointed out that the fact that the complainant obtained a pension rate of 72.5 % does not allow a restitution either, as the pension paid is limited to 70 %. For the complainant, there was no sum to be reimbursed as there was no surplus capital due to the limitation of years. 2.4 In his observations, the complainant accepted Parliament's explanation concerning the non-reimbursement of the surplus amount, but regretted that this explanation was only provided when the Ombudsman asked for it and not when the complainant made an appeal.

165

2.5 Given that the complainant has accepted Parliament's explanation concerning the non-reimbursement of the surplus amount, the Ombudsman considers that no further inquiries are justified into this part of the complaint. 2.6 The Ombudsman notes that, subsequent to its second opinion on the present complaint, the European Parliament issued a communication to staff on 20 June 2005 concerning reimbursement of surpluses resulting from pension transfers. The Ombudsman considers it useful to forward a copy of this communication to the complainant for information. 3. Conclusion It appears from Parliaments comments and the complainant's observations that Parliament has taken steps to settle the matter and has thereby satisfied the complainant. The Ombudsman therefore closes the case. The President of Parliament will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Joined Cases T-103/98, T-104/98, T-107/98, T-113/98 and T-118/98, Kristensen and others v Council, [1999]ECR SC I-A-215, II-111.
(2) (1)

Case 8/85, Bevere v. Commission, [1986] ECR 1187.

This is the amount mentioned in the Annexe 1 of the Pensions' Service note of 28 April 2005 "Avis de fixation des droits une pension d'invalidit" which was communicated to the complainant by letter of 10 May 2005. Joined Cases T-103/98, T-104/98, T-107/98, T-113/98 and T-118/98, Kristensen and others v Coucil, [1999] ECR SC I-A-215, II-111.
(4)

(3)

166

Decision of the European Ombudsman on complaint 140/2004/(BB)PB against the European Anti-Fraud Office

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 6 June 2005

Dear Mr X., On 7 January 2004, you made a complaint to the European Ombudsman concerning an investigation by the European Anti-Fraud Office (OLAF) into possibly illegal activities within the Office for Official Publications of the European Communities ('OPOCE'). On 11 February 2004, I forwarded the complaint to the Director-General of OLAF. OLAF sent its opinion on 7 April 2004. I forwarded it to you with an invitation to make observations, which you sent on 20 June 2004. On 21 October 2004, I informed you that I had decided to conduct further inquiries. On 30 November 2004, OLAF replied to my further inquiries, and I forwarded its reply to you for observations. You sent me your observations on 16 December 2004. On [ date ] 2005, the Official Journal reported that you had brought an action against the European Commission before the Court of First Instance. Your action before the Court of First Instance appeared to relate to one of the allegations that I had taken up for inquiry in the present case. I therefore wrote to you on 9 March 2005 to give you the opportunity to submit your views as to the possible significance of Articles 1(3) and 2(7) of the Ombudsman's Statute(1) for your case. You replied on 11 March 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The complainant was an official who had worked for the Office for Official Publications of the European Communities ('OPOCE'), the European Union's publications office. He complained against the European Anti-Fraud Office ('OLAF') in respect of OLAF's handling of information that he had submitted to it about suspected illegalities at OPOCE.

167

The complainant stated that during his employment at OPOCE, he had been given reason to believe that his superiors at OPOCE had handled a contract contrary to the interests of the Communities. On 31 July 2002, he provided this information by email to the Director-General of OLAF. OLAF confirmed receipt of this information and initiated an official investigation on 13 November 2002. The complaint to the Ombudsman related to provisions in the Commission's decision C(2002) 845 of 4 April 2002. This decision laid down the rights and duties in respect of officials intending to report on suspected wrongdoings in the Commission (popularly known as 'whistleblowers') (2). The disputed provision of this decision was Article 2, which provided as follows: "1. An official or servant who further discloses information as defined in Article 1 outside the Commission or the European Anti-Fraud Office shall not as a result suffer any adverse consequences from the Commission alone provided that all the following conditions are met: a) The official or servant honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; b) the official or servant has previously disclosed the same information to the European Anti-Fraud Office or to the Commission and has allowed a reasonable period of time for the Office or the Commission to take appropriate action; and c) the disclosure is made to the President of the Court of Auditors or of the Council of the European Union or of the European Parliament; or the European Ombudsman. 2. For the purpose of subparagraph (1)(b), and subject to paragraph (3), a reasonable period shall be the period which the Office or the Commission, as the case may be, has indicated as being necessary to carry out the investigations and, where necessary, take appropriate action. The official or servant shall be duly informed. 3. Paragraph (2) shall not apply where the official or servant can demonstrate that the period or periods indicated by the Office or the Commission is or are unreasonable having regard to all the circumstances of the case." Referring to Article 2(2) quoted above, the complainant stated that no 'reasonable period' had been indicated to him by OLAF. He considered this to be a breach of that article.

168

The complainant furthermore considered that OLAF had not conducted its inquiry quickly enough. He stated that following the opening of OLAF's inquiry on 13 November 2002, he was interviewed by the Director-General of OLAF on 15 September 2003. According to the complainant, the Director-General informed him that he would receive information on the case within a short period of time. Not having received any further information, the complainant asked to be informed about either a final conclusion on OLAF's inquiry or a fixed date planned for its conclusion. He asked for the information by 2 January 2004. Not having received any response to this request, the complainant submitted his complaint to the Ombudsman. Thus, the complainant alleged undue delay by OLAF in the handling of information disclosed under Commission Decision C (2002) 845 of 4 April 2002 regarding investigation OF/[reference number]. Furthermore, he alleged lack of information regarding the reasonable period necessary to carry out the investigations in accordance with Article 2(2) of the above-mentioned Commission Decision.

THE INQUIRY OLAF's opinion The complaint was submitted to OLAF for an opinion. In its opinion, OLAF made the following comments: With regard to the complainant's first allegation of delay, OLAF noted that its legal framework did not specify the period within which an investigation must be completed. It considered that the matter had been handled within a reasonable period of time, in particular in the light of OLAF's caseload during the relevant period. It gave the following account of its actions following the complainant's submission of his information on OPOCE: An internal investigation was opened on 18 October 2002; the complainant was interviewed on 13 November 2002, and relevant documentation was collected in December 2002; between October 2002 and December 2003, the matter was reassigned twice - the first time because a decision was taken to open an internal investigation, which had required the replacement of the evaluator by an investigator from the internal investigation team, and the second time because the investigator in charge was re-assigned to the "Eurostat Task Force", necessitating the reassignment of his cases. In December 2003, the investigator then in charge of the case prepared a final case report in which he recommended that the investigation be closed without follow-up. On 17 December 2003, the investigator telephoned the complainant to inform him of the provisional conclusions. During the conversation, the complainant made further allegations against his superiors at OPOCE, as a result of which the investigator made

169

further inquiries and an assessment of the evidence which had been gathered. On 28 January 2004, the investigator again telephoned the complainant to inform him that the further investigation was complete, and that the recommendation to close the case without follow-up remained unchanged. On 5 February 2004, the case was closed without follow-up. The complainant was formally notified of this on 16 February 2004. Accordingly, the total period that lapsed between the opening and closing of the investigation was approximately 15 months. Following this account, OLAF stated that it has a very wide discretion regarding the way in which it deals with investigations, and repeated that it is under no obligation to complete any particular investigation within a specified period of time. In exercising its discretion, it takes into account the priority of any given investigation in comparison with the other investigations being made, and resources are allocated accordingly. The delay of several months resulting from the reassignment of the case could not be considered unreasonable under the circumstances. With regard to the complainant's second allegation, OLAF referred to Article 2 of the Commission decision quoted above, stating that "[i]n the present case, Article 2 is not at issue, because the complainant does not allege that he has suffered any adverse consequences for having disclosed the information outside the Commission or OLAF". OLAF also stated that even if Article 2 were applicable, its requirements had been fully satisfied in this case, stating that "[f]rom the opening of the investigation until 31 July 2003, the complainant never indicated that he believed that a reasonable period had passed since he first provided the information to OLAF and that he was contemplating disclosing the information outside the Commission or OLAF [...]". The complainant's observations OLAF's opinion was submitted to the complainant for observations. In his observations, the complainant maintained his allegations and made the following additional comments: With regard to his first allegation concerning delay, the complainant conceded that there are no specific statutory deadlines for the conclusion of inquiries. However, he referred to Article 11(7) of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(3), which provides that "[w]here an investigation has been in progress for more than nine months, the Director shall inform the Supervisory Committee of the reasons for which it has not yet been possible to wind up the investigation, and of the expected time for completion." The complainant referred to the annual report of the OLAF Supervisory Committee, published in 2001 (i.e. preceding the OLAF investigation based on the complainant's

170

submissions), which noted problems related to delays in the inquiry and stated that the nine month period referred to in Article 11(7) should, in respect of internal investigations, "[i]n future ... be respected as a matter of principle [...]". The complainant also addressed the question of priority. He put forward, in summary, that OLAF had failed to respect the criteria for the setting of priorities. He referred to OLAF's Manual that came into force in January 2003, which contains such criteria. According to the complainant, it could be assumed that similar criteria should have applied already before the Manual came into force. With regard to the second allegation (failure to inform about length of inquiry), the complainant put forward that OLAF had misinterpreted Article 2 of Commission Decision C(2002)845. The complainant put forward that Article 2 should logically be interpreted to establish a duty on OLAF to inform the official concerned of the length of time that OLAF expected an inquiry to last. He considered that the duty contained in Article 2 was in no sense bound to the condition that the official concerned had himself or herself requested OLAF to provide the information, nor that the official concerned had already suffered negative consequences. The complainant put forward that his interpretation was supported by Article 22b of the new Staff Regulations that came into force after the Commission decision here concerned. That article provides as follows (emphasis added): Article 22b 1. An official who further discloses information as defined in Article 22a to the President of the Commission or of the Court of Auditors or of the Council or of the European Parliament, or to the European Ombudsman, shall not suffer any prejudicial effects on the part of the institution to which he belongs provided that both of the following conditions are met: (a) the official honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and (b) the official has previously disclosed the same information to OLAF or to his own institution and has allowed the OLAF or that institution the period of time set by the Office or the institution, given the complexity of the case, to take appropriate action. The official shall be duly informed of that period of time within 60 days. The complainant considered that the provision here emphasised merely set out in more precise terms a duty that was inherent in Article 2 of Commission Decision C/2002)845. In his observations, the complainant also noted that he had made remarks in his complaint concerning the adequacy of OLAF's investigation. He submitted to the

171

Ombudsman that this issue could be taken up for inquiry within the present inquiry. He claimed that OLAF should reopen its investigation. Further inquiries After careful consideration of OLAF's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman's request to OLAF The Ombudsman requested OLAF to provide supplementary information on the following: In respect of the first allegation, the complainant argues that OLAF has failed to respect guidelines set out by OLAF's Supervisory Committee and failed to respect relevant criteria for the setting of priorities. In respect of the second allegation, the complainant argues that the new Staff Regulations have merely spelt out in more precise terms a duty that was inherent in Article 2 of Commission Decision C/2002)845. The Ombudsman furthermore requested OLAF to provide a supplementary opinion in which it addressed the complainant's allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, as well as the complainant's claim that OLAF should reopen the inquiry. OLAF's response to the further inquiries In its reply to the Ombudsman's further inquiries, OLAF noted that its Supervisory Committee has no legal power to set deadlines for the completion of investigations. It therefore rejected the view that it had failed to respect guidelines set out by the Committee. With regard to the setting of priorities, OLAF stated that the complainant was not in a position to judge whether OLAF correctly exercised its discretion as regards the investigation here concerned in the light of the hundreds of other cases that OLAF dealt with at the time. It stated that "[e]ven if he had such knowledge, the exercise of OLAF's discretion does not fall within the concept of maladministration and therefore is not properly the subject of review by the Ombudsman". With regard to the second allegation, OLAF stated, in summary, that Article 22b of the amended Staff Regulations was irrelevant for the interpretation of Article 2 of Commission Decision C(2002) 845. With regard to the complainant's allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by

172

OLAF, as well as the complainant's claim that OLAF should reopen the inquiry, OLAF considered that this aspect of the complaint was not within the Ombudsman's competence to review. Referring to the Ombudsman's legal bases, it made the following comments: "... 'maladministration' refers to the form and procedure in which an administrative decision was taken, and not to its substance. The Ombudsman is therefore competent to review whether OLAF's investigative procedure was correct, fair, and in compliance with all applicable procedural guarantees. In contrast, OLAF's exercise of its discretion and its judgment on substantive matters such as those raised by the complainant fall outside of the review standard of maladministration. The Ombudsman could engage in such substantive scrutiny only in exceptional cases, where the content of an OLAF decision is manifestly arbitrary, abusive or 'ultra vires'. Here, however, no such allegation is made. Rather, the allegations relate to deficiencies, as perceived by the complainant, in the quality of the Final Case Report, whether further investigation activities should have been undertaken, whether different legal norms should have been considered, whether OLAF's decisions to close the case and that no follow-up was necessary were justified, and a host of other, more general questions. Such matters all concern the substance of OLAF's decisions on this matter, and [are] therefore outside the scope of 'maladministration'". The complainant's observations OLAF's reply to the Ombudsman's further inquiries was sent to the complainant, who maintained his complaint. Court action by the complainant On [date] 2005, the Official Journal reported that the complainant had brought an action against the European Commission before the Court of First Instance. The complainant was reported to claim (a) that the Court should annul the decision of 5 February 2004 to close the OLAF investigation OF/[reference number] and the final case report on which that decision was based, and (b) that the Court should order the Commission to reopen the investigation. Thus, the complainant's action before the Court of First Instance appeared to relate to the new allegation included in the inquiry through the Ombudsman's further inquiries (concerning the adequacy of OLAF's investigation). The Ombudsman therefore wrote to the complainant on 9 March 2005 to give him the opportunity to submit his views as to the possible significance of Articles 1(3) and 2(7) of the Ombudsman's Statute(4) for his case. The complainant replied on 11 March 2005. He proposed that the Ombudsman should continue his inquiry into all the allegations and his claim. As regards the allegation and the claim taken up in the Ombudsman's further inquiries, the complainant stated that "there is a connection" to his case before the Court. However, he put forward two

173

main arguments in view of which the Ombudsman should continue the inquiry into that allegation and claim: (i) the Court had not yet decided on the admissibility of his case, and there was therefore no court decision with which the Ombudsman's review could interfere; (ii) the case before the Court was against the Commission, not against OLAF.

THE DECISION 1. Introductory remarks 1.1 The complainant was an official who had worked for the Office for Official Publications of the European Communities ('OPOCE'), the European Union's publication office. He complained against the European Anti-Fraud Office ('OLAF') in respect of OLAF's handling of information that he had submitted to it about suspected illegalities at OPOCE. He had provided information on this to the Director General of OLAF on 31 July 2002. OLAF initiated an official investigation on 13 November 2002 [reference number]. The complaint to the Ombudsman related to provisions in the Commission's decision C(2002) 845 of 4 April 2002. This decision laid down the rights and duties in respect of officials intending to report on suspected wrongdoings in the Commission (popularly known as 'whistleblowers'). The disputed provision of this decision was Article 2, which provided as follows: "1. An official or servant who further discloses information as defined in Article 1 outside the Commission or the European Anti-Fraud Office shall not as a result suffer any adverse consequences from the Commission alone provided that all the following conditions are met: a) The official or servant honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; b) the official or servant has previously disclosed the same information to the European Anti-Fraud Office or to the Commission and has allowed a reasonable period of time for the Office or the Commission to take appropriate action; and c) the disclosure is made to the President of the Court of Auditors or of the Council of the European Union or of the European Parliament; or the European Ombudsman. 2. For the purpose of subparagraph (1)(b), and subject to paragraph (3), a reasonable period shall be the period which the Office or the Commission, as the case may be, has indicated as being necessary to carry out the investigations and, where necessary, take appropriate action. The official or servant shall be duly informed.

174

3. Paragraph (2) shall not apply where the official or servant can demonstrate that the period or periods indicated by the Office or the Commission is or are unreasonable having regard to all the circumstances of the case." The complainant alleged undue delay by OLAF in the handling of information disclosed under Commission Decision C (2002) 845 of 4 April 2002 regarding investigation OF/[reference number]. Furthermore, he alleged lack of information regarding the reasonable period necessary to carry out the investigations in accordance with Article 2(2) of the above-mentioned Commission Decision. 1.2 In its opinion, OLAF referred to Article 2 of the Commission decision quoted above, stating that "[i]n the present case, Article 2 is not at issue, because the complainant does not allege that he has suffered any adverse consequences for having disclosed the information outside the Commission or OLAF". OLAF also stated that even if Article 2 were applicable, its requirements had been fully satisfied in this case, stating that "[f]rom the opening of the investigation until 31 July 2003, the complainant never indicated that he believed that a reasonable period had passed since he first provided the information to OLAF and that he was contemplating disclosing the information outside the Commission or OLAF[...]". 1.3 In his observations, the complainant conceded that the relevant provisions of Community law did not lay down specific deadlines for the conclusion of OLAF's investigations. However, he pointed out that the OLAF Supervisory Committee had indicated that a nine-month deadline should be respected. The complainant also suggested that OLAF had failed to give priority to his case. He referred to priority criteria set out in a new OLAF Manual. With regard to his second allegation, the complainant essentially put forward that OLAF had misinterpreted Article 2(2) of Commission Decision C(2002) 845. The complainant also noted that he had made remarks concerning the substantive adequacy of OLAF's investigation. He submitted to the Ombudsman that this issue could be taken up for inquiry within the present inquiry. He claimed that OLAF should reopen its investigation. 1.4 The Ombudsman decided to conduct further inquiries. He requested OLAF to provide a supplementary opinion in which it addressed the complainant's allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, as well as the complainant's claim that OLAF should reopen the inquiry. 1.5 In its reply to the Ombudsman's further inquiries, OLAF stated that its Supervisory Committee has no legal power to set deadlines for the completion of investigations. It therefore rejected the view that it had failed to respect guidelines set out by the Committee. With regard to the setting of priorities, OLAF stated that the complainant was not in a position to judge whether OLAF correctly exercised its discretion as regards the

175

investigation here concerned in the light of the hundreds of other cases that OLAF dealt with at the time. It stated that "[e]ven if he had such knowledge, the exercise of OLAF's discretion does not fall within the concept of maladministration and therefore is not properly the subject of review by the Ombudsman". With regard to the second allegation, OLAF stated, in summary, that Article 22b of the amended Staff Regulations was irrelevant for the interpretation of Article 2 of Commission Decision C(2002) 845. With regard to the complainant's allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, as well as the complainant's claim that OLAF should reopen the inquiry, OLAF considered that, in the present case, this aspect of the complaint was not within the Ombudsman's competence to review. 1.6 In his observations on OLAF's reply to the Ombudsman's further inquiries, the complainant maintained his complaint. 1.7 On [date] 2005, the Official Journal reported that the complainant had brought an action against the European Commission before the Court of First Instance. The complainant was reported to claim (a) that the Court should annul the decision of 5 February 2004 to close OLAF investigation OF/[reference number] and the final case report on which that decision was based, and (b) that the Court should order the Commission to reopen the investigation. Thus, the complainant's action before the Court of First Instance appeared to relate to the new allegation included in the inquiry through the Ombudsman's further inquiries (concerning the adequacy of OLAF's investigation). The Ombudsman therefore wrote to the complainant on 9 March 2005 to give him the opportunity to submit his views as to the possible significance that Articles 1(3) and 2(7) of the Ombudsman's Statute(5) may have for his case. In his reply, the complainant accepted that there was "a connection" to his case before the Court. However, he argued that the Ombudsman should nevertheless continue the inquiry into that allegation and claim (i) because the Court had not yet decided on the admissibility of his case, and because there was therefore no court decision with which the Ombudsman's review could interfere, and (ii) because the case before the Court was against the Commission, not against OLAF. He proposed that the Ombudsman should continue his inquiry into all the allegations and his claim. 1.8 The Ombudsman considers it necessary to address two issues in these introductory remarks: the first is the complainant's action before the Court of First Instance; the second is OLAF's view on the scope of the Ombudsman's competence. 1.9 With regard to the complainant's action before the Court of First Instance, it appears that the issues before the Court and the new allegation included in the inquiry through the Ombudsman's further inquiries (concerning the adequacy of OLAF's investigation) concern essentially the same issue. The Ombudsman therefore considers that it would be inconsistent with Articles 1(3) and 2(7) of the Ombudsman's Statute

176

to review that new allegation. The fact that the complainant's action is against the Commission rather than OLAF cannot give rise to a different conclusion. The Ombudsman points out that court actions concerning acts by OLAF are dealt with as actions against the Commission by the Community Courts(6). There would in any case be an inevitable overlap of review if the Ombudsman and the Court were both to review the adequacy of the same investigation, irrespective of whether the court action is against the Commission or OLAF. The Ombudsman has accordingly decided (a) not to review the new allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, and (b) not to review the complainant's claim that OLAF should reopen the inquiry. If, however, the complainant's action before the Court of First Instance is either dropped or rejected by the Court as inadmissible, the complainant would be free to complain to the Ombudsman again. 1.10 With regard to OLAF's comments on the scope of the Ombudsman's competence to review the exercise of discretionary powers, it appears that OLAF accepts that the Ombudsman is competent to review procedural issues as well as questions of arbitrariness, misuse of powers and 'ultra vires'. OLAF appeared, however, to consider that such issues had not been raised by the complainant in the present case. 1.11 In the light of his decision (a) not to review the new allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, and (b) not to review the complainant's claim that OLAF should reopen the inquiry (see paragraph 1.9 above), the Ombudsman considers that it is not necessary further to comment on this aspect of the case. 2. Allegation of undue delay 2.1 The complainant alleged undue delay by OLAF in the handling of information disclosed under Commission Decision C (2002) 845 of 4 April 2002 regarding investigation OF/[reference number]. OLAF rejected this allegation, giving an account of its investigation. 2.2 It appears from OLAF's legal framework that the Community legislator has not laid down specific deadlines for the completion of investigations of the kind here concerned. The complainant has noted that the OLAF Supervisory Committee has addressed the issue of delay. However, it appears that the Supervisory Committee is not competent to lay down specific procedural rules for OLAF's investigations. OLAF is therefore not legally obliged to implement deadlines suggested by the Supervisory Committee in its reports. 2.3 Thus, the Ombudsman's review is aimed at establishing whether there were unreasonable or unjustified delays in OLAF's investigation here concerned. 2.4 It appears from the complaint, OLAF's opinion and the complainant's observations that following receipt of the complainant's allegations against OPOCE on 31 July

177

2002, OLAF opened an investigation on 18 October 2002; the complainant was interviewed by OLAF on 13 November 2002, and relevant documentation was collected in December 2002; between October 2002 and December 2003, the matter was reassigned twice - according to OLAF, the first time because a decision was taken to open an internal investigation, which had required the replacement of the evaluator by an investigator from the internal investigation team, and the second time because the investigator in charge was re-assigned to the "Eurostat Task Force", necessitating the reassignment of his cases. On 31 July 2003, the complainant contacted OLAF's Director because he considered the handling of his file to be unsatisfactory. OLAF's Director interviewed the complainant on 15 September 2003. In December 2003, the OLAF investigator then in charge of the case prepared a final case report in which he recommended that the investigation be closed without follow-up. On 17 December 2003, the investigator telephoned the complainant to inform him of the provisional conclusions. During the conversation, the complainant made further allegations against his superiors at OPOCE, as a result of which the investigator made further inquiries and a further assessment of the evidence which had been gathered. On 28 January 2004, the investigator again telephoned the complainant to inform him that the further investigation was complete, and that the recommendation to close the case without follow-up remained unchanged. On 5 February 2004, the case was closed without follow-up. The complainant was formally notified of this on 16 February 2004. In his observations, the complainant has stated that there were no investigative activities between December 2002 and August 2003. 2.5 It appears from OLAF's opinion that OLAF recognises that there was a delay of several months. OLAF seems to consider that this delay is adequately explained by the fact that the file was reassigned twice and by the significant case-load at the time. The complainant has pointed out that his allegations concerned a complex matter contained in a large dossier. The Ombudsman takes the view that the two reassignments that took place in this complex case could well explain, in the absence of evidence to the contrary, the lack of an earlier completion of the investigation. The Ombudsman furthermore has no reason to assume that OLAF reassigned the investigation on improper grounds. 2.6 On the basis of the above, the complainant's first allegation does not appear to have been substantiated. 3. Failure to inform 3.1 The complainant alleged lack of information regarding the reasonable period necessary to carry out the investigation in accordance with Article 2(2) of the abovementioned Commission Decision. 3.2 Rejecting the allegation, OLAF stated that "[i]n the present case, Article 2 is not at issue, because the complainant does not allege that he has suffered any adverse consequences for having disclosed the information outside the Commission or OLAF". OLAF also stated that even if Article 2 were applicable, its requirements had been

178

fully satisfied in this case, stating that "[f]rom the opening of the investigation until 31 July 2003, the complainant never indicated that he believed that a reasonable period had passed since he first provided the information to OLAF and that he was contemplating disclosing the information outside the Commission or OLAF [...]". 3.3 The complainant considered in his observations that OLAF had misinterpreted Article 2(2). He referred to Article 22 b of the new Staff Regulations, which provides that the institution must, within 60 days, give the official concerned information as to the expected investigation period. In its response to the Ombudsman's further inquiries, OLAF rejected this argument. 3.4 In the Ombudsman's view, the purpose of Article 2 of Commission Decision C(2002) 845 was to set out the conditions to be fulfilled before an official or servant could disclose information outside the Commission or OLAF without suffering any adverse consequences. Article 2(1)(b) contained one such condition, namely that the official had "allowed a reasonable period of time for the Office [i.e. OLAF] or the Commission to take appropriate action". Article 2(2) provided that "[...]a reasonable period shall be the period which the Office or the Commission, as the case may be, has indicated [emphasis added] as being necessary to carry out the investigations[...]" and "[t]he official or servant shall be duly informed". Article 2(3) refers to "[...] the period or periods indicated by the Office or the Commission [...]" (emphasis added). These provisions therefore would appear to have aimed at making it possible for the official or servant concerned to know when he or she could disclose the information outside the Commission or OLAF. In the Ombudsman's view, it appears that Article 2 did not require that the official or servant concerned should have suffered 'adverse consequences' or that the official or servant should have requested the information about the 'reasonable period of time'. In the Ombudsman's view, Article 2 clearly imposed an obligation on OLAF to provide, in any case, the official or servant with information as to the period of time within which it expected to conclude its investigation. It must be recalled, however, that the highest authority on the meaning and interpretation of Community law is the Court of Justice. 4. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: The purpose of Article 2 of Commission Decision C(2002) 845 was to set out the conditions to be fulfilled before an official or servant could disclose information outside the Commission or OLAF without suffering any adverse consequences. Article 2(1)(b) contained one such condition, namely that the official had "allowed a reasonable period of time for the Office [i.e. OLAF] or the Commission to take appropriate action". Article 2(2) provided that "[...]a reasonable period shall be the period which the Office or the Commission, as the case may be, has indicated as being necessary to carry out the investigations[...]" and "[t]he official or servant shall be duly informed". Article 2(3) refers to "[...] the period or periods indicated by the

179

Office or the Commission [...]". These provisions therefore would appear to have aimed at making it possible for the official or servant concerned to know when he or she could disclose the information outside the Commission or OLAF. In the Ombudsman's view, it appears that Article 2 did not require that the official or servant concerned should have suffered 'adverse consequences' or that the official or servant should have requested the information about the 'reasonable period of time'. In the Ombudsman's view, Article 2 clearly imposed an obligation on OLAF to provide, in any case, the official or servant with information as to the period of time within which it expected to conclude its investigation. It must be recalled, however, that the highest authority on the meaning and interpretation of Community law is the Court of Justice. In view of the above, the Ombudsman has come to the conclusion that OLAF's failure to provide the complainant with information as to the period of time within which it expected to conclude its investigation was an instance of maladministration. Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case. The Director-General of OLAF will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------These articles limit the Ombudsman's competence of inquiry in respect of cases dealt with by courts. The relevant rules are now contained in the amended Staff Regulations, see further below.
(3) (2) (1)

Official Journal 1999 L 136 p 1.

These articles limit the Ombudsman's competence of inquiry in respect of cases dealt with by courts. These articles limit the Ombudsman's competence of inquiry in respect of cases dealt with by courts.
(6) (5)

(4)

See for instance Case T-193/04 R, Tillack against Commission, Order of the President of the Court of First Instance of 15 October 2004 (not yet published).

180

Decision of the European Ombudsman on complaint 224/2004/PB against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 23 March 2005

Dear Mr X., On 18 January 2004, you made a complaint to the European Ombudsman concerning alleged breaches of EC Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies. In your complaint, you requested me not to publish personal data on yourself. I therefore decided to classify your complaint as confidential. On 18 February 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 27 May 2004 and I forwarded it to you with an invitation to make observations, if you so wished. On 31 July 2004, you sent me a communication containing various remarks. That communication clarified that the remarks should not be considered and dealt with as observations on the Commission's opinion. I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time that it has taken to deal with your complaint.

THE COMPLAINT On 10 June 2003, the complainant asked the Commission's Representation in Denmark for a 'communication' (in Danish 'meddelelse') under Article 31 of the Danish data protection legislation, which implements Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(1). The 'communication' requested was the information referred to in Article 12(a) of Directive 95/46, which gives data subjects a right of access to information on data held on them(2). In his request, the complainant noted that a member of staff of the Commission's Representation had contacted him by telephone on that same day(3). The complainant
181

had asked the staff member concerned how he had obtained possession of his telephone number. He had been informed that the telephone number was in "some correspondence". On 13 June 2003, the Representation sent the complainant a reply, the relevant part of which contained the following statement (translation by the Ombudsman's services): "On 10 June 2003, I telephoned you. Your name, address and telephone number has been indicated by you in your complaint to the European Ombudsman(4). This complaint was subsequently sent by the European Ombudsman to the Commission for comments." The complainant considered that this reply did not fulfil the requirements relating to a 'data communication'. On 14 June 2003, he complained to the Danish Data Protection Authority. On 1 July 2003, the Commission's Representation sent the complainant another letter. The letter contained the following statement (translation by the Ombudsman's services): "As an addendum to my letter to you of 13 June 2003, reference 150603, I enclose a printout from our register of incoming and outgoing mail. As you can see, you have been registered as 'Private Person from [town] in Denmark' with the address '[address]'. Your name is registered as '[name]'. Latest updating is today's date (01/07/2003) when the printout was made. The Commission's Representation in Denmark has not previously registered other personal data under your name." On 21 July 2003, the Danish Data Protection Authority informed the complainant that it considered the Representation to have acted in conformity with the Danish data protection legislation. It referred to the Representation's letter of 1 July 2003 quoted above, of which it enclosed a copy. It also enclosed a copy of the letter that the Representation had sent to it in response to the complainant's complaint to the Danish Data Protection Authority. This letter primarily contained references to the Representation's letter of 1 July 2003 to the complainant. The Danish Data Protection Authority also sent the complainant a copy of the letter to the Representation. On 4 August 2003, the complainant asked the Data Protection Authority to review its decision. He remarked that the 'data communication' that he had received did not appear to concern data registered under his name at the date when he had made his request for the communication. He noted that he had made his request on 10 June 2003 but that the Representation's communication referred to a subsequent date (i.e. the updating on 1 July 2003). The complainant furthermore remarked that he did not consider that he had been given all the information that he should have received under Article 31 of the Danish data protection legislation. This article provides that the 'data communication' shall contain the following:

182

1. the data that are being processed; 2. the purposes of the processing; 3. the categories of recipients of the data; and 4. any available information as to the source of such data. The complainant considered that he had not been given information on 2 - 4. The Danish Data Protection Authority informed the complainant on 25 August 2003 that it had asked the Commission's Representation (1) to give it information on whether there had been any revision of the personal data registered under the complainant's name since 10 June 2003 (i.e. the date when he made his request for a 'data communication') and (2) to provide the complainant with information on categories 2 - 4 of Article 31 of the Danish data protection legislation referred to above. On 27 August 2003, the Commission's Representation sent letters to the Danish Data Protection Authority and to the complainant. The relevant part of the letter to the Data Protection Authority contained the following statement (translation by the Ombudsman's services): "As an addendum to our letter to you of 3 July 2003, reference 150683, I can inform you that a telephone number has previously been included in our register. This telephone number was deleted after I telephoned [the complainant] and was informed in clear terms that he DID NOT want to speak to me and that he DID NOT wish to be contacted by telephone. NO deletions or additions have subsequently been made to the basic information in our register." In the letter to the complainant, the Representation wrote the following (translation by the Ombudsman's services): "It is hereby communicated to you that in our internal register, incoming and outgoing mail is recorded under the name of the person or organisation with whom/which we are in contact, including name, address and, when relevant, telephone number, fax number and/or email address. The information is contained in the enclosure in the letter dated 3 July 2003 to you, reference 150681(5); the purpose of the processing is to ensure a correct management of our incoming and outgoing mail;

183

 the register is only for internal use by the European Commission, and the data is not passed on; the data in our register came from yourself. However, to contact you we searched for a telephone number in the internet service of TDC [ the Danish Public Telephone Company ]. This number, which turned out not to be correct, has been included in our register, but has subsequently been deleted." On 16 December 2003, the Data Protection Authority informed the complainant that it considered the Representation to have acted in conformity with the Danish data protection legislation. It referred to the letters of 27 August 2003 quoted above, of which it enclosed copies. In his complaint to the Ombudsman, the complainant alleged that the Representation had breached Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(6). He considered that the Representation had breached Article 12(7) of the Regulation in collecting information about him from other sources than himself, and that it had breached Article 13(8) by failing to give him easily understandable information about the Representation's processing of his personal data. With regard to the latter, the complainant remarked in particular that the two letters of 27 August 2003 quoted above seemed inconsistent in one respect. He pointed out that the letter to the Danish Data Protection Authority effectively referred to two telephone numbers, i.e. (i) the incorrect number that had been deleted from the Representation's register and (ii) - at least indirectly - the correct number as the letter referred to a telephone call made to him by the Representation. The letter to the complainant only referred to the incorrect telephone number. The complainant concluded that the Representation must have registered two telephone numbers under his name, and not only one as stated in its letter to himself. In his complaint, the complainant furthermore set out the following claims (translation by the Ombudsman's services): "1) that it is recognised, that the Commission's Representation in Copenhagen employs a person who lies, and who is in addition so stupid, that he thinks he can get away with telling different versions to the supervisory authority and the citizen. 2) that it is recognised, that the Commission's Representation in Copenhagen has unlawfully collected telephone numbers concerning a private person who did not himself provide these numbers, and without informing that person about it.

184

3) that the European Ombudsman shows himself to be capable of handling a citizen's complaint against the Commission without being constrained to simply copy the Commission's opinion into his decision, and at any price without having to stay good friends with the Commission." For the reasons explained in Part 1 of the Decision, below, the Ombudsman did not request that the Commission address these claims. The Ombudsman's request for an opinion on the complaint only referred to the allegations summarised above.

THE INQUIRY The Commission's opinion The complaint was forwarded to the Commission, which made the following comments: 1. The Commission takes note of the comments made by the complainant regarding the allegedly unsatisfactory access to, and notification of, his personal data registered by the European Commission Representation in Denmark. 2. The complainant claims that the way in which his case was dealt with by the Representation constitutes an infringement of Article 12 (concerning compilation of personal data from sources other than the data subject) and Article 13 (concerning intelligible notification hereof) of Regulation (EC) No. 45/2001. 3. This case is related to a previous complaint by the complainant to the European Ombudsman (5/2003/PB). The Representation, in its effort to serve the complainant in the best way possible as regards his subsequent request for access to the documents relating to that complaint, had tried to contact him personally by telephone. 4. As background information it should be noted moreover that the complainants present complaint has already been submitted to the Danish Data Supervisory Authority with the claim that the Representation has failed to issue an appropriate notification under Section 31 of the Danish Personal Data Act. Although the Danish Data Supervisory Authority might in principle not have been obliged to deal with this complaint concerning data processing within a European Union institution (as opposed to a national authority), it did in fact examine the case and upon a close examination of the Danish legislation (in which the wording concerning notifications is almost identical to that of Regulation (EC) No. 45/2001) decided on 21 July 2003 that it would not take further actions in this matter. 5. As regards the present complaint to the European Ombudsman the Commission wishes to inform the European Ombudsman about the following course of events:

185

On 10 June 2003, the European Commission Representation in Copenhagen telephoned the complainant twice in order to clarify which documents were referred to in his letter of 29 May 2003 to the Representation requesting access to documents relating to his complaint 5/2003/PB to the European Ombudsman. The first telephone number used as an effort to contact the complainant was acquired by the Representation from a search through the website of the TDC (the Danish national telephone company) on the basis of the name and address which the complainant himself had given to the Representation in an e-mail dated 4 November 2002. The Representation registered this TDC number in the Representations register of incoming and outgoing mail (i.e. Adonis). However, it was not the complainant who answered, and the Representation was told that he could not be found at the telephone number in question. Consequently, the Representation concluded that the number was incorrect. In its eagerness to find out what files or documents the complainant was requesting access to, the Representation subsequently realised that a letter of 11 February 2003 from the Directorate-General for Press and Communication to the then Head of Representation, Mr J., had a document attached to it, namely complaint 5/2003/PB to the European Ombudsman, in which the complainant himself had indicated his private telephone number. The Representation then made a telephone call to this number and the complainant answered. However, the complainant reacted very angrily to the call and stated that he did not want to be contacted by telephone anymore. So in fact this number was the correct telephone number but it was never registered. Hereafter, and in line with the complainants clear instructions, the Representation deleted the above TDC number from the Adonis register. For the same reason the, Representation instead wrote the complainant a letter dated 11 June 2003 listing the possible relevant documents for complaint 5/2003/PB. As a consequence of the above telephone calls, the complainant wrote a letter to the Representation on that same day requesting access to the correspondence that had allowed the Representation to obtain his telephone number and demanding an appropriate notification under Section 31 of the Danish Personal Data Act of all the personal data registered concerning him. On 13 June 2003, the Representation replied indicating that the name, address and telephone number of the complainant originated from complaint 5/2003/PB which had been passed to the Representation for comments. The Representation did not explicitly comment on which personal data it had registered.

186

On 14 June 2003, the complainant submitted a complaint to the Danish Data Protection Authority. On 1 July 2003, the Representation sent the complainant an additional copy of the screen page from the Representations register of incoming and outgoing mail (i.e. Adonis), which at that time only contained the complainants name and address and no telephone numbers. On 4 August 2003, the complainant again complained to the Danish Data Supervisory Authority, claiming not to have received a proper notification according to Section 31 of the Danish Data Protection legislation on the exact date of his original request i.e. 10 June 2003, concerning the telephone numbers used by the Representation to contact him. On 27 August 2003, and following a request by the Danish Data Supervisory Authority, the Representation sent the complainant a further notification clearly explaining the processing of his personal data in the mail register and the fact that the telephone number searched for by the Representation at the TDCs Internet service had been registered for a short while in the mail register. On the same day the Representation also wrote to the Danish Data Supervisory Authority again explaining its processing of the complainants data and making a clear reference to the fact that a telephone number obtained from the TDC Internet service had previously been registered. The complainant thereafter claimed that the contents of those two letters were inconsistent and made the present complaint to the European Ombudsman.

6. Having examined the letters of 11 June 2003 and 13 June 2003, 1 July 2003 and 27 August 2003 sent from the Representation to the complainant in this case, the Commission believes that this case has been handled in the correct manner and in compliance with Articles 12 and 13 of Council Regulation 45/2001. In particular, it should be noted that Article 13 sets a deadline of three months from the date of the receipt of the request to communicate the details about the personal data registered, which indeed has been respected by the Representation. As for the complainants wish to have a copy of his personal data in the mail register on the very day of his request, i.e. on 10 June 2003, it is unfortunately not technically possible to back-date the Adonis mail register. The Representation has therefore instead attempted to explain to the complainant in writing that a TDC telephone number had previously been registered. Moreover, it should be noted that the Representation has attempted to provide the complainant with a good service both by always providing him with what he asked for and by deleting the data which he indicated he did not want registered, thus following the complainants own instructions. 7. Finally, considering that the complainants complaint concerns the processing of his personal data within an EU-institution, the Commission is of the opinion that this case should be referred to the European Data Protection Supervisor (EDPS).

187

The complainant's observations The Commission's opinion was forwarded to the complainant for observations. On 31 July 2004, he sent the Ombudsman a communication containing various remarks. That communication clarified that the remarks should not be considered and dealt with as observations on the Commission's opinion. It was clear, however, that the complainant maintained his complaint.

THE DECISION 1. Introductory remarks 1.1 The present complaint concerns the response of the Commission's Representation in Copenhagen to the complainant's request for information concerning the processing by the Representation of data relating to him. Not being satisfied with the Representation's response, the complainant initially submitted complaints to the Danish Data Protection Authority. The latter obtained replies from the Representation and found that there were no breaches of the relevant legislation. The review of the Danish Data Protection Authority was made on the basis of the Danish data protection legislation, which implements Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(9). In his complaint to the Ombudsman, the complainant referred to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(10). 1.2 In light of the fact that the relevant data protection provisions in the Danish legislation (implementing Directive 95/46) and Regulation 45/2001 aim to provide the same kind of protection to data subjects, the Ombudsman carefully examined whether it would be appropriate to open an inquiry notwithstanding the inquiries made by the Danish Data Protection Authority. The Ombudsman concluded that an inquiry would be relevant because (1) the differences in the wording of the Representation's letters of 27 August 2003 to the complainant on the one hand and to the Danish Data Protection Authority on the other made it reasonable for the complainant to question whether he had been given easily understandable information, and (2) because the Danish Data Protection Authority appeared not to have inquired into the issue of whether the Representation had unlawfully collected and registered data on the complainant. 1.3 With regard to the Commission's statement that this case should be referred to the European Data Protection Supervisor, the Ombudsman considers that it is certainly useful for the purpose of information-exchange and consistency of interpretation to inform the European Data Protection Supervisor (EDPS) about decisions concerning data protection. In the present case, the EDPS will therefore be informed about the Ombudsman's decision(11). In appropriate circumstances, for example in cases

188

involving complex issues of legal interpretation, the Ombudsman may furthermore consider it useful to consult the European Data Protection Supervisor directly. The circumstances of the present case do however not appear to make such consultation necessary. 1.4 As regards the three claims made by the complainant (quoted above at the end of the summary of the complaint), the Ombudsman considered that the concerns contained in claim one and two could be adequately responded to in his review of the allegations summarised above under 'The Complaint'. The Commission was therefore not requested to address these claims directly in its opinion. As regards the third claim, it reflects concerns as regards the Ombudsman's independence that had already been raised by the complainant in relation to his complaint 5/2003/(PB)BB. The Ombudsman considers that these concerns have been adequately responded to in the framework of that inquiry. In the present inquiry, the letter informing the complainant of the opening of the inquiry has repeated that the European Ombudsman acts with complete independence. 2. Alleged breach of Regulation 45/2001 2.1 The complainant alleged that the Representation had breached Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(12). He considered that the Representation had breached Article 12 of the Regulation in collecting information about him from other sources than himself, and that it had breached Article 13 by failing to give him understandable information about the Representation's processing of his personal data. 2.2 In its opinion, the Commission rejected the complainant's allegation. 2.3 As regards the complainant's view that the Commission's Representation breached Article 12 of Regulation 45/2001 by collecting information about him from sources other than himself, the Ombudsman notes that the Article provides as follows: 1. Where the data have not been obtained from the data subject, the controller shall at the time of undertaking the recording of personal data or, if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed, provide the data subject with at least the following information, except where he or she already has it: (a) the identity of the controller; (b) the purposes of the processing operation; (c) the categories of data concerned;

189

(d) the recipients or categories of recipients; (e) the existence of the right of access to, and the right to rectify, the data concerning him or her; (f) any further information such as: (i) the legal basis of the processing operation for which the data are intended, (ii) the time-limits for storing the data, (iii) the right to have recourse at any time to the European Data Protection Supervisor, (iv) the origin of the data, except where the controller cannot disclose this information for reasons of professional secrecy, insofar as such further information is necessary, having regard to the specific circumstances in which the data are processed, to guarantee fair processing in respect of the data subject. 2. Paragraph 1 shall not apply where, in particular for processing for statistical purposes or for the purposes of historical or scientific research, the provision of such information proves impossible or would involve a disproportionate effort or if recording or disclosure is expressly laid down by Community law. In these cases the Community institution or body shall provide for appropriate safeguards after consulting the European Data Protection Supervisor. 2.4 It appears from the facts of the case that the Commission's Representation conducted a search in an online database with a view to contacting the complainant by telephone to obtain clarification of an application for access to documents that he had made on 29 May 2003. The telephone number that it found was registered in the Representation's register under the complainant's name. The telephone number turned out, however, to be incorrect. The Representation then discovered the correct number in a complaint from the complainant that had been forwarded by the European Ombudsman to the European Commission. Having found the correct number, the Representation telephoned the complainant on 10 June 2003. Following the conversation with the complainant, who appears to have expressed a wish not to be contacted by telephone, the Representation deleted the incorrect telephone number from its register. As regards the correct telephone number with which the Representation contacted the complainant on 10 June 2003, it appears that this number was never entered in the Representation's register. This part of the present case therefore only concerns the Representation's handling of the incorrect telephone number.

190

2.5 It is clear that within the meaning of Regulation 45/2001, the Representation obtained the data (the incorrect telephone number) from a source other than the complainant (the online database) and processed that data (by registering it). The fact that the telephone number subsequently turned out to be wrong does not appear to remove its status as data relating to the complainant, as it was found and registered under his name. In formal terms, therefore, it appears that it was incompatible with Regulation 45/2001 not to inform the complainant in accordance with Article 12 of that regulation. However, it is clear from the Commission's opinion that its Representation telephoned the complainant in his own interest to obtain clarification of an application for documents that he had made shortly beforehand. When the complainant informed the Representation that he did not wish to be contacted by telephone, the Representation duly removed the incorrect telephone number from its register. The Representation therefore appears to have taken reasonable steps to safeguard the complainant's interests. In these circumstances, the Ombudsman considers that it is not necessary to inquire further into this aspect of the complaint. The complainant remains free, however, to contact the European Data Protection Supervisor if he should wish to obtain the latter's assessment(13). 2.6 As regards the complainant's view that the Commission's Representation breached Article 13 of Regulation 45/2001, the Ombudsman notes that the Article provides as follows: "Right of access The data subject shall have the right to obtain, without constraint, at any time within three months from the receipt of the request and free of charge from the controller: (a) confirmation as to whether or not data related to him or her are being processed; (b) information at least as to the purposes of the processing operation, the categories of data concerned, and the recipients or categories of recipients to whom the data are disclosed; (c) communication in an intelligible form of the data undergoing processing and of any available information as to their source; (d) knowledge of the logic involved in any automated decision process concerning him or her." 2.7 According to the complainant, the Representation failed to give him easily understandable information, and thereby breached Article 13 of Regulation 45/2001. This provision sets out categories of information that must be provided to the data subject concerned, such as what data are processed, their source and possible

191

recipients. The Ombudsman considers that it is good administrative practice to ensure that the information thus provided is correct and easy to understand. 2.8 For the purpose of reviewing the complainant's allegation, the Ombudsman considers that it is appropriate to examine the full correspondence between the complainant and the Representation. On 10 June 2003, the Representation telephoned the complainant in relation to a request for public access to documents. On that same day, the complainant asked the Representation to inform him about how it had obtained his telephone number. The Representation informed him, on 13 June 2003, that his telephone number had been "indicated by you in your complaint to the European Ombudsman". On 14 June 2003, the complainant asked the Representation for full information on its processing of his personal data. His request was made under the Danish data protection legislation which implements Directive 95/46/EC, and which contains essentially the same requirements as those set out in Article 13 of Regulation 45/2001 quoted above. On 1 July 2003, the Representation informed the complainant as follows: "As an addendum to my letter to you of 13 June 2003, reference 150603, I enclose a printout from our register of incoming and outgoing mail. As you can see, you have been registered as 'Private Person from [town] in Denmark' with the address '[address]'. Your name is registered as '[name]'. Latest updating is today's date (01/07/2003) when the printout was made. The Commission's Representation in Denmark has not previously registered other personal data under your name." (Emphasis added.) Subsequently, following the complainant's complaint to the Danish Data Protection Authority, the Representation informed the complainant in its letter of 27 August 2003 that "the data in our register came from yourself. However, to contact you we searched for a telephone number in the internet service of TDC. This number, which turned out not to be correct, has been included in our register, but has subsequently been deleted." (Emphasis added.)

2.9 It emerges from the above that the Commission's Representation failed, in its letter of 13 June 2003, to inform the complainant as to whether the telephone number that it had used to contact him on 10 June 2003 had actually been registered or not. It was only in its opinion submitted in the course of the present inquiry that the Commission clarified that no registration of that telephone number had taken place. It further emerges that when the Representation informed the complainant on 27 August 2003 about the incorrect telephone number that had been registered under his name and that had subsequently been deleted, it failed to give any information about when that number had been registered or when it had been deleted. Furthermore, it is clear from the Representation's letter of 27 August 2003 that its letter of 1 July 2003, in which it had stated that the "Commission's Representation in Denmark has not previously

192

registered other personal data under your name", was incorrect since this letter failed to mention the incorrect telephone number that had been registered. On the basis of these findings, the Ombudsman considers that the Representation failed to give correct and easily understandable information in accordance with Article 13 of Regulation 45/2001. This constitutes an instance of maladministration, and the Ombudsman makes the critical remark set out below. 2.10 As regards the complainant's remarks on the possible inconsistency between the letters that the Representation sent to himself and to the Danish Data Protection Authority on 27 August 2003, the Ombudsman considers that further inquiries into this issue are not necessary in the light of the above findings. 3. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: Article 13 of Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies sets out categories of information that must be provided to the data subject concerned, such as what data are processed, their source and possible recipients. The Ombudsman considers that it is good administrative practice to ensure that the information thus provided is correct and easy to understand. In the present case, the Commission's Representation failed, in its letter of 13 June 2003, to inform the complainant as to whether the telephone number that it had used to contact him on 10 June 2003 had actually been registered or not. It was only in its opinion submitted in the course of the present inquiry that the Commission clarified that no registration of that telephone number had taken place. It further emerges that when the Representation informed the complainant on 27 August 2003 about the incorrect telephone number that had been registered under his name and that had subsequently been deleted, it failed to give any information about when that number had been registered or when it had been deleted. Furthermore, it is clear from the Representation's letter of 27 August 2003 that its letter of 1 July 2003, in which it stated that the "Commission's Representation in Denmark has not previously registered other personal data under your name", was incorrect since this letter failed to mention the incorrect telephone number that had been registered. On the basis of these findings, the Ombudsman considers that the Representation failed to give correct and easily understandable information in accordance with Article 13 of Regulation 45/2001. This constitutes an instance of maladministration. As regards the possibility of proposing a friendly solution(14), the Ombudsman considers that although the Commission failed to provide correct and easily understandable information as foreseen by Article 13 of Regulation 45/2001 when the complainant asked for such information in 2003, the Commission would appear to have submitted this information in its opinion on the present complaint. He further

193

notes that the Commission has explained that for technical reasons it is not possible to provide the complainant with a copy of the data that were originally registered and subsequently deleted. In these circumstances, the Ombudsman takes the view that it is not appropriate to pursue a friendly settlement of the matter. As regards the Ombudsman's inquiries into the complainant's allegation that there was a breach of Article 12 of Regulation 45/2001, the Ombudsman considers that no further inquiries are necessary. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision, as will the European Data Protection Supervisor. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Official Journal 1995 L 281 p. 31. Article 12(a) provides the following: Right of access Member States shall guarantee every data subject the right to obtain from the controller: (a) without constraint at reasonable intervals and without excessive delay or expense: - confirmation as to whether or not data relating to him are being processed and information at least as to the purposes of the processing, the categories of data concerned, and the recipients or categories of recipients to whom the data are disclosed, - communication to him in an intelligible form of the data undergoing processing and of any available information as to their source, - knowledge of the logic involved in any automatic processing of data concerning him at least in the case of the automated decisions referred to in Article 15 (1).

(2)

194

It appears from the Commission's opinion (summarised below) that the complainant was contacted in order to obtain clarification of an application for access to documents that he had submitted to the Commission shortly beforehand. The complainant had previously been in contact with the Commission's Representation concerning the possibility of obtaining advice on Community law. This contact gave rise to complaint 5/2003/(PB)BB to the European Ombudsman. It appears from the reference number that the letter here referred to is the one sent to the complainant on 1 July 2003 (see above).
(6) (5) (4)

(3)

Official Journal 2001 L 8 p. 1. Article 12

(7)

Information to be supplied where the data have not been obtained from the data subject 1. Where the data have not been obtained from the data subject, the controller shall at the time of undertaking the recording of personal data or, if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed, provide the data subject with at least the following information, except where he or she already has it: (a) the identity of the controller; (b) the purposes of the processing operation; (c) the categories of data concerned; (d) the recipients or categories of recipients; (e) the existence of the right of access to, and the right to rectify, the data concerning him or her; (f) any further information such as: (i) the legal basis of the processing operation for which the data are intended, the time-limits for storing the data, the right to have recourse at any time to the European Data Protection Supervisor,

(ii) (iii)

195

(iv)

the origin of the data, except where the controller cannot disclose this information for reasons of professional secrecy,

insofar as such further information is necessary, having regard to the specific circumstances in which the data are processed, to guarantee fair processing in respect of the data subject. 2. Paragraph 1 shall not apply where, in particular for processing for statistical purposes or for the purposes of historical or scientific research, the provision of such information proves impossible or would involve a disproportionate effort or if recording or disclosure is expressly laid down by Community law. In these cases the Community institution or body shall provide for appropriate safeguards after consulting the European Data Protection Supervisor.
(8)

Article 13

Right of access The data subject shall have the right to obtain, without constraint, at any time within three months from the receipt of the request and free of charge from the controller: (a) confirmation as to whether or not data related to him or her are being processed; (b) information at least as to the purposes of the processing operation, the categories of data concerned, and the recipients or categories of recipients to whom the data are disclosed; (c) communication in an intelligible form of the data undergoing processing and of any available information as to their source; (d) knowledge of the logic involved in any automated decision process concerning him or her.
(9)

Official Journal 1995 L 281 p. 31. Official Journal 2001 L 8 p. 1.

(10)

(11)

As the complaint is confidential, the European Data Protection Supervisor will receive an anonymized version of the Ombudsman's decision. That version will also be published on the Ombudsman's homepage. Official Journal 2001 L 8 p. 1.

(12)

196

European Data Protection Supervisor, rue Wiertz 60, B-1047 Brussels, edps@edps.eu.int.
(14)

(13)

Article 3(5) of the Ombudsman's Statute provides that "As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint."

197

Decision of the European Ombudsman on complaint 237/2004/JMA against the Council of the European Union

Strasbourg, 10 March 2005

Dear Mr M., On 16 December 2003, you wrote to the European Ombudsman complaining against both the European Commission and the Council of the EU, in connection with the alleged lack of parking spaces for disabled people near the main buildings in Brussels of both the Commission and the Council. Since your allegations were addressed against two institutions, I decided to register them under two different file numbers. Your allegations against the European Commission were registered under complaint number 2415/2003/JMA, whereas those against the Council were registered under reference 237/2004/JMA. Your complaint against the Commission, concerning the alleged failure of this institution to take the necessary steps to ensure that a sufficient number of parking spaces for disabled people is available near its Brussels' headquarters, was the object of a separate inquiry. The Ombudsman took a decision on this case on 31 January 2005. The present decision therefore deals only with your complaint against the Council, which concerns the institution's alleged failure to take the necessary steps to ensure that sufficient parking spaces for people with disabilities are available near its headquarters in Brussels. On 2 February 2004, I forwarded your complaint to the Secretary-General of the Council, with a request for comments. I received the Council's opinion on 28 May 2004, which I forwarded to you with an invitation to make observations. On 8 October 2004, you sent me your observations on the Council's opinion. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The facts of the case are, in summary, as follows:

198

The complainant suffers from a serious disability. He is a journalist working for the TV channel France 2, where he covers EU matters, having been accredited to the main European institutions in Brussels. The complainant has encountered difficulties to cover press events taking place in the main buildings in Brussels of both the Commission and the Council, since, unlike the Parliament, those institutions do not make parking spaces available to disabled people. He stated that parking near the Council's headquarters in Brussels is sparse, and parking infringements are frequently fined severely by the Brussels authorities. The complainant explained that, even though his car displays a special permit for disabled people, he has been fined on several occasions. He wondered whether the European authorities could not request that their Belgian counterparts take the necessary initiatives to solve the lack of parking spaces for disabled people near the buildings in Brussels of many EU institutions. In the light of the information submitted in the complaint, the Ombudsman opened an inquiry against the Council of the EU. The allegation on which the Ombudsman asked the Council to submit an opinion was the following: The complainant alleges that the Council has failed to take the necessary steps to ensure that the Belgian authorities reserve a sufficient number of parking spaces for people with disabilities near its headquarters in Brussels.

THE INQUIRY The Council's opinion In its opinion, the Secretary-General of the Council expressed his personal concern with the principle of equal treatment. He stated that that the Council's buildings have been conceived or adapted to allow easy access to disabled people. An appropriate number of parking spaces has therefore been reserved for disabled staff members or officials of the Member States and other institutions who need access to these buildings. The Council noted that, due to security reasons, those parking facilities cannot be made available to the public. The Council stressed that it does not have the power to create parking spaces for disabled people in public areas. In Belgium, this task belongs exclusively to the national, regional or communal authorities, and therefore these authorities are ultimately responsible for the situation. The Council added that, in a spirit of constructive co-operation, its services contacted the competent Belgian authorities as regards this matter, and asked them to establish a number of additional parking spaces for disabled people near all Council buildings in Brussels. The institution explained that its services made appropriate suggestions to this effect. The requests include the Council headquarters (Justus Lipsius building) as

199

well as other buildings in Brussels (Rolin, Frre Orban, Cortenberg, and Woluwe Heights). The Council enclosed with its opinion the reasoned requests which it had sent to the responsible Belgian authorities. The Council was confident that, in the light of its contacts with the Belgian authorities, its suggestions will be accepted. The institution noted that any additional parking space for disabled people will be located in a public area, and therefore these spaces cannot be exclusively reserved for visitors to the Council buildings. Accordingly, the Council could not guarantee that these places will stay free or that they will only be used by disabled people. The complainant's observations In his observations on the Council's opinion, the complainant repeated the allegations made in his complaint and underlined that the situation had not changed. He noted that the responsible local authorities have fined him several times when he had parked his vehicle near the Commission and/or the Council premises in Brussels, despite a very visible sign posted in his car which formally identifies him as a disabled person. Even though he has contested the fines, no reply has been given to him by the local authorities.

THE DECISION 1. Preliminary remark 1.1 To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. 1.2 The Ombudsman's inquiries into this complaint have therefore been directed towards examining whether there has been maladministration in the activities of the Council of the European Union. The Ombudsman has no competence to inquire into the complainants allegations against the responsible Belgian authorities concerning the parking fines he has received regardless of his special permit for disabled people, or the lack of reply to his letters contesting these fines. 1.3 As the Ombudsman already pointed out in his decision in case 2415/2003/JMA, having informally consulted on the matter with the services of the Belgian Federal Ombudsman, it appears that there is no specialised ombudsman in Belgium responsible for specific issues involving disabled people. Moreover, since the problems at stake occur in the city of Brussels, the Belgian Federal Ombudsman does not have the power to deal with them. As regards the lack of reply to the complainant's letters, the services of the Belgian Federal Ombudsman suggested that the

200

complainant might contact the mayor of Brussels ("Cabinet du Bourgmestre- Hotel de Ville"). More generally, it appears that the municipal authority responsible for the provision of parking spaces for disabled people, is the "Echevin de l'Etat civil" of Brussels. 2. Alleged failure by the Council to ensure parking for disabled people 2.1 The complainant alleges that the Council has failed to take the necessary steps to ensure that the Belgian authorities reserve a sufficient number of parking spaces for people with disabilities near its headquarters in Brussels. 2.2 The Council argues that all its buildings in Brussels have a number of parking spaces reserved for its disabled staff, as well as for officials from other EU institutions and from the Member States who need access to these buildings. Due to security reasons, those parking facilities cannot be made available to the public. The institution explains that, following the Ombudsman inquiry, its services contacted the competent Belgian authorities, and asked them to establish a number of additional parking spaces near all its buildings in Brussels to be reserved to disabled people. The Council is confident that this request will be accepted, even though the additional parking spaces will be located in a public area, and therefore cannot be exclusively reserved for visitors to the Council buildings. 2.3 The Ombudsman underlines that the Charter of Fundamental Rights of the European Union recognises the need to implement measures in support of disabled people and to promote their integration. Article 26 of the Charter states that, "The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community". The Ombudsman notes that all EU institutions, including the Council, have implemented this provision in connection to the employment of disabled people in the "Code of good practice for the employment of people with disabilities"(1), which also addresses the more general question of the accessibility of disabled officials to the different institutions' premises. 2.4 As regards the availability of parking spaces near the Council buildings, the Ombudsman takes note of the explanation given by the institution whereby a number of parking spaces are reserved for disabled people. He welcomes the Council's request to the responsible Belgian authorities to take measures to ensure that additional parking places for disabled people are reserved near its buildings in Brussels. As he did in the context of his decision to the Commission in case 2415/2003/JMA, the Ombudsman invites the Council to keep him informed of the results of this

201

initiative, and, if necessary, to bring the matter to the attention of the appropriate fora, including the High Level Group of Member States' Representatives on Disability. 2.5 In view of the above, the Ombudsman does not consider it justified to pursue any further inquiries as regards this case. The Ombudsman therefore decides to close the case. 2.6 However, the Ombudsman notes that the parking spaces which the Council secures for disabled people on its own premises are reserved exclusively for members of its own staff, or officials of the Member States and other institutions, and that the Council does not provide places to other disabled people who might also have legitimate reasons to enter the Councils premises. The Ombudsman also notes that the Council explains its practice in this regard by reference to security. The Ombudsman points out that other EU institutions, such as the Commission, have put in place a different policy without apparently creating risks to security. As the Commission stated in its opinion in case 2415/2003/JMA concerning the same situation, each of its buildings has, at least two parking spaces reserved for disabled people which, in the case of visitors, can be made available upon request to the responsible official. The Ombudsman therefore invites the Council to consider the Commission's experience, with a view to allowing parking spaces on its premises to be used by all persons with disabilities who have legitimate reasons to enter the Councils premises. The Ombudsman will address a further remark to the Council to this effect below. 3. Conclusion In view of the results of his investigation, the Ombudsman considers that no further inquiries into this complaint are justified. He therefore closes the case. The Secretary-General of the Council will also be informed of this decision.

FURTHER REMARK The Ombudsman notes that the parking spaces which the Council secures for disabled people on its own premises are reserved exclusively for members of its own staff, or officials of the Member States and other institutions, and that the Council does not provide places to other disabled people who might also have legitimate reasons to enter the Councils premises. The Ombudsman also notes that the Council explains its practice in this regard by reference to security. The Ombudsman points out that other EU institutions, such as the Commission, have put in place a different policy without apparently creating risks to security. As the

202

Commission stated in its opinion in case 2415/2003/JMA concerning the same situation, each of its buildings has, at least two parking spaces reserved for disabled people which, in the case of visitors, can be made available upon request to the responsible official. The Ombudsman therefore invites the Council to consider the Commission's experience, with a view to allowing parking spaces on its premises to be used by all persons with disabilities who have legitimate reasons to enter the Councils premises. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Available, for instance, in the European Commission's website (http://europa.eu.int/comm/employment_social/soc-prot/disable/codehaen_en.htm).
(1)

203

Decision of the European Ombudsman on complaint 274/2004/JMA against the European Commission

Strasbourg, 7 April 2005

Dear Mr Q., On 26 January 2004, I received a letter from the Eurojus service of the Representation of the European Commission in Spain dated 20 January 2004, which included an undated complaint from you against the Commission on behalf of the "Asociacin Era para la Integracin". Your complaint concerned the Commission's failure to inform you about its handling of a complaint which you had lodged with that institution. On 15 March 2004, I forwarded your complaint to the President of the Commission with a request for comments. I received the Commission's opinion on 22 June 2004, which I forwarded to you with an invitation to make observations. On 27 July 2004, the Eurojus service of the Representation of the European Commission in Spain sent me your undated observations on the Commission's opinion. On 23 December 2004, the Commission forwarded me a copy of the letter which its services had sent to you on 14 December 2004. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The facts of the case, according to the complainant, are, in summary, as follows: On 28 July 2003, the complainant lodged a complaint with the Commission concerning the decision taken by the regional government of Madrid, in Spain, to reduce the amount of a grant awarded to him. The grant had been financed through the EU's European Social Fund (ESF), and was aimed at the organisation of a number of training courses for active employees. On 7 August 2003, the Commission's Secretary General sent an acknowledgement of receipt to the complainant. The complainant did not receive any further information. Despite his numerous attempts to contact the official responsible for the file, his efforts were unsuccessful. He therefore sent a complaint to the Ombudsman through the Eurojus service of the Representation of the European Commission in Spain, in which he complained that no information had been sent to him regarding the handling of his complaint by the Commission services.

204

In the light of the information submitted in the complaint, the Ombudsman opened an inquiry against the Commission. The allegation on which the Ombudsman asked the Commission to submit an opinion was the following: The complainant alleges that, several months after he lodged a complaint with the Commission, its services had not furnished him with any information on the handling of the case.

THE INQUIRY The Commission's opinion In its opinion, the Commission first provided a brief background to the case. It explained that the complainant had been awarded a grant of EUR 18 062 50 by the regional government of Madrid, Spain, for the organisation of five Spanish language courses addressed to employees. The complainant had sent a complaint to the Commission about the decision of the regional government of Madrid to reduce the amount of the grant on the grounds that two of the participants were not Spanish citizens, even though they were EU nationals. Upon receipt of the complaint, the responsible Commission services carried out an analysis of the information enclosed with the complaint. On the basis of that information, it was unclear whether the grant awarded to the complainant had been financed through the ESF. The Commission indicated that, even if that were not the case and the grant was part of a ESF's initiative, decisions on the reduction of the amount granted fall within the management responsibilities of the national authorities. The institution added that the complainant's file contained no clear evidence that any discrimination on the basis of nationality had occurred. On the basis of its inquiries, the Commission carried out an assessment of the case, which showed that the regional government of Madrid took its decision to partially withdraw the grant for the following reasons: the complainant only organised three of the five courses initially foreseen and he only justified expenses for EUR 2 006 68. The Commission regretted that its assessment appears not to have been sent to the complainant. As regards the alleged discrimination based on the nationality of the participants, the Commission explained that it had written to the Spanish authority managing the ESF (UAFSE), and asked it to verify with the regional authorities of Madrid whether these allegations had any foundation. The Commission undertook to prepare a more detailed response to the complainant as soon as the UAFSE had forwarded the necessary information.

205

The complainant's observations The complainant forwarded his undated observations on the Commission's opinion to the Eurojus service of the Representation of the European Commission in Spain, which forwarded them to the Ombudsman on 27 July 2004. In his observations, the complainant disagreed with the Commission's assessment of the situation. He noted that it was clear from the information enclosed with his original complaint that the grant awarded to his organisation was part of an ESF funding programme. With his observations, the complainant enclosed a number of documents bearing the ESF logo. He added that the Commission had rushed to judgement by stating that any reduction should be the responsibility of the national authorities, without first having reviewed all available information. The complainant also contested his alleged failure to justify all the expenses incurred in the organisation of the training. In his view, all funds had properly been accounted for. In addition, he referred to a number of documents which showed that part of the funding had been reduced as a result of the fact that two of the participants in the training courses did not have Spanish nationality. The complainant concluded by underlining the Commission's failure to monitor the use of monies from the ESF and requesting that OLAF review the case. Further information from the Commission On 23 December 2004, the Commission forwarded a copy of the letter which its services had sent to the complainant on 14 December 2004. In the letter, the Commission described both, its requests to the responsible Spanish authorities, and the reply given. The institution noted that, as a result of an inspection in the Employment Unit of the regional government of Madrid, it transpired that the grounds for the reduction in the amount of the grant awarded to the complainant were the existence of irregularities in the manner in which the different tasks had been coordinated, the inclusion of identical students in a number of courses, the conclusion of some of the courses despite the fact that less than 75% of the foreseen students attended the training, and the participation in the programme of redundant workers whereas the courses were exclusively designed for active employees. In its letter, the Commission acknowledged that the grant had been partly reduced as a result of the fact that two of the participants were EU citizens who did not have Spanish nationality. The Commission considered that this decision was incorrect, and drew the attention of the responsible Spanish authorities to this fact. As a result, a recommendation was made to the Employment Unit of the regional government of Madrid to the effect that the complainant should be reimbursed for the amount of the grant corresponding to these two students and that future programmes should not include references to nationality.

206

As regards the other reasons for the reduction of the grant, the Commission took the view that the responsible Spanish authorities had properly justified them, and therefore that these authorities appeared to have acted correctly. It noted that should the complainant have any disagreement with that assessment, he could make use of the means of redress afforded to him by the Spanish legal system.

THE DECISION 1. The Commission's alleged failure to provide information 1.1 The complainant alleges that, several months after he lodged a complaint with the Commission, its services had not furnished him with any information on the handling of the case. His complaint to the Commission, dated 28 July 2003, concerned the decision of the government of the region of Madrid (Spain) to reduce the amount of a grant financed through the EU's European Social Fund (ESF) for the organisation of a number of training courses for employees. According to the complainant, the only communication he received from the Commission thereafter was an acknowledgement of receipt dated 7 August 2003. 1.2 The Commission argues that, having carried out an assessment of the case, it came to the conclusion that the regional government of Madrid based its decision to partially withdraw the grant on the following reasons: the complainant only organised three of the five courses initially foreseen and he only justified expenses for EUR 2 006 68. The institution regrets that its services did not inform the complainant of this assessment. In a further letter sent to the complainant, a copy of which was sent to the Ombudsman, the institution notes that, following an inquiry with the responsible Spanish authorities, it concluded that there were a number of reasons which may have justified the reduction in the amount of the grant, and mentioned irregularities in the co-ordination of tasks, as well as the quality and number of students. The institution also acknowledged that the grant had been partly reduced as a result of the fact that two of the participants were EU citizens who did not have Spanish nationality. The Commission considered that this decision was incorrect, and drew the attention of the responsible Spanish authorities to this fact. As a result, a recommendation was made to the Employment Unit of the regional government of Madrid to the effect that the complainant should be reimbursed for the amount of the grant corresponding to these two students and that future programmes should not include references to nationality. 1.3 The Ombudsman notes at the outset that, in its role of "Guardian of the Treaty" under Article 211 of the EC Treaty, the Commission has to ensure that Community law is applied. In the framework of Community assistance, the Commission has to exercise this role in line with the so-called partnership principle. Accordingly, and

207

as laid out in the rules governing the activities of EU Structural Funds, Community operations are to be carried out through close consultations between the Commission, the Member State concerned, and its competent authorities and bodies, at national, regional or local levels. This partnership must be conducted in full compliance with the respective institutional, legal and financial powers of each of the partners(1). In application of the partnership principle, a clear division of responsibilities is established among the different actors as regards the distribution of ESF funds and their eventual reimbursement. Thus, the Member States shall, in the first instance, bear responsibility for investigating irregularities, acting upon evidence of any major change affecting the nature or conditions for the implementation or supervision of assistance, and making the financial corrections required. Nevertheless, the Commission may intervene if, after completing the necessary verifications, it concludes that a Member State has not complied with its obligations. In those cases, the Commission may carry out any necessary correction, if appropriate(2). 1.4 In monitoring the use of EU financial assistance, the Commission may be called to verify a particular operation financed with ESF funds, either at its own initiative or at the request of a third party. The Ombudsman acknowledges that in these cases, the potentially concerned citizens should have the right to have their affairs handled within a reasonable time, as enshrined in Art. 41 (1) of the Charter of Fundamental Rights of the European Union(3), and Art. 17 (1) of the European Code of Good Administrative Behaviour(4). 1.5 From the available information, it appears that, on 28 July 2003, the complainant informed the Commission of a number of irregularities regarding the distribution of ESF funds by the regional authorities of Madrid. Having acknowledged receipt of this information on 7 August 2003, the institution did not contact the complainant directly until 14 December 2004, and only following the Ombudsman's inquiry. Even though the Commission has stated that it carried out a first assessment of the problem, it appears that this information was never forwarded to the complainant. 1.6 The Ombudsman notes, however, that, as a result of his inquiry, the Commission furnished some of the information requested by the complainant in its opinion of 22 June 2004. The Ombudsman is also mindful of the fact that the Commission has acknowledged, and expressed regret for the fact, that it did not contact the complainant earlier to provide him with its first assessment. In view of the above, the Ombudsman does not consider it justified to pursue any further inquiries as regards this case. 1.7 The Ombudsman notes that the Commission has not mentioned any criteria setting out the procedure which its services ought to follow in situations concerning complaints from citizens regarding the use of EU financial assistance. The Ombudsman suggests that, with a view to improving the efficiency and transparency

208

of its relationship with citizens, the Commission could consider establishing and publicising procedures for receiving and handling complaints concerning the use of EU financial assistance, analogous to those applicable in its Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(5). The Ombudsman will address a further remark to the Commission to this effect below. 1.8 In his observations on the Commission's opinion, the complainant has raised a number of issues regarding some of the Commission's arguments in support of the decision taken by the responsible Spanish authorities. The complainants criticism of the Commission's reasoning constitutes, in effect, a new allegation. Since this allegation was not part of the original complaint, the Ombudsman cannot deal with it in the framework of the present inquiry, which only concerns the alleged failure on the part of the institution to inform the complainant. Should the complainant consider that the Commission's reasoning is inadequate, he is free to submit a new complaint to the Ombudsman, after having made the appropriate prior approaches to the institution concerned. 2. Conclusion In view of the results of his investigation, the Ombudsman considers that no further inquiries into this complaint are justified. He therefore closes the case. The President of the Commission will also be informed of this decision.

FURTHER REMARK The Ombudsman notes that the Commission has not mentioned any criteria setting out the procedure which its services ought to follow in situations concerning complaints from citizens regarding the use of EU financial assistance. The Ombudsman suggests that, with a view to improving the efficiency and transparency of its relationship with citizens, the Commission could consider establishing and publicising procedures for receiving and handling complaints concerning the use of EU financial assistance, analogous to those applicable in its Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law. Yours sincerely,

P. Nikiforos DIAMANDOUROS -------------------------

209

See Article 8, Council Regulation (EEC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds; OJ L 161, 26.6.1999, p. 1; Regulation (EC) No 1784/1999 of the European Parliament and of the Council of 12 July 1999 on the European Social Fund; OJ L 213, 13.8.1999, p.5.
(2)

(1)

Article 39, Council Regulation (EEC) No. 1260/1999.

(3)

"Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union".

"1. The official shall ensure that a decision on every request or complaint to the Institution is taken within a reasonable time-limit, without delay, and in any case no later than two months from the date of receipt. [...] 2. If a request or a complaint to the Institution cannot, because of the complexity of the matters which it raises, be decided upon within the above mentioned time-limit, the official shall inform the author there-of as soon as possible. In that case, a definitive decision should be notified".
(5)

(4)

OJ 2002, C 244, p. 5.

210

Decision of the European Ombudsman on complaint 295/2004/JMA against the European Commission

Strasbourg, 7 April 2005

Dear Mr L., On 19 February 2004, you lodged a complaint with the European Ombudsman against the European Commission. Your complaint concerned the Commission's decision to close a formal complaint you had lodged with that institution, in which you alleged that the Spanish authorities were not complying with the existing EC Directives on health safety. On 15 December 2003, you had sent a previous complaint to the Ombudsman concerning the same subject matter (reference 168/2004/JMA), which was declared inadmissible on 13 February 2004. On 15 March 2004, I forwarded your new complaint to the President of the European Commission. The Commission sent its opinion on 23 June 2004, and I forwarded it to you with an invitation to make observations. You sent me your observations on 3 and 25 July, 29 August 2004, and 27 January 2005. I am writing now to let you know the result of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT On 15 December 2003, the complainant had first lodged a complaint with the Ombudsman against the Commission. The complaint was registered under file number 168/2004/JMA. The facts of that case were, in summary, as follows: On 17 January 2003, the complainant lodged a formal complaint with the Commission in which he generally complained against the lack of food safety in Spain, and pointed to the responsibility on this matter of a number of public authorities, private enterprises and associations. He stated that, as a result of the situation, systemic violations of the public right to health were taking place in Spain. He also explained that the existence of cartels in the food industry and their monopolistic practices were detrimental to the interests of consumers. He referred to the existing EU legislation on this matter, in particular to the provisions of Regulation 178/2002 laying down the

211

general principles and requirements of food law which, in his view, were blatantly ignored in Spain. The complainant indicated that, as an owner of a meat-processing company, he has been unable to trace the origin and health conditions of his supplies. The complaint included a number of press clipping concerning food safety in Spain, as well as copies of the complainant's correspondence with various national authorities. As regards his complaint to the Commission, the complainant argued that the institution had not properly investigated it. His complaint to the Ombudsman, however, did not include any information on his exchanges with the Commission, or the representations made by the Commission services. In view of the available information, the Ombudsman considered that the object of the complaint could not be identified, as required by Article 2 (3) of his Statute. He therefore declared the complaint inadmissible on 13 February 2004. On 19 February 2004, the complainant forwarded additional information, including some of the correspondence he had had with the Commission services regarding his formal complaint. In view of this new evidence, the Ombudsman decided to register the complainant's letter as a new complaint (reference 295/2004/JMA) and to start a new inquiry. The complainant also enclosed a copy of his original complaint to the Commission, which had been filled out on a standard Commission complaint form. In section 7 of the complaint regarding the organisation against which the complaint was addressed, the complainant referred to the Spanish administration, the regional authorities, business organisations, in particular the food industry, the Institute for the Defence of Consumers, as well as television and national press. The complainant alleged in section 8 that current practices by both private and public entities would lead to the collapse of the regulatory scheme, as a result of the lack of information given to consumers on food safety and on "traceability"(1), in breach of Regulation 178/2002/EEC [the Regulation, henceforth]. The complaint included nine enclosures concerning essays on food safety and traceability; speeches given by the complainant; announcement of a seminar being cancelled; documents from the Spanish Ministry of Agriculture on the slaughter of one animal; the development of a traceability system; examples of slaughter practices on a pig; examples of cheese production; a plan to develop a website; and a practical example of the situation of a herd of cows. The complainant also included a letter from the Commission services dated 17 November 2003, informing him of their intention to propose that the Commission close the complaint. The grounds for this decision were that some of the allegations contained in the complaint did not concern the public authorities of the Member State, and therefore the Commission was not competent under Article 226 of the EC Treaty to deal with the matter. As regards those allegations involving the Spanish authorities,

212

the Commission stated that the relevant EU rules in the Regulation would not enter into force until 1 January 2007. The complainant took the view that the manner in which the Commission had handled the complaint was inadequate because of the long delay in dealing with the case (ten months), the lack of information which he had received; and its legal interpretation of the Regulation. He noted that the Regulation also contains obligations for private firms (Articles 17, 18 and 19), and that some of its obligations were to enter into force at an earlier date, namely on 1 January 2005 (Article 18). In the light of the information submitted in the complaint, the Ombudsman opened an inquiry against the Commission. The allegation on which the Ombudsman asked the Commission to submit an opinion was the following: The complainant alleges that the Commission's decision to close the complaint he had lodged with that institution was arbitrary.

THE INQUIRY The Commission's opinion In its opinion, the Commission first described the factual and legal aspects of the case. It explained that, on 17 January 2003, the complainant submitted a formal complaint to the Commission in which he denounced the violation of the EU rules on food safety, in particular of Regulation 178/20002/EC, as a result of a "systematic obstruction and the refusal to give access to information to the detriment of consumers". The complaint was registered under file number 2003/4208. The Commission explained that, as a result of the large number of documents enclosed with the complaint, which often had to be translated, the assessment of the situation took a certain time, even though it was carried out within the normal time for the review of complaints, and therefore within the limits of good administration. As regards the aspects of the complaint concerning private firms, the Commission concluded that it had no power to intervene under Article 226 of the EC Treaty. In connection to actions undertaken by public authorities, the Commission explained that the information included with the complaint did not allow its services to clearly identify its object, in particular the allegations against the Spanish authorities. The Commission pointed out, however, that pursuant to Article 4 (3) of the Regulation concerning the communication of risks and information to consumers, Member States enjoy a transitional period to amend their national legislation until 1 January 2007. Having reviewed the situation and on the basis of the above arguments, the Commission services proposed that the case be closed. The complainant was duly informed by letter of 17 November 2003, which also invited him to submit

213

observations before the Commissions adoption of its final decision. In the absence of any comments from the complainant, the Commission closed the case on 30 March 2004. The Commission considered that its services had acted properly and that, on the basis of the information contained in the complaint, there were no grounds to initiate infringement proceedings against Spain. The complainant's observations The complainant repeated the allegations made in the complaint. He stressed that the Commission's interpretation of Article 4 (3) of the Regulation was overly lax. He considered that these provisions could be implemented in a fairly short period of time, and explained that the technical means to trace the existence of dangerous substances in food could be easily developed. In the complainant's view, the Commission chose to ignore Article 65 of the Regulation which establishes that Articles 11, 12 and 14 to 20 should apply from 1 January 2005. The complainant also noted that the Regulation imposes a number of obligations on food and feed business operators. The complainant also described in detail the failure of most national authorities involved in regulation and control of food safety to reply to his requests.

THE DECISION 1. The Commission's decision to close a complaint 1.1 The complainant lodged a formal complaint with the Commission on 17 January 2003, against the lack of food safety in Spain, and pointed to the responsibility on this matter of a number of public authorities, private enterprises and associations. According to the complainant, this situation was in breach of existing EU legislation on this matter, in particular the provisions of Regulation 178/2002 laying down the general principles and requirements of food law. On 17 November 2003, the complainant was informed of the Commissions intention to close the complaint. In his complaint to the Ombudsman, the complainant alleges that the Commission's decision to close his formal complaint was arbitrary, because of the long delay with which the case was dealt; the lack of information received; and the institution's flawed legal interpretation of the applicable EU legislation. 1.2 The Commission argues that as a result of the large number of documents enclosed with the complaint, which often had to be translated, the assessment of the situation took a certain time, even though it was carried out within the normal time for the review of complaints. The Commission also argues that, insofar as the complaint was against public authorities, the information included with the complaint did not allow its services to clearly identify its object. The Commission adds, however, that as

214

regards those allegations involving the Spanish authorities concerning its failure to inform consumers of existing risks, Member States enjoy a transitional period to amend their national legislation until 1 January 2007. Finally, the Commission explains that its services proposed the closure of the case after having considered that, on the basis of the information contained in the complaint, there were no grounds to initiate infringement proceedings against Spain. The complainant was informed of this proposal by letter of 17 November 2003 and, in the absence of any further information, the Commission closed the case on 30 March 2004. 1.3 The Ombudsman notes that, in its role of "Guardian of the Treaty" under Article 211 of the EC Treaty, the Commission has to ensure that Community law is applied. In carrying out its duty, the Commission investigates possible infringements of Community law which come to its attention largely as a result of citizens' complaints. If as a result of its inquiry, the Commission considers that a Member State has failed to fulfil its obligations under the Treaty, Article 226 gives it the power to start infringement proceedings against the responsible Member State and, eventually, to bring the matter before the European Court of Justice. 1.4 The procedures to be followed by the Commission in its handling of complaints are set out in a Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(2). The Ombudsman will therefore assess whether the specific allegations made by the complainant have any foundation in the light of the provisions of that Communication. Delay to deal with the complaint 1.5 As regards the time limit for investigating complaints, the Communication establishes in Article 8 of its Annex the following: "As a general rule, Commission departments will investigate complaints with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of the registration of the complaint by the Secretary-General. Where this time limit is exceeded, the Commission department responsible for the case will inform the complainant in writing." 1.6 From the available information, it appears that the complainant submitted his complaint to the Commission on 17 January 2003 and that, having completed its inquiry, the Commission informed him on 17 November 2003 of its proposal to close

215

the case. Accordingly, the Commission completed its examination of the complaint within the one-year rule set out in its own Communication. In the absence of any evidence which may lead one to believe that the Commission unduly deferred action on the case, the Ombudsman therefore concludes that there appears to be no maladministration as regards this aspect of the case. Lack of information 1.7 As regards the information which the complainant should receive from the Commission, the Communication establishes in Article 7 of its Annex ("Communications with the complainants") the following: "The Commission departments will contact the complainants in writing, after each Commission decision (formal notice, reasoned opinion, referral to the Court or closure of the case), of the steps taken in response to their complaint." 1.8 From the available information, it appears that the Commission addressed a number of communications to the complainant in relation to the handling of his complaint, namely an acknowledgement of receipt, the proposal to close the case, and the decision to close it. In the absence of any evidence which may lead one to believe that the Commission sought to conceal any information, the Ombudsman considers that the complainant was informed in writing of all the steps taken by the Commission in relation to his complaint, in accordance with the criteria set out in its own Communication. The Ombudsman therefore concludes that there appears to be no maladministration as regards this aspect of the case. Interpretation of Regulation 178/2002/EC 1.9 The Ombudsman notes that the general principles and requirements governing the Union's food law are laid down in Regulation (EC) no 178/2002(3). As set out in its Article 1, the Regulation provides the basis for a high level of protection of human health and consumers' interest in relation to food. It establishes common principles and responsibilities, the means to provide a strong science base, efficient organisational arrangements and procedures to underpin decision-making in matters of food and feed safety. It therefore lays down the general principles governing food and feed in general, and food and feed safety in particular, at the Community and national levels. The main provisions of the Regulation concerning the protection of consumers' interests and the dissemination of information are included in Articles 8, 9 and 10. Article 8 states that food law must aim at the protection of the interests of consumers, and provide a basis for consumers to make informed choices in relation to the foods they consume. Section 2 of the Regulation, including Articles 9 and 10, concerns the "Principles of Transparency" and lays down the need for an open and transparent public consultation, directly or through representative bodies, during the preparation,

216

evaluation, and revision of food law. In the event that food or feed may present a risk for human or animal health, Article 10 requires that authorities take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or feed, the risk that it may present, and the measures to be taken to prevent, reduce or eliminate that risk. In order to comply with the above provisions, Article 4 (3) of the Regulation requires that, "[e]xisting food law principles and procedures shall be adapted as soon as possible and by 1 January 2007 at the latest [...]". 1.10 Having reviewed the contents of the complaint lodged with the Commission, it appears that the specific allegations made by the complainant were laid down in section 8 of the complaint. The complainant briefly stated that current practices by both private and public entities would lead to the collapse of the regulatory scheme, as a result of the lack of information given to consumers on food safety and on traceability, in breach of the Regulation. The additional enclosures included with the complaint did not appear to add any further information to the content of these allegations. The Ombudsman notes that, in response to these allegations, the Commission argued that the information did not allow its services to identify the object of the complaint, and that as regards the complainant's concerns on the communication of risks and information to consumers, the relevant provisions of the Regulation would not be applicable since Member States had a transitional period to amend their national legislation until 1 January 2007. 1.11 The Ombudsman has carefully considered the provisions of the Regulation, the specific allegations set out by the complainant in his formal complaint to the Commission, and the legal analysis carried out by the institution in response to these allegations. Taking into consideration the nature of the allegations put forward by the complainant, the Ombudsman finds that the Commission was entitled to consider that the object of the complaint was unclear, and that the only specific allegations appeared to be related to the failure of the Spanish authorities to act properly as regards the communication of risks and the information to consumers. On the basis of that judgement, the Ombudsman finds that the Commission's reliance on Article 4 (3) of the Regulation which gives Member States a transitional period to amend the relevant national legislation until 1 January 2007 appears to be reasonable. The Ombudsman therefore takes the view that the Commission acted within its legal authority when it decided to close the case after having considered that, on the basis of the information contained in the complaint, there were no grounds to initiate infringement proceedings against Spain. The Ombudsman therefore concludes that there appears to be no maladministration as regards this aspect of the case.

217

2. Conclusion On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------As defined in Article 3 (15) of Regulation 178/2002/EC, "traceability" means the ability to trace and follow a food, feed, food-producing animal or substance intended to be, or expected to be incorporated into a food or feed, through all stages of production, processing and distribution.
(2) (1)

OJ C 244 of 1.10.2002, p. 5.

Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety; OJ L 031 , 01/02/2002, p.1.

(3)

218

Decision of the European Ombudsman on complaint 338/2004/OV against the European Commission

Strasbourg, 5 July 2005

Dear Mr D., On 4 February 2004, you made a complaint to the European Ombudsman on behalf of the Europese Esperanto Unie, concerning alleged linguistic discrimination by European organisations that are fully or partially financed by the European Commission. On 25 February 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 28 May 2004. I forwarded it to you with an invitation to make observations, which you sent on 28 July 2004. On 28 October 2004, I sent a letter of further inquiries to the Commission. The Commission sent its additional opinion on 13 December 2004. I forwarded it to you with an invitation to make additional observations if you so wished. No observations have been received from you. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The present complaint is lodged by the European Esperanto Union ("Europese Esperanto Unie"), based in Rotterdam, and concerns alleged linguistic discrimination by European organisations that are fully or partially financed by the European Commission. According to the complainant, the relevant facts of the case are as follows: On 5 April 2002, the World Esperanto Association made a complaint (ref. 659/2002/IP) to the European Ombudsman about alleged linguistic discrimination by the above-mentioned organisations, which regularly publish vacancies in which "English mother tongue" or "English native speaker" is required. The European Esperanto Union has registered more than 700 of these announcements. In his decision of 24 February 2003, the European Ombudsman welcomed "the fact that the Commission has taken actions to avoid that discriminatory job announcements on the ground of language are published in the future". The complainant observes however that various organisations continue to publish this kind of discriminatory announcement, and that the Commission has neither taken legal
219

action, nor decided to stop financing organisations that publish discriminatory announcements. The complainant referred to some recent examples of discriminatory announcements published in November and December 2003. As the complainant did not receive an adequate answer from the Commission, he contacted several MEPs, who put several written questions about the matter to the Commission. On 4 February 2004, the complainant made the present complaint to the Ombudsman, claiming that the Commission: 1. should consider as illegal discrimination, the publication of job advertisements with the criteria "English mother tongue" or "English native speaker" by European organisations that are partially or fully financed by the Commission and by companies that have contracts with the Commission; 2. should take steps, including withholding of financing, against the above mentioned European organisations and companies which discriminate on the basis of the above criteria; and 3. should make a thorough study of linguistic discrimination by the above mentioned European organisations and companies. As the Commission had already accepted the first claim in the framework of the inquiry into complaint 659/2002/IP, the Ombudsman informed the complainant that he had requested the Commission to submit an opinion only on the two other claims.

THE INQUIRY The Commission's opinion The Commission firstly reiterated that, in its reply to complaint 659/2002/IP, it considered that a "mother tongue" or "native speaker" condition contained in recruitment announcements by any employer is not acceptable under the Community rules on free movement of workers. The Commission is monitoring cases which concern actions of national authorities. One infringement procedure was initiated in relation to job offers published by national authorities. It was closed after the authorities of the Member State concerned made it clear that they share the opinion of the Commission and that circulars had been issued to avoid such job offers being published in the future. However, the Commission is not competent to start proceedings against private companies and NGOs in relation to Community law on free movement of workers. Such individual cases need to be evaluated by the national courts from the point of view of national law implementing Community law on free movement of workers.

220

The Commission has confirmed this position repeatedly in letters to the complainant of 10 July 2002, 15 April and 14 May 2003, in replies to 13 written parliamentary questions, as well as in a letter from Commissioner Diamantopoulou to Mr Glyn Ford MEP. The current complaint focuses on European organisations that are partially or fully financed by the Commission and companies that have contracts with the Commission. In its comments on complaint 659/2002/IP, the Commission has already provided information on actions taken towards private companies and NGOs which have financial relations with the Commission. Since the reply of 25 September 2002, the following additional actions have been taken: Following a note from the Director-General of DG Employment and Social Affairs of 3 April 2003, and in view of the outcome of the first complaint (659/2002/IP) to the Ombudsman filed by the World Esperanto Association, the Secretary General drew once more the attention of the Commission services to this issue and requested them to continue to take the necessary actions in relation to their interlocutors with a view to eliminating this problem in the future. There is a note of 13 May 2003 from DG Personnel and Administration to the Heads of Administration of the Agencies drawing their attention to the problem. The Commission wrote to private companies (e.g. recommending that they take this element into account. Ogilvy, Intrasoft)

As a follow-up to the information provided in the framework of complaint 659/2002/IP, DG EMPL will, from now on, insert in all its calls for tender a clause drawing the potential contractors' attention to the illegality of such native speaker clauses. This measure is foreseen in the new version of the internal procedures manual of DG EMPL for procurements. Unfortunately, this version was delayed due to the necessary adaptation to the new Financial Regulation. This manual was issued, finally, in May 2004.

In relation to the other contracts and grant agreements, the Commission made the following comments: In accordance with the Financial Regulation (Articles 93(1), b and 114), it must be recalled that candidates, tenderers or applicants will be excluded from participation in a procurement procedure or a grant award procedure "if they have been convicted of an offence concerning their professional conduct by a judgement which has the force of res judicata". The new Directive on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts, adopted by the European Parliament and the Council on 3 February 2004(1), explicitly mentions in its preamble that the violation of national provisions implementing Council Directives concerning equal treatment of workers will be considered as such an offence.

221

As regards grants, Article II.1 (Responsibility) of the model grant agreement provides that "the beneficiary will have sole responsibility for complying with any legal obligations incumbent on him". In conformity with paragraph 4, "the beneficiary will bear sole liability vis--vis third parties ()". It is thus clear from these clauses that contractors and beneficiaries must meet the legal obligations incumbent on them according to EC law or national law, including in the field of equal treatment and non-discrimination of workers. It is first up to the national jurisdictions to evaluate individually the alleged cases of linguistic discrimination and then up to the Commission services to take the relevant measures against the contractors or beneficiaries foreseen in the Financial Regulation or the contract/grant agreement. Taking into account the existing regulations, no further action from the side of the Commission seems therefore to be necessary. The complainant's observations The complainant maintained the complaint. He stated that there were no new or satisfactory elements in the Commission's opinion. He made, in summary, also the following points: Although the Commission is formally accepting in its opinion that conditions such as "English native speakers" contained in recruitment announcements are discriminatory, it has failed to take any legal action or internal administrative action against discriminating persons or bodies funded by the Commission. No action has been undertaken by the Commission, following notification of specific cases of discrimination by European associations or organisations, to determine the nationality of the person finally appointed to the position. The complainant thus finds the Commission's opinion unsatisfactory as it does not recognise the need to take action. Further inquiries After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman considered that further inquiries were necessary. More particularly, the Ombudsman asked the Commission to reply to the following questions: a) What obstacles, if any, would prevent the Commission from withholding financing from organisations and companies that publish discriminatory job announcements? b) What obstacles, if any, would prevent the Commission from making it a contractual condition of Community funding that the recipient of such funding

222

shall not publish job announcements which, if published by a public body, would constitute unlawful discrimination under Community law? The Commission's additional opinion The Commission first reacted to the complainant's observation that there appeared to be no new or satisfactory element in the Commission's opinion. New essential elements have been introduced, particularly with regard to the exclusion and eligibility conditions laid down in the new Financial Regulation which entered into force on 1 January 2003, and with regard to the content of the "responsibility clauses" of the model contracts and model grant agreements adopted by the Commission (decision C(2003)5144 of 23 December 2003, and decision C(2004)2814 of 23 July 2004). The Commission has always stated that a "mother tongue" or "native speaker" condition contained in recruitment announcements by any employer is not acceptable under Community rules on free movement of workers. However, the formulation "native speaker or person with an equivalent knowledge", i.e. a requirement of a perfect knowledge cannot be seen as illegitimate under Community law, provided that a very high level of knowledge of a specific language is necessary for the specific post. The job provider has to justify the necessity of this requirement. However, the Commission already recommended in its reply to written question E-0941/02 the use of a terminology such as "perfect or very good knowledge of a specific language" as a condition of access to posts for which a very high level of knowledge of a specific language is necessary. The position of the Commission is based on a legal evaluation of the issue. As regards action taken, the Commission also mentioned that, on the basis of a complaint sent by the European Esperanto-Union, the Commission started an infringement procedure against Belgium in relation to job-offers published by Belgian authorities in 2002, namely by the city of Lige. Before closing the infringement procedure on 15 October 2003, the Commission sent a letter to the complainant on 7 April 2003 in which it informed the complainant about the developments in the procedure and its intention to close the case. It gave the complainant the opportunity to send new information within a month. Since then, the Commission has not received information about any new discriminatory job offer published by the Belgian authorities. As regards question a) of the Ombudsman's request for further information, the Commission stated that Articles 93 and 114 of the Financial Regulation establish the exclusion situations (eligibility criteria) in which candidates, tenderers or applicants must be excluded from participation in contract or grant award procedures. Furthermore, candidates, tenderers or applicants must certify that they are not in one of those situations. Amongst other exclusion situations, Article 93(1) (b) and (c) of the Financial Regulation provides that candidates, tenderers or applicants shall be excluded from

223

participation in a procurement procedure if "they have been convicted of an offence concerning their professional conduct by a judgement which has the force of res judicata" or if "they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify". Point 43 of the preamble of Directive 2004/18/EC of 31 March 2004 on the co-ordination of procedures for the award of public contracts further clarifies that non-observance of national provisions implementing the Council directives concerning equal treatment of workers, which has been the subject of a final judgement or a decision having equivalent effect, may be considered an offence concerning the professional conduct of the economic operator or grave misconduct. Article 134 of the Implementing Rules of the Financial Regulation lays down the means of proof acceptable to the Commission. According to Article 93 (1)(b) the "production of a recent extract from the judicial record or, failing that, a recent equivalent document issued by a judicial or administrative authority" is to be accepted as satisfactory evidence. In conclusion, the Commission is thus obliged to exclude candidates, tenderers or applicants who are in one of the situations mentioned in Article 93(1) (b) and (c) of the Financial Regulation for publishing discriminatory job announcements, if they have been the subject of a final judgement or a decision having equivalent effect on the basis of national provisions implementing the Council directives concerning equal treatment of workers. Nevertheless, as professional misconduct may arise from a large variety of situations, it is not possible to mention specifically each of those situations in the procurement documents or calls for proposals. Candidates, tenderers or applicants must certify that they are not in that situation by producing their judicial record or, failing that, a recent equivalent document. As regards the Ombudsmans question b), the Commission stated that, as regards the model contracts and grant agreements recently adopted by the Commission, they include provisions to terminate the contract or grant agreement, without any indemnity on the part of the Commission, if the contractor or beneficiary is found guilty of an offence involving his professional conduct by a judgement having the force of res judicata or if he is guilty of grave professional misconduct proven by any justified means. These provisions and the conditions for application are similar to Article 93(1) (b) and (c) of the Financial Regulation. The above-mentioned model contracts and grant agreements specify that the contractor/beneficiary shall have sole responsibility for complying with any legal obligations incumbent on him. They do not include, however, a specific termination clause in case the beneficiary publishes discriminatory job announcements (the general termination clause would apply), just as they do not specifically mention other equivalent unlawful practices which are beyond the general and specific scope of the contracts or grant agreements. As contracts or grant agreements are already bound by Community law and regulated by the national laws, it does not appear necessary or appropriate to establish

224

conditions that are not directly linked to the subject matter of the contract, but that are subject to the general legal framework. Furthermore, the multiplication of special clauses to cover very specific situations outside the scope of the contract would complicate the content and structure of the contracts and grant agreements, without necessarily implying a better application of the provisions concerned or an increased protection of the potential subjects of those clauses. Indeed, all Community policies may be the subject of special clauses, giving rise to an unlimited number of contractual conditions that would make contracts and grant agreements both unworkable and superfluous, since they are already covered by the general applicable laws. The consequence of the previous point could probably be a decrease in the level of competition, as potential contractors or beneficiaries would be discouraged from participating in the Commission's contract and grant award procedures. That being contrary to the principles of proportionality and maximum competition, as laid down in Article 89 of the Financial Regulation, and in general to the principles of efficiency and sound financial management (Article 27 of the Financial Regulation), the inclusion of such contractual clauses does not appear acceptable. In the light of the above, the Commission considers that its services must continue to apply the relevant provisions laid down in the new Financial Regulation and the corresponding measures foreseen in the model contracts and grant agreements recently adopted by the Commission, the national jurisdictions remaining the sole instances competent to evaluate individually the alleged cases of linguistic discrimination. The complainant's additional observations The complainant made no additional observations on the Commission's opinion.

THE DECISION 1. Claim that the Commission should take action against organisations and companies that discriminate on the basis of certain criteria 1.1 The complainant claims that the Commission should take steps, including withholding of financing, against European organisations that are partially or fully financed by the Commission and by companies that have contracts with the Commission, and which discriminate on the basis of the criteria "English mother tongue" or "English native speaker" contained in job advertisements. 1.2 In its opinion, the Commission indicated the latest measures it has taken since its reply of 25 September 2002 to the complaint 659/2002/IP on the same matter. The Commission referred to notes prepared by DG Employment and Social Affairs and DG Personnel and Administration drawing the attention of the Commission's services

225

and the Heads of Administration of the Agencies to this issue, to letters sent to private companies, and to a new clause inserted in all calls for tenders organised by DG EMPL, drawing the potential contractors' attention to the illegality of native speaker clauses. The Commission also observed that, in relation to other contracts and grant agreements, in accordance with the Financial Regulation (Articles 93 and 114), candidates, tenderers or applicants will be excluded from participation in a procurement procedure or a grant award procedure if they have been convicted of an offence concerning their professional conduct by a judgement which has the force of res iudicata. The Commission pointed out that the new Directive 2004/18/EC on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts explicitly mentions in its preamble that the violation of national provisions implementing Council Directives concerning equal treatment of workers will be considered as such an offence. The Commission also clarified that it is for the national jurisdictions to first evaluate individually the alleged cases of linguistic discrimination and only later for the Commission services to take the relevant measures against the contractors or beneficiaries foreseen in the Financial Regulation or the contract/grant agreement. 1.3 In reply to the Ombudsman's question concerning the possible withholding of financing from organisations and companies that discriminate, the Commission referred again to the applicable provisions of the Financial Regulation and of Directive 2004/18/EC, stating that the Commission is obliged to exclude candidates, tenderers or applicants who are in one of the situations mentioned in Article 93(1) (b) and (c). The Commission however pointed out that professional misconduct may arise from a large number of different situations and argued that it is not possible to mention each of those situations specifically in the procurement documents or calls for proposals. In reply to the Ombudsman's second question concerning a possible contractual condition of not publishing discriminatory job announcements, the Commission argued that the multiplication of special clauses to cover very specific situations outside the scope of the contract would complicate the content and structure of the contracts and grant agreements without necessarily implying a better application of the provisions concerned, or an increased protection of the potential subjects of those clauses. The Commission also argued that the inclusion of such contractual clauses could have negative effects on competition. 1.4 On the basis of the above, the Ombudsman makes the following findings: In his decision of 24 February 2003 in case 659/2002/IP, the Ombudsman welcomed the fact that the Commission has taken actions to avoid that discriminatory job announcements on the ground of language are published in the future. The Ombudsman however encouraged the Commission to continue and enhance its struggle against the said discrimination.

226

1.5 The Ombudsman has carefully examined both the Commission's opinions including the enclosures - and the various latest actions taken by the Commission to address the matter of the discriminatory job announcements. It appears from the documents that the Commission has continued to take action against this kind of discrimination. 1.6 This appears firstly from a note of 3 April 2003 from the Director General of DG EMPL to the Secretary General of the Commission. In this note, the Director General, referring to the Ombudsman's decision of 24 February 2003, asks the Secretary General to draw once more the attention of the Commission's services to the matter, requesting that they take the necessary actions. On 7 May 2002, the Secretary General had already acted on a first note from the Director General of DG EMPL by sending it to the Directors Generals and the Heads of Unit of the Commission. On 13 May 2003, DG Personnel and Administration sent a note on the matter also to the Heads of Administration of the Agencies. 1.7 The Ombudsman welcomes the action taken by DG EMPL to insert in all its calls for tender a clause drawing the potential contractors' attention to the illegality of native-speaker clauses, a measure which is contained in the new version of the internal procedures manual of DG EMPL for procurements. 1.8 As regards other contracts and grant agreements, the Ombudsman notes that, on the basis of the information communicated by the Commission, it is obliged, in accordance with Articles 93 and 114 of the Financial Regulation, to exclude candidates, tenderers or applicants from participation in contract or grant award procedures if they have been convicted of professional misconduct offences. The Commission's recently adopted model contracts and grant agreements furthermore include similar provisions. 1.9 The Ombudsman however notes that these are general provisions and that the model contracts and grant agreements do not contain more specific stipulations concerning the prohibition of discriminatory job advertisements in particular. The Ombudsman considers that the arguments put forward by the Commission against the inclusion of such contractual clauses do not appear to be unreasonable. 1.10 The Ombudsman also notes that, in the present situation, the Commission can only exclude candidates, tenderers or applicants from contracts or grant award procedures on the condition that there is a national judicial authority which condemned the company or organisation. In this regard, the Ombudsman considers it reasonable, in view of the principle of subsidiarity, for the Commission to take the view that alleged cases of linguistic discrimination should be evaluated at national level. The Ombudsman also notes, however, the Commissions view that a "mother tongue" or "native speaker" condition contained in recruitment announcements by any employer is not acceptable under the Community rules on free movement of workers. The Ombudsman points out in this regard that the Commission could, if it receives evidence of such linguistic discrimination by one of its contractors or beneficiaries,

227

transmit that information to the relevant national authority with responsibility for dealing with the matter, or provide the person submitting the evidence with the contact details of that authority. The Ombudsman will make a further remark to this effect. 1.11 On the basis of the above analysis, the Ombudsman finds no maladministration by the Commission. 2. Claim for a study on linguistic discrimination by organisations financed by the Commission 2.1 The complainant claims that the Commission should make a thorough study of linguistic discrimination by the European organisations that are partially or fully financed by the Commission and by companies that have contracts with the Commission, and which discriminate on the basis of the criteria "English mother tongue" or "English native speaker" contained in job advertisements. 2.2 The Commission did not make a specific comment on this claim, but pointed out that it is monitoring cases which concern actions of national authorities and has initiated one infringement procedure in relation to job offers published by national authorities. 2.3 The Ombudsman notes from both Commission opinions that the Commission is closely following the matter of discrimination in job announcements and has brought it to the attention of its services on several occasions. The Ombudsman is not aware of any rule of principle that would require the Commission to undertake a specific study of the kind mentioned by the complainant. No maladministration was thus found with regard to this aspect of the case. 3. Conclusion On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

FURTHER REMARK The Commission could, if it receives evidence of linguistic discrimination by one of its contractors or beneficiaries, transmit that information to the relevant national authority with responsibility for dealing with the matter, or provide the person submitting the evidence with the contact details of that authority.

228

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

P. Nikiforos DIAMANDOUROS ------------------------Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 2004 L 134/114.
(1)

229

Decision of the European Ombudsman on complaint 471/2004/OV against the Council of the European Union

Strasbourg, 31 May 2005

Dear Mr D., On 10 February 2004, you made a complaint to the European Ombudsman against the Council of the EU, concerning the follow-up of my decision of 19 December 2003 in complaint 1200/2003/OV. The latter complaint concerned the termination of your contract of employment as a civilian IT expert in the European Union Police Mission (EUPM) in Sarajevo. On 17 March 2004, I forwarded the complaint to the Secretary-General of the Council, as well as to the Head of the European Union Police Mission in Bosnia and Herzegovina (EUPM). The Council sent its opinion on 11 May 2004. I forwarded it to you with an invitation to make observations, which you sent on 19 July 2004. As I had received no reply from the Head of the EUPM, I wrote again to him on 20 July 2004 requesting views on your complaint. The EUPM sent its opinion on 24 August 2004. I forwarded it to you with an invitation to make observations, which you sent on 13 October 2004. On 31 January 2005, I wrote to the Secretary-General of the Council in order to request the Council's assistance in relation to one aspect of your complaint, and informed you accordingly in a letter of the same day. On 20 February 2005, you wrote a letter thanking me for my effort to find a solution to your case. The Council sent its additional opinion on 1 March 2005 and I forwarded it to you with an invitation to make observations, which you sent on 21 March 2005. The Head of the EUPM sent an additional opinion on 7 April 2005 which I forwarded to you with an invitation to make observations, which you sent on 3 May 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT This is the follow-up of complaint 1200/2003/OV against the Council. The complainant in that case had worked for the European Union Police Mission (EUPM) in Sarajevo as a civilian IT expert. His contract was for the period 1 July to 31 December 2002. He complained that the administration of the Planning Team of the EUPM had terminated his contract as from 8 December 2002, without providing any reasons, and on the basis of unsubstantiated allegations concerning his alleged
230

relationship with a woman from Moldavia. The complainant claimed that the Council should clear him of the allegations against him and that he should receive his salary for the whole month of December 2002. In point 2.6 of his decision of 19 December 2003, the Ombudsman made the following critical remark: "Article 41 of the Charter of Fundamental Rights of the European Union (right to good administration) includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. On the basis of the evidence available to the Ombudsman, it appears that the complainant was never given the opportunity to express his views on the supposed facts which formed the basis of the disciplinary action against him. This constitutes an instance of maladministration". As regards the complainant's claims, the Ombudsman, in point 3.2 of his decision, suggested that the most useful course of action would be for the complainant to address his claims directly to the Council, which could consider them in the light of the Ombudsman's findings and conclusion in point 2.6 of the decision, which is quoted above. In case of an unsatisfactory reply from the Council, the complainant would then have the possibility to take the case to a court of competent jurisdiction, or to make a new complaint to the Ombudsman. On 10 February 2004, the complainant wrote back to the Ombudsman making a new complaint. According to the complainant, the relevant facts were as follows: On 29 December 2003, the complainant wrote to the Secretary-General of the Council, making the above claims whilst referring to the Ombudsman's decision and the critical remark. The Council replied on 22 January 2004, rejecting the complainant's claims on the ground that the General Secretariat of the Council was not involved in the complainant's appointment and dismissal. The Council observed that it was sending a copy of its letter, together with the complete file concerning the complaint to the Ombudsman, to the Head of the EUPM in Sarajevo and suggested that the complainant address his requests to him. According to the complainant, the Council does not want to take any responsibility and forwarding his file to the Head of the EUPM would only delay the procedure. In his complaint to the Ombudsman, the complainant, referring to his letter of 29 December 2003 to the Council, claims a) that the Council should clear him of all allegations against him and b) that he should receive one month of salary (compensation for the expenses of December 2002 and the rest of the salary for that month).

231

THE INQUIRY The Council's opinion The Council observed that, as a consequence of the Ombudsman's decision of 19 December 2003, it sent a letter dated 22 January 2004 to the complainant explaining why it cannot agree to his requests. In its letter, the Council explained that "the powers legally entrusted to the Head of Mission comprise the day to day management of operations such as the recruitment or dismissal of contractual staff". The Council also informed the complainant that it had sent a copy of this letter, together with the complete file concerning his complaint to the Ombudsman, to the Head of the EUPM, and that the complainant should address his requests to him. In his new complaint of 10 February 2004, the complainant does not present any new facts or evidence but reiterates his previous request (to be cleared of allegations of wrongdoing and to be paid one month of salary). The Council has already answered this request and explained in detail its position. The complainant himself acknowledges that his complaint is and always was directed against the EUPM. The Council transmitted a copy of its opinion to the Head of the EUPM in Sarajevo. The opinion of the Head of the EUPM The documents supplied to the Ombudsman by the complainant included a copy of the Councils letter to the complainant of 22 January 2004, in which the Council stated that it was sending a copy of its letter, together with the complete file concerning the complaint to the Ombudsman, to the Head of the EUPM in Sarajevo, The Ombudsman therefore also wrote directly to the Head of the EUPM to ask for his views on the complaint. In his opinion, the Head of the EUPM stated that the facts are that the Head of the EUPM Planning Team, Commissioner Frederiksen, was informed of an apparent relationship between the complainant and a Moldavian woman and as a result an investigation was initiated. The subsequent investigation concluded that the complainant was in breach of the provisions of his civilian contract with EUPM and he was dismissed from his post. No further comments were submitted concerning the complainant's claims. The complainant's observations As regards the Council's opinion, the complainant observed that the Council is the direct superior of the Police Mission, is responsible for the illegal behaviour of one of its subordinates and should take responsibility to repair the damage. Although the Council argues that the recruitment and eventual dismissal of contractual staff are part of the Head of the EUPM's powers, the complainant also complains against the

232

Council itself as several articles of the Charter of Fundamental Rights have been infringed such as Article 30 (the right of every worker to protection against unjustified dismissal, in accordance with Union law and national laws and practices), and Article 41 (the rights of defence, the right of every person to have the Union make good any damage caused by its Institutions in accordance with the general principles common to the law of the Member States). The complainant pointed out that the accusations against him were clearly noted in the dismissal letter, which constitutes a piece of evidence proving that those allegations should be considered as simple defamation. They were written down in an official document and presented as facts despite the lack of proof and in the absence of any conviction by a legal authority, contrary to Article 47 (presumption of innocence and right of defence) of the Charter. The case adversely affected the complainant's subsequent life and has marked him out as a criminal, which is preventing him from having any possibility to find work again on the international level. The Council could have made its own investigation. When the complainant was back in Belgium, the EUPM gave his personal data to a local citizen, which is a violation of privacy and contrary to Article 8 of the Charter. The complainant further pointed out that he created two websites in order to publish the whole story, as the Council appears not to be interested to repair the injustice. The complainant however still wished that an acceptable solution could be found. As regards the opinion of the Head of the EUPM, the complainant observed that it was very short and merely confirmed what the outgoing Head had stated. The justification remains summarised in the single phrase that "the subsequent investigation concluded that the complainant was in breach of the provisions of his civilian contract with EUPM and he was dismissed from the post". The conclusions of the so called investigation were never revealed to the complainant nor did he receive a copy. This behaviour violates several articles of the Charter of Fundamental Rights of the EU (Articles 8, 20, 30, 41, 48.1 and 48.2, 49). The complainant emphasised that adultery is not a crime, in his country or in other EU Member States. The Head of the EUPM, Mr Frederiksen, based the complainant's dismissal on the following article of his contract "15. () In the case of serious misconduct, the Employer reserves the right to terminate the Employee's Contract without prior written notice". What was meant by misconduct was never revealed. The complainant was marked out as a criminal and was never allowed to defend himself against the decision of the EUPM, which was taken without any legitimate proof. The complainant thus maintained his complaint and his request for compensation.

233

Further inquiries After careful consideration of the opinions and observations, the Ombudsman considered that further inquiries were necessary with regard to the complainant's second claim, namely to receive one month of salary (compensation for the expenses of December 2002 and the rest of the salary for that month). The Ombudsman noted from the file of the complaint in case 1200/2003/OV that the complainant's contract as an IT expert with the EUPM was due to expire on 31 December 2002. The complainant's contract was, however, terminated with immediate effect more than three weeks earlier, on 8 December 2002. The Ombudsman's critical remark in case 1200/2003/OV that the complainant's right to be heard had not been respected implied that the EUPM was not entitled to terminate the complainant's contract early and to dismiss him for the reason it gave. The Ombudsman therefore concluded that the complainant's claim to be paid to the end of his contract appeared to be justified. In point 2.4 of his decision of 19 December 2003 in case 1200/2003/OV, the Ombudsman considered that the Council is responsible for ensuring that the EUPMs actions respect the principle of the rule of law and the fundamental rights recognised by the European Union. On the basis of the above, the Ombudsman wrote to the Council on 31 January 2005 requesting its assistance to ensure that the complainant receives the full month's salary. The Council's additional opinion In its additional opinion, the Council reiterated that the Secretariat General of the Council was not involved in the appointment or dismissal of the complainant and that the powers legally entrusted to the Head of the EUPM comprise the exercise of operational command over the EUPM and the day to day management, naturally including the employment and dismissal of contractual staff. The Council also emphasised that its Secretariat General has done its utmost to cooperate with the Ombudsman and has sent a copy to the EUPM of all the correspondence exchanged, in order to enable the Mission also to co-operate with the Ombudsman. As regards the Ombudsman's request for assistance, the Council recalled that under Article 9 of the Joint Action of March 2002 on the EUPM, the Mission's expenditure financed by the Community budget (such as salaries) shall be managed in accordance with the Community rules and procedures applicable to the budget. In the present case, the rules provide that these payments shall be made through the authority of the Head of the EUPM. The Council therefore sent a copy of the Ombudsman's letter to

234

the Head of the EUPM calling his utmost attention to the Ombudsman's recommendation. The additional opinion of the Head of the EUPM In his opinion, the Head of the EUPM observed that, in order to bring the process initiated by the complainant to a close, and in view of the Ombudsman's request of 31 January 2005 to the Council, the EUPM will pay to the complainant a proportion of his then monthly salary (EUR 5 200), equal to EUR 3 813.35 to cover the period from 9 to 31 December 2002. In this regard, the complainant is requested to provide the EUPM Finance Office with his bank account number, including the IBAN as well as Swift Code, in order to facilitate the transfer of the payment in question. The Head of the EUPM observed, however, that making this payment shall in no way indicate or constitute acknowledgement by the EUPM of any alleged maladministration relating to the termination of the contract of employment of the complainant. The complainant's additional observations As regards the additional opinion of the Council, the complainant observed that once again the Council does not accept any responsibility for the case. According to the complainant, the Council, as the immediate hierarchical authority of the EUPM remains responsible for the actions of the EUPM, which is not entitled to infringe fundamental rights. As regards the additional opinion of the Head of the EUPM, the complainant observed that he accepted the EUPM's decision and its wish to pay him the rest of his monthly salary. When that part of his request will have been granted, the complainant will consider the case as closed with regard to the EUPM. The complainant however made some additional comments. He stated that he was disturbed by the last remark in the EUPM's additional opinion and maintained that his fundamental rights had been infringed by the EUPM.

THE DECISION 1. The scope of the Ombudsman's inquiry In his additional observations, the complainant alleges that the EUPM gave his personal data to a citizen in Belgium, in violation of Article 8 of the Charter. In order not to delay the present investigation, the Ombudsman's inquiry has been limited to the two original claims contained in the complainant's letter of 10 February 2004. The complainant has however the possibility, if he wishes to do so, to address the Council

235

directly with a request for information about the data processing rules to which the EUPM is subject. 2. The claim of the complainant to be cleared of the allegations 2.1 The complainant claims that the Council should clear him of all allegations against him. In his observations on the Council's opinion, the complainant claims that the Council could have made its own investigation. The Ombudsman understands the complainant to mean that the Council should itself have investigated the allegations that led to his dismissal. 2.2 The Council observed that, as a consequence of the Ombudsman's decision of 19 December 2003 on case 1200/2003/OV, it sent a letter dated 22 January 2004 to the complainant explaining to him why it could not agree to his requests. In its letter the Council explained that "the powers legally entrusted to the Head of Mission comprise the day to day management of operations such as the recruitment or dismissal of contractual staff". The Council also informed the complainant that it sent a copy of this letter, together with the complete file concerning his complaint to the Ombudsman, to the Head of the EUPM in Sarajevo, and that the complainant should address his requests to him. In his new complaint of 10 February 2004, the complainant did not present any new facts or evidence but reiterated his previous request, which the Council had already answered. 2.3 The Head of the EUPM stated that the facts are that the Head of the EUPM Planning Team was informed of an apparent relationship between the complainant and a Moldavian woman and as a result an investigation was initiated. The subsequent investigation concluded that the complainant was in breach of the provisions of his civilian contract with EUPM and he was dismissed from his post. 2.4 The Ombudsman recalls that his decision of 19 December 2003 on case 1200/2003/OV contained the following finding with regard to the complainant's allegation that his contract as a civilian expert with the European Union Police Mission (EUPM) was terminated without any reasons and on the basis of unsubstantiated allegations, and that his rights of defence had been violated. It seems useful to quote the relevant parts of that decision: "2.3 The Ombudsman notes that the European Union Police Mission was established by Council Joint Action of 11 March 2002. Article 4.1 of the Joint Action provides that the Head of Mission/Police Commissioner, appointed by the Council, shall exercise operational command over the EUPM and assume the day-to-day management of the EUPM operations. Article 4.4 further provides that the Head of Mission/Police Commissioner shall be responsible for disciplinary control over the personnel. Article 3.2 of the Agreement between the EU and Bosnia and Herzegovina (BiH) on the activities of the EUPM in BiH provides that the Head of Mission/Police Commissioner shall report to the Secretary-General/High Representative for the Common Foreign

236

and Security Policy through the European Union Special Representative in BiH. 2.4 In the light of the above provisions, the Ombudsman considers that the Council is responsible for ensuring that the EUPMs actions respect the principle of the rule of law and the fundamental rights recognised by the European Union. 2.5 The Ombudsman has carefully studied the documents supplied to him by the complainant and the Council. On the basis of this evidence, the facts of the case appear to be as follows: (i) The contract of employment of the complainant was signed on 26 June 2002 with the EUPM Planning Team, in accordance with Article 5.3 of the Council Joint Action of 11 March 2000 on the EUPM, which provides that "international civilian staff and local staff shall be recruited on a contractual basis by the EUPM as required". The duration of the contract was from 1 July to 31 December 2002. The termination of the complainant's contract was decided as a disciplinary measure. The documentation sent by the complainant contains a note of 12 November 2002 from the Legal Adviser of the EUPM Planning Team entitled "Recommendation on a disciplinary case". This note mentions that an internal investigation report was compiled by the Deputy Police Commissioner into alleged misconduct by the complainant. The alleged misconduct concerned the supposed relationship of the complainant with a Moldavian woman who was staying illegally in Bosnia-Herzegovina working as a dancer in two local bars and whom the complainant was supposed to have paid for "services". The note, which also refers to "commercial sexual purchasing", concluded that "(..) because of being a member of the EUPM Planning Team and thus being under an obligation not to foster any illegal activities, [the complainant] should have been more reserved to establish any kind of emotional/romantic relationship with Ms X. As having ignored a decent and reserved behaviour in this regard, [the complainant] has endangered the impeccable reputation of the EUPM Planning Team" (sic). The Legal Adviser's conclusion and recommendation was that "the behaviour of [the complainant] has been seriously inconsistent with his obligations emanating from his contract of employment. [The complainant] has severely jeopardised the reputation of the EUPM Planning Team. His actions in this regard have constituted a serious misconduct. The EUPM PT Commissioner is advised to terminate

(ii)

(iii)

237

[the complainant]'s contract with immediate effect". As the legal basis for the termination of the contract, the Legal Adviser referred to paragraph 15 of the contract, which provides that "in the case of serious misconduct, the Employer reserves the right to terminate the Employee's contract without prior written notice." The Police Head of the EUPM decided to terminate the complainant's contract as from 8 December 2002. 2.6 Article 41 of the Charter of Fundamental Rights of the European Union (right to good administration) includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. On the basis of the evidence available to the Ombudsman, it appears that the complainant was never given the opportunity to express his views on the supposed facts which formed the basis of the disciplinary action against him. This constitutes an instance of maladministration. Given that the complainant's contract was terminated more than one year ago, it is not appropriate to propose a friendly solution. The Ombudsman therefore makes the critical remark below." 2.5 As regards the complainant's claims that the Council should clear him of all allegations against him and that the Council should itself have investigated the allegations that led to his dismissal, the Ombudsman first recalls that in point 2.4 of the decision on complaint 1200/2003/OV (quoted above) he considered that the Council is responsible for ensuring that the EUPMs actions respect the principle of the rule of law and the fundamental rights recognised by the European Union. The Ombudsman points out, however, that the Council's responsibility in this regard does not necessarily imply that it has a duty to intervene in day to day operational matters regarding the EUPM, nor to organise disciplinary hearings or investigations in relation to personnel matters that are within the competence of the Head of Mission. 2.6 The Ombudsman also recalls that his inquiry into complaint 1200/2003/OV has already found that the complainants rights of defence were violated because he was not heard on the charges against him. In accordance with the principle of the rule of law, the normal position is that findings of fact made in violation of the right to be heard have no validity. The complainant is therefore entitled to regard the Ombudsmans earlier finding as clearing his name. The Ombudsman therefore considers that no further inquiries are justified into this aspect of the case. 2.7 The Ombudsman also notes that the complainants website, to which he refers in his observations, makes clear that he considers that he has been harmed by named individuals. If the complainant wants further redress on this aspect of the matter, he could pursue a case for defamation before a court of competent jurisdiction.

238

3. The claim to receive one month's salary 3.1 The complainant claims that he should receive one month's salary (compensation for the expenses of December 2002 and the rest of the salary for that month). 3.2 The Council observed that the complainant did not present any new facts or evidence in his new complaint and that it already answered to his demand. 3.3 On 31 January 2005, the Ombudsman wrote to the Council and pointed out that his critical remark in case 1200/2003/OV that the complainant's right to be heard has not been respected implied that the EUPM was not entitled to terminate the complainant's contract early and to dismiss him for the reason it gave. The Ombudsman therefore concluded that the complainant's claim to be paid to the end of his contract appeared to be justified. The Ombudsman thus requested the Council's assistance to ensure that the complainant receives the full month's salary. 3.4 In response to the Ombudsman's request, the Council recalled that under Article 9 of the Joint Action of March 2002 on the EUPM, the Mission's expenditure financed by the Community budget (such as salaries) shall be managed in accordance with the Community rules and procedures applicable to the budget. In the present case, the rules provide that these payments shall be made through the authority of the Head of the EUPM. The Council therefore sent a copy of the Ombudsman's letter to the Head of the EUPM calling his utmost attention to the Ombudsman's recommendation. 3.5 The Head of the EUPM observed that, in order to bring the process initiated by the complainant to a close, and in view of the Ombudsman's request of 31 January 2005 to the Council, the EUPM will pay to the complainant a proportion of his then monthly salary (EUR 5 200), equal to EUR 3 813.35 to cover the time from 9 to 31 December 2002. The EUPM requested the complainant to provide its Finance Office with his bank details in order to facilitate payment. In his observations, the complainant indicated that, once this payment has been made, he will consider the case as closed with regard to the EUPM. 3.6 The Ombudsman presumes that EUPM will duly make the payment that it has promised. The Ombudsman therefore considers that this aspect of the case has been settled to the satisfaction of the complainant. 4. Conclusion As regards the complainant's claim to be cleared of the allegations, no further inquiries appeared to be justified. As regards the complainant's claim to receive his salary for the month of December 2002, it appears that the matter has been settled to the satisfaction of the complainant.

239

The Ombudsman therefore closes the case. The Secretary General of the Council and the Head of the EUPM will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS

240

Decision of the European Ombudsman on complaint 518/2004/MF against the European Commission

Strasbourg, 6 December 2005

Dear Ms M., On 24 February 2004, you made a complaint to the European Ombudsman against the European Commission concerning the use of exemption from the age limit set for traineeships organised by the latter. On 30 March 2004, I forwarded the complaint to the President of the European Commission. The European Commission sent its opinion on 9 June 2004. A translation into Spanish of the Commission's reply was sent on 17 June 2004, I forwarded it to you with an invitation to make observations, which you sent on 15 July 2004. On 29 April 2005, I made a proposal to the European Commission for a friendly solution to your complaint. On 8 July 2005, the Commission sent its reply to this proposal. A translation into Spanish of the Commission's reply was sent to you on 14 July 2005. On 10 August 2005, you informed my services by e-mail that you considered that a friendly solution had been achieved. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are as follows: The complainant is a civil servant working for the town hall of Saragossa, in Spain. On 9 February 2004, she applied for a traineeship to the European Commission. Applicants were required to be less than thirty years old but exemptions were possible. As the complainant exceeded the thirty-year age limit, she requested an exemption from the age limit. On 19 February 2004, she was informed that her application had been refused on the grounds that she was over thirty years of age, without being given any further reasons. In her complaint to the European Ombudsman, the complainant alleged that the European Commission had failed to reply to her request for an exemption from the age limit.

241

The complainant claimed that her application for a traineeship should be accepted.

THE INQUIRY The Commission's opinion The opinion of the European Commission on the complaint was in summary as follows: Regarding the existence of age limits, one of the main objectives of the Commissions traineeship programme is to provide practical working knowledge to young university graduates at the beginning of their professional careers. Therefore, the traineeship programme is addressed to, and mainly focuses on, young people. Given that youth is obviously defined by age, age limits are required in the traineeship programme's eligibility criteria. It should also be pointed out that most of the other European Institutions (European Parliament, Council, European Economic and Social Committee, Committee of the Regions, etc.) have established an age limit as an admission or eligibility criterion to their own traineeship programmes. For the above objective reasons, the age limit was therefore not considered as discriminatory. The Traineeships Office did acknowledge that it had only informed the complainant of the rejection of her application due to the age limit. This was due to the wrong encoding of refusal reasons into the new computerised system (which contains several standardised categories of reasons for refusal). Consequently, the complainant was only informed that her application had been refused as she had not met the age limit criterion. However, as soon as this error had become known, an additional explanatory letter had been sent to the complainant. The reasons for which the complainant's request for exemption was refused were the following:

the complainant had not given any factual, specific or justifiable reason for an exemption; the complainant only declared knowledge of one foreign European language (French), whereas applicants from Member States were required minimally to have a good knowledge of at least two Community languages; and the complainant only indicated one specific Directorate General in her application.

In addition, the Commission noted that the current rules governing in-service training were being reviewed. Consequently, the Commission would look carefully at the preconditions (including the age limit) and, if appropriate, incorporate, any necessary modifications and clarifications.

242

The complainant's observations In her observations dated 15 July 2004, the complainant maintained her complaint and made in summary the following further comments: The Commission had only sent a letter explaining the reasons for its decision not to apply the exemption for the age limit thanks to the Ombudsman's intervention. The complainant indicated that, in her application for a traineeship, she had stated that she had a written and oral comprehension of the French language. She further enclosed with her application a certificate demonstrating that she had taken two English-language courses. The complainant deliberately indicated one Directorate General in her application for a traineeship because she was looking for specific and concrete professional experience. The complainant argued that the Commission's rules governing traineeships were unclear. On the one hand, the Commission stated in its opinion on the complaint that one of the main objectives of the Commissions traineeship programme was to provide practical working knowledge to young university graduates at the beginning of their professional careers. On the other hand, in its "decision on traineeships of 7 July 1997", paragraph 8, the Commission stated that "in-service training at the Commission is open to candidates who () are public sector employees, provided they have a university degree or equivalent diploma, or have been engaged for at least three years in advisory duties".

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the European Commission's opinion and the complainant's observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegation and claim. In accordance with Article 3 (5) of the Statute(1), the Ombudsman therefore wrote to the President of the European Commission to propose a friendly solution on the basis of the following analysis. 1. On 9 February 2004, the complainant applied for a traineeship at the European Commission. Applicants were required to be less than thirty years old but exemptions were possible. As the complainant exceeded the thirty-year age limit, she requested an exemption from the age limit. The complainant alleged that the European Commission had failed to reply to her request for an exemption from the age limit. 2. The Commission stated that the Traineeship Office acknowledged that it had only informed the complainant of the rejection of her application due to the age limit. This was due to the wrong encoding of refusal reasons into the new computerised system

243

(which contains several standardised categories of reasons for refusal). Consequently, the complainant was only informed that her application had been refused on the grounds that she had not met the age limit criterion. However, as soon as this error had become known, an additional explanatory letter had been sent to the complainant. The reasons for which the complainant's request for exemption was refused were the following: 1) the complainant had not given any factual, specific or justifiable reason for an exemption; 2) the complainant only declared knowledge of one foreign European language (French), whereas applicants from Member States were required to have a good knowledge of at least two Community languages; 3) the complainant only indicated one specific Directorate General in her traineeship application. 3. On 15 June 2004, the Ombudsman addressed a draft recommendation to the Commission in complaint 2107/2002/(BB)PB, asking it to abolish the age limit in its traineeship programme(2). 4. On 29 March 2005, the Commission informed the Ombudsman that "on 2 March 2005, in line with the European Ombudsman's recommendation, the Commission has adopted a decision on rules governing the official traineeships scheme of the European Commission (C(2005)458) in which it abolishes the age limit as one of the selection criteria for the in-service programme." 5. The Ombudsman therefore considers that the complainant's age no longer constitutes an obstacle for the admission of her application for a traineeship at the European Commission. In these circumstances, the Ombudsman takes the view that the first of the three reasons for which the complainant's request for exemption was refused by the Commission, namely that she had not given any factual, specific or justifiable reason for an exemption, is now no longer relevant. 6. The Ombudsman further notes that, in its opinion on the complaint, the Commission stated that the second reason for which the complainant's request for exemption had been refused was that the latter had only declared knowledge of one foreign European language (French), whereas applicants from Member States were required to have a good knowledge of at least two Community languages. 7. The Ombudsman observes that point 10 of paragraph "Admission and selection of trainees" of the Commission decision on traineeships of 7 July 1997, which was applicable at the date of the facts, states that "[a]pplicants must have a thorough knowledge of one Community language and a satisfactory knowledge of one other". In the present case, and in view of the information submitted to him, the Ombudsman notes that the complainant is a Spanish citizen. It appears therefore that she has a good knowledge of Spanish. The Ombudsman notes that in her observations, the complainant stated that she had indicated in her application for a traineeship that she had a written and oral comprehension of the French language and that she had enclosed with her application a certificate demonstrating that she had taken two English-language courses. The Ombudsman considers that it emerges from the above that the complainant had a good knowledge of, at least, two Community languages. In

244

these circumstances, the Ombudsman considers that the reason invoked by the Commission to refuse the complainant's request for exemption does not appear to be in compliance with its decision on traineeships of 7 July 1997. 8. The Ombudsman further notes that, in its opinion on the complaint, the Commission stated that the third reason for which the complainant's request for exemption had been refused was that the latter had only indicated one specific Directorate-General in her traineeship application. On the basis of the information at his disposal, the Ombudsman is not aware of any rule in the Commission decision on traineeships of 7 July 1997 pursuant to which candidates had to specify a specific number of Directorates-General in which they wish to make their traineeship. The Ombudsman therefore considers that it appears that the Commission has not established its argument that the application was inadmissible on the grounds that the complainant had only indicated one specific Directorate-General in her traineeship application. 9. In the light of the above, the Ombudsman's provisional conclusion is that the Commission wrongly refused the complainant's application for a traineeship or for an exemption of the age limit applicable at the date of her complaint. This could be an instance of maladministration. The possibility of a friendly solution On the basis of the above considerations and in accordance with Article 3(5) of the Statute of the European Ombudsman, the Ombudsman proposed a friendly solution between the complainant and the Commission. The friendly solution proposed consisted in the following: The Commission could review its decision to reject the complainant's application for its traineeship programme. The European Commission's response In its reply to the Ombudsman's proposal, the Commission stated that, taking into account the fact that, by adopting the new rules governing its official traineeships scheme on 2 March 2005, it had now abolished the requirement concerning age as one of the selection criteria for the in-service traineeship programme, it accepted the Ombudsman's proposal to seek a friendly solution with the complainant. The Commission would therefore exceptionally consider the complainant's application as automatically pre-selected for the in-service training session starting on 1 March 2006. The complainant's name would therefore be included in the list of pre-selected candidates, from which the Directorates-Generals and services make their final choices. It should be noted that inclusion in the list of pre-selected candidates does not

245

guarantee a place as a trainee. It was not possible to accept the complainant's application for the in-service training session period starting in October 2005 as the final selection procedure for this session was already too advanced. The complainant would be informed by e-mail and by post about the Commission's decision to include her name in the list of pre-selected candidates. The complainant's additional observations By e-mail of 10 August 2005, the complainant informed the Ombudsman's services that she considered that a friendly solution to her complaint had been achieved. She thanked the Ombudsman for his successful intervention and congratulated him for the efforts he had made to achieve a friendly solution with the Commission concerning her case.

THE DECISION 1. Alleged failure of the European Commission to reply to the complainant's request for exemption from the age limit and to accept her application for a traineeship 1. On 9 February 2004, the complainant applied for a traineeship to the European Commission. Applicants were required to be less than thirty years old but exemptions were possible. As the complainant exceeded the thirty-year age limit, she requested an exemption from the age limit. The complainant alleged that the European Commission had failed to reply to her request for an exemption from the age limit. The complainant claimed that her application for a traineeship should be accepted. 2. The Commission stated that the Traineeships Office did acknowledge that it had only informed the complainant of the rejection of her application due to the age limit. This was due to the wrong encoding of refusal reasons into the new computerised system (which contains several standardised categories of reasons for refusal). Consequently, the complainant was only informed that her application had been refused as she had not met the age limit criterion. However, as soon as this error became known, an additional explanatory letter was sent to the complainant. The reasons for which the complainant's request for exemption was refused were the following: 1) the complainant had not given any factual, specific or justifiable reason for an exemption; 2) the complainant only declared knowledge of one foreign European language (French), whereas applicants from Member States were required to have minimum good knowledge of at least two Community languages; 3) the complainant only indicated one specific Directorate General in her traineeship application. 3. On 29 April 2005, the Ombudsman made a proposal for a friendly solution to the Commission, on the basis of the following considerations: Firstly, in view of his draft

246

recommendation to the Commission in complaint 2107/2002/(BB)PB and of the Commission's decision to abolish the age limit as one of the selection criteria for the in-service traineeship programme, the complainant's age no longer constituted an obstacle for the admission of her application for a traineeship at the European Commission. Secondly, the Ombudsman considered that it emerged from the complainant's observations and the document submitted by her that she had a good knowledge of, at least, two Community languages. Thirdly, the Ombudsman stated that he was not aware of any rule in the Commission decision on traineeships of 7 July 1997 pursuant to which candidates had to specify a specific number of DirectoratesGeneral in which they wish to do their traineeship. 4. On the basis of the above, the Ombudsman made a provisional finding of maladministration by the European Commission, and proposed a friendly solution which was that the Commission could review its decision to reject the complainant's application for its traineeship programme. 5. The Commission accepted the friendly solution proposed and stated that it would exceptionally consider the complainant's file as automatically pre-selected for the inservice training session starting on 1 March 2006. The complainant's name would therefore be included in the list of pre-selected candidates, from which the Directorates-Generals and services make their final choices. The complainant will be informed by e-mail and by post about the Commission's decision to include her name in the list of pre-selected candidates. 6. In her observations, the complainant informed the Ombudsman that she considered that a friendly solution to the complaint had been achieved. 7. On the basis of the above, the Ombudsman notes that a friendly solution has been agreed between the complainant and the Commission. 2. Conclusion Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been agreed between the Commission and the complainant. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS -------------------------

247

(1)

"As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint." See the Ombudsman's website:

(2)

http://www.euro-ombudsman.eu.int/recommen/en/022107.htm.

248

Decision of the European Ombudsman on complaint 530/2004/GG against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 3 October 2005

Dear Mr X, On 23 February 2004, your company submitted a complaint against the European Commission to the European Ombudsman concerning lot H (Galileo Market Observatory - GMO) of the Galilei project. On 10 March 2004, I forwarded the complaint to the President of the European Commission. The Commission sent the English version of its opinion on 9 June 2004. After having examined this opinion, I came to the conclusion that I needed further information to deal with your company's complaint. On 21 June 2004, I therefore asked the Commission to provide this information. Your company was informed accordingly the same day. I also forwarded a copy of the English version of the Commission's opinion to your company. On 23 June 2004, I forwarded to your company a copy of the translation into German of this opinion that had arrived in the meantime. On 3 (English version) and 10 August 2004 (translation into German), the Commission sent me its reply to my request for further information. I forwarded this reply to your company on 11 (English version) and 23 August 2004 (translation into German) with an invitation to make observations on this reply and on the Commission's opinion, which your company sent on 29 September 2004. On 11 October 2004, my services contacted your company by telephone in order to ascertain whether it agreed to a proposal for a friendly solution that I intended to submit to the Commission. Your company confirmed that this was the case and furthermore informed me that English could be used as the language of the case henceforth. On 12 October 2004, I submitted a proposal for a friendly solution to the Commission. The Commission sent its opinion on 22 December 2004 and I forwarded it to your company on 5 January 2005 with an invitation to make observations, if it so wished, by 15 February 2005. No observations were received from your company by that date.
249

On 11 March 2005, I addressed a draft recommendation to the Commission in this case. You were informed accordingly the same day. The Commission sent its detailed opinion on 20 July 2005, and I forwarded it to you on 25 July 2005 with an invitation to make observations, if you so wished, by 31 August 2005. On 23 September 2005, you informed me that you did not wish to pursue the matter any further and thanked me for my efforts. In a telephone conversation with my Office on 27 September 2005, you clarified, however, that you did not intend to withdraw your complaint and that you were looking forward to the Ombudsman's decision. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The complainant, a small German company, took part in lot H (Galileo Market Observatory GMO) of the Galilei project as a sub-contractor of ESYS, the principal contractor. The project co-ordinator was a company called GAIN S.A. According to the complainant, the work that it had to carry out was completed at the end of March 2003. The final presentation of the whole project took place on 10 July 2003. The complainant submitted three cost statements ("CS") to ESYS (CS no. 1 - advance payment - on 14 December 2001, CS no. 1 - remainder - on 3 March 2002, CS no. 2 on 1 October 2002 and CS no. 3 on 1 April 2003) which were then forwarded (via GAIN) to the European Commissions Directorate-General Energy and Transport (DG TREN). Payments for these cost statements (from DG TREN via GAIN and ESYS) reached the complainant between around 5 and 10 months after their submission to ESYS (for CS no. 1 - advance payment - on 7 June 2002, for CS no. 1 - remainder on 25 October 2002, for CS no. 2 on 13 June 2003 and for CS no. 3 on 26 January 2004). According to the complainant, these delays were mostly due to the Commission, not to the intermediaries ESYS and GAIN. In two letters or e-mails dated 23 April 2003 and 8 October 2003, the complainant asked the Commission to speed up procedures. In its reply of 8 May 2003 to the first letter, the Commission referred to the "complexity" of the project. According to the complainant, the second letter was not answered at all. The complainant pointed out that as a small company, it was seriously affected by these delays. As regards the last cost statement, the complainant alleged that an amount of EUR 12 948.06 was still outstanding. According to the complainant, the Commission retained 15 % of all amounts due under the contract for the whole consortium pending its final assessment of the project. The complainant considered that the Commission was no

250

longer entitled to retain the relevant amount, since the Commission had already accepted the relevant cost statements. The complainant alleged that there had been considerable delays in payment which had caused it severe financial problems. It made the following claims: 1. The Commission should release the 15 % of the contract sum retained by it and transfer the amount of EUR 12 948.06 to the project co-ordinator or to ESYS; 2. The Commission should pay to the complainant interest on account of late payment for delays exceeding the period of 60 days foreseen in the contract.

THE INQUIRY The Commission's opinion In its opinion submitted in June 2004, the Commission made the following comments: The complainant was a sub-contractor of ESYS. There was no contractual relation between the complainant and the Commission in the framework of the relevant project. Article 3 of the Galilei grant contract between the Commission and 12 contractors (including ESYS) provided that the total amount of the advance payment and of the periodic payments should not exceed 85 % of the maximum contribution. This guarantee retention of 15 % was applied until all project deliverables (technical reports and cost statements) had been submitted to and approved by the Commission. This meant that once the Commission had paid 85 % of the total contribution foreseen in the course of the project, it could not release any other payments until all the final reports were submitted and approved. The final cost statement for the Galilei project had been submitted on 9 February 2004 and was presently being assessed. According to Article 3 (1) (c) and Article 4 (3) of Annex II of the Galilei grant contract, the Commission had 60 days to approve reports and 60 days to release the related payments after their approval. The 60 days' approval period could be suspended if the reports were incomplete or required further clarifications. Payments were made to the co-ordinator who then had to transfer them to the other contractors (normally within 30 days) who in turn transferred the amounts to their sub-contractors. According to the sub-contract between ESYS and the complainant, ESYS had 90 days to transfer the amounts to the complainant.

251

Consequently, a period of 240 days between submission of a cost statement and payment to a sub-contractor was to be considered as contractually normal. The sub-contract between ESYS and the complainant did not provide for the payment of interest in the case of late payment. This contract also specified that the total periodic payments should not exceed 85 % of the total amount of the sub-contract in order to allow 15 % guarantee retention. This retention was to be paid upon the lifting of any potential reserve by the Commission and ESYS within 30 days of the corresponding payment from the Commission to ESYS. These conditions had been accepted by the complainant. The Commission concluded from the above that it was not obliged to make any payments to the complainant or to pay interest on late payments. The Commission submitted excerpts from the two contracts mentioned above. The excerpts from the sub-contract between ESYS and the complainant are marked "Standard Subcontract for GALILEI". Further inquiries After careful consideration of the Commission's opinion, it appeared that further inquiries were necessary. Request for further information The Ombudsman therefore asked the Commission (1) to specify in detail how it had handled the final cost statement that had been submitted to it on 9 February 2004, (2) to explain when it had received the cost statements to which the complainant had referred, when it had approved them and when it had released the relevant payments to the co-ordinator and (3) to explain whether it considered that no interest was due even where the Commission failed to pay the co-ordinator within a reasonable period of time or within the periods set out in the Galilei grant contract. The Commission's reply In its reply dated 30 July 2004, the Commission stated that as regards the final cost statement that it had received on 10 February 2004, it had informed the co-ordinator on 6 April 2004 that further information was needed in order to complete the assessment. Additional information had been provided on 19 May 2004. According to the Commission, however, it had still not received all the information it had requested. The Commission stressed that the final cost statement did not include any costs relating to the complainant.

252

Cost statements had been submitted by the co-ordinator and processed as follows: Cost statement Receipt of CS Baseline date (= CS approved date from which the Commission has 60 days to make payments) 31 May 2002 30 July 2002 17 September 2002 4 December 3 February 2003 30 April 2003 2002 4 June 2003 2 November 29 December 2003 2003 Date on which Commission's account was debited 30 September 2002 20 May 2003 6 January 2004

1 2 3

The Commission explained that it did not have any obligation to pay interest on account of late payment to the complainant, as there was no contractual relation between itself and the complainant. It noted, however, that it had an obligation to pay interest on account of late payment to the co-ordinator and to the principal contractors under the conditions of Article 3 (1) of Annex II to the Galilei grant contract. According to Article 3 (1), last sub-paragraph of Annex II to the Galilei grant contract, the principal contractor and the co-ordinator were entitled to claim interest on account of late payment, at the latest within two months of receiving the late payment. The complainant's observations The Commission's opinion and its reply to the Ombudsman's request for further information were forwarded to the complainant. In its observations, the complainant pointed out that the dates mentioned by the Commission were correct. The complainant submitted, however, that the way in which the payments had been handled in the present case was not in conformity with the aims and purposes of the Commission. In this context, the complainant referred to the Ombudsman's own-initiative inquiry into the problem of late payment (OI/5/99/(IJH)/GG) and a memorandum of Mrs Schreyer (Guidelines concerning Commission payment times), a member of the Commission, according to which it should be ensured as from 2002 that 95 % of invoices are paid within 60 days and that no payment should take more than 90 days. The complainant submitted that the period for payment of 240 days to which the Commission had referred was due to the structure of the project on which it had not had any influence. It also took the view that such periods for payment were not in conformity with Directive 2000/35/EC of the European Parliament and the Council of 29 June 2000 on combating late payment in commercial transactions.

253

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the opinion, the observations and the results of his further inquiries, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegation and claims. The proposal for a friendly solution 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 complainant. The Ombudsman therefore made the following proposal for a friendly solution to the Commission: The Commission should reconsider its refusal to release the 15 % of the contract sum retained by it and to transfer the amount of EUR 12 948.06 to the project co-ordinator or to ESYS. It should also consider paying interest on account of late payment to the co-ordinator and ESYS as regards the delays in making payment for cost statements nos. 2 and 3. This proposal was based on the Ombudsman's preliminary conclusion that the Commission had failed to pay the amounts that it considered to be due under CS nos 2 and 3 within the period of 60 days foreseen in the Galilei grant contract. The Ombudsman noted that the Commission had offered neither an explanation nor an apology as regards these delays. He also arrived at the preliminary conclusion that the Commission's refusal to release the 15 % of the contract sum retained by it and to transfer the amount of EUR 12 948.06 to the project co-ordinator or to ESYS could be unfair, given that it appeared that the complainant had properly carried out its work. As regards interest on account of late payment, the Ombudsman pointed out that the Galilei grant contract provided for such interest to be paid to GAIN or ESYS. The Commission's opinion In its opinion, the Commission made the following comments: The contract had had an extremely complex structure, involving more than 90 contractors or sub-contractors. Furthermore, three amendments had been made to the contract which had also contributed to delaying payments. The Commission recognised that it should have made the payments within the 60-day periods and offered its apology for the delay. However, given the workload of administering such a contract, delays of 1.5 months and 4 days respectively could hardly be regarded as substantial delays. The retention of a part of the grant was a practice that was common to most of the Commission's grant contracts. Its purpose was to serve as a guarantee for the good

254

execution of the contract. According to Article 6 (2) of Annex II of the Galilei grant contract, if one of the principal contractors did not execute his part of the work, all principal contractors had to take all necessary measures to carry out the work incumbent on the defaulting contractor. Thus, there was a common responsibility of all contractors for the good execution of the contract, rather than a responsibility of each contractor limited to his share of the work. The early release of a partial final payment to some of the principal contractors (and via them, to their sub-contractors) who had finished the work allocated to them would not be consistent with the common responsibility of all contractors described above, and would deprive the Commission of part of its guarantee. That was why the Commission was reluctant to create a precedent by waiving its retention right. The Commission recognised that the payment delays caused by the contract provisions might be difficult to bear for an SME such as the complainant. However, the latter had been fully aware of these conditions and had accepted them when it had signed its contract with ESYS. The parties to a sub-contract were free to determine among themselves any provisions that might attenuate the negative effects of the retention clauses. In the absence of such provisions, the Commission could not be blamed for respecting the contractual clauses. As regards the payment of interest, the relevant clause in the Galilei grant contract provided that interest was payable if the principal contractor or the co-ordinator asked for such interest within two months of receiving the late payment. Since neither of these two parties had requested such payment from the Commission within that period, they could no longer claim interest. On the basis of the additional information received from the contracting parties, the assessment of the cost statements had now been finalised and the payment to the coordinator had been released, including the sum due to the complainant. The complainant's observations No observations on the Commission's opinion were received from the complainant. The Ombudsman's appraisal On the basis of the Commission's opinion, the Ombudsman concluded that no friendly solution could be achieved.

THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation On 11 March 2005, the Ombudsman addressed the following draft recommendation to the Commission:

255

The Commission should compensate the complainant for the negative effects of its delay in handling cost statements nos 2 and 3. This draft recommendation was based on the consideration that whilst the Commission's interpretation of the contractual provisions was correct, regard should be had to the fact that the sub-contract between ESYS and the complainant appeared to have been based on the "Standard Subcontract for GALILEI". The Ombudsman considered that the Commission was likely to have had full knowledge of the contents of this standard contract and that it had thus been aware that there was no provision for interest to be paid to sub-contractors in case of late payment. However, in the absence of such a clause in the sub-contract, any delay on the part of the Commission to forward payments for the work of sub-contractors did not affect the interests of either the co-ordinator or the principal contractor. The Ombudsman considered that there had therefore been no real reason why either of these two parties should have insisted that the Commission should pay the interest foreseen in the Galilei grant contract in such cases. In the Ombudsman's view, the structure of the contractual arrangement put in place by the Commission had thus made it very unlikely that interest should ever have to be paid by the Commission where it failed to forward payments due to sub-contractors within the period of time foreseen for this purpose. The Commission's detailed opinion In its detailed opinion, the Commission made the following comments: Whilst the Commission agreed that special attention should be paid to SMEs, it considered that it had sought to do so, in particular by including a special clause in Article 6.15 of the Galilei grant contract which made it possible for an early payment to be made to ESYS and for the impact of the financial guarantee to be reduced. Whilst understanding that the Ombudsman wished to protect the interests of an SME like the complainant's, the Commission did not share his conclusions. In particular, the Commission did not feel that it was responsible for the relationship between its contractors and their sub-contractors. The Commission did not require the contractors to use a particular model of subcontracting contract. The model used by ESYS had been drawn up by the co-ordinator and submitted to the Commission so that it could check whether it was in keeping with the main contract. The Commission's role had been confined to carrying out this check in an effort to ensure that the contract was executed properly; it did not establish any responsibility on the part of the Commission. On the contrary, in accordance with the principle of contractual freedom, it was not the Commission's role to impose clauses on a third-party contractual relationship. ESYS and the complainant could quite easily have negotiated specific provisions, for instance by requiring ESYS to claim interest on account of late payment from the Commission.

256

The Commission did not feel that the delays in payment were significant, given the complexity of the Galilei grant contract. No other participant had asked for interest on account of late payment. The Commission was under no obligation to pay interest to the complainant. If it were to do so, it would contravene the principle of sound financial management as there would be no legal basis for making the payment. Moreover, to act on the Ombudsman's recommendation would create a precedent which would have an adverse impact on the Commission's management of contracts. For these reasons, the Commission felt unable to act on the Ombudsman's recommendation. The complainant's observations On 23 September 2005, the complainant informed the Ombudsman that he did not wish to pursue the matter any further and thanked the Ombudsman for his efforts. In a telephone conversation with the Ombudsman's Office on 27 September 2005, the complainant clarified, however, that it did not intend to withdraw its complaint and that it was looking forward to the Ombudsman's decision.

THE DECISION 1. Alleged delays in payment 1.1 The complainant, a small German company, took part in lot H (Galileo Market Observatory GMO) of the Galilei project as a sub-contractor of ESYS, a principal contractor under the Galilei grant contract concluded with the European Commission. The project co-ordinator was a company called GAIN S.A. According to the complainant, the work that it had to carry out was completed at the end of March 2003. The complainant submitted three cost statements ("CS") to ESYS. Payments for these cost statements reached the complainant between around 5 and 10 months after their submission to ESYS. According to the complainant, these delays were mostly due to the Commission, not to the intermediaries ESYS and GAIN. The complainant alleged that there had been considerable delays in payment which had caused it severe financial problems. 1.2 In its opinion, the Commission submitted that in view of the structure of the project a period of 240 days between submission of a cost statement and payment to a sub-contractor was to be considered as normal under the Galilei grant contract. 1.3 In its reply to a request for further information, the Commission pointed out that the baseline date (i.e., the date from which the Commission had 60 days to make payments to the co-ordinator or contractor) was 30 July 2002 for CS no. 1, 3 February 2003 for CS no. 2 and 2 November 2003 for CS no. 3. Payment had been made on 30

257

September 2002 as regards CS no. 1, on 20 May 2003 as regards payment no. 2 and on 6 January 2004 as regards CS no. 3. In its observations, the complainant confirmed that these dates were correct. 1.4 It is good administrative practice that amounts that are due should be paid as quickly as possible and at least within the period foreseen for this purpose in the relevant contract. The Ombudsman notes that whereas the payment for CS no. 1 was made within the period of 60 days foreseen in the Galilei grant contract, there was a delay (more than 1 months) as regards CS no. 2 and also (less than a week) as regards CS no. 3(2). 1.5 In its reply to the Ombudsman's proposal for a friendly solution, the Commission argued that the contract had had an extremely complex structure, involving more than 90 contractors or sub-contractors, and that three amendments had been made to the contract which had also contributed to delaying payments. The Commission recognised that it should have made the payments within the 60-day periods and offered its apology for the delay. It submitted, however, that given the workload of administering such a contract, delays of 1.5 months and 4 days respectively could hardly be regarded as substantial delays. The Commission repeated this argument in its detailed opinion on the Ombudsman's draft recommendation. 1.6 The Ombudsman notes that the Commission had committed itself, in the Galilei grant contract, to making payment within 60 days after it had approved the relevant costs. There is nothing to suggest that the Commission was not sufficiently aware of the complex structure of the contract at the time when it signed this contract. If the Commission should subsequently have come to the conclusion that the abovementioned period was not sufficient, it could have proposed an amendment of the relevant clause in the contract. The Commission does not appear to have availed itself of this possibility. The Ombudsman accepts that the delays that occurred were comparatively small. However, this does not affect the conclusion that there were delays. It should further be noted that these delays occurred against a contractual background that has led the Commission to state that a period of 240 days between submission of a cost statement and payment to a sub-contractor was to be considered as contractually normal. 1.7 In these circumstances, and without having to consider the complainant's further arguments based on a memorandum of Mrs Schreyer (Guidelines concerning Commission payment times) and on Directive 2000/35/EC of the European Parliament and the Council of 29 June 2000 on combating late payment in commercial transactions, the Ombudsman arrives at the conclusion that the Commission's failure to pay the amounts that it considered to be due under CS nos 2 and 3 within the period of 60 days foreseen in the Galilei grant contract constitutes maladministration. A critical remark will be made as regards this aspect of the case.

258

2. Claim to release amount retained 2.1 The complainant claimed that the Commission should release the 15 % of the contract sum retained by it and transfer the amount of EUR 12 948,06 to the project co-ordinator or to ESYS. 2.2 In its opinion submitted in June 2004, the Commission explained that Article 3 of the Galilei grant contract between the Commission and 12 contractors (including ESYS) provided that the total amount of the advance payment and of the periodic payments should not exceed 85 % of the maximum contribution. This guarantee retention of 15 % was applied until all project deliverables (technical reports and cost statements) had been submitted to and approved by the Commission. This meant that once the Commission had paid 85 % of the total contribution foreseen in the course of the project, it could not release any other payments until all the final reports were submitted and approved. The final cost statement for the GALILEI project had been submitted on 9 February 2004 and was being assessed at the time when the opinion was submitted. The Commission further noted that the sub-contract between ESYS and the complainant also specified that the total periodic payments should not exceed 85 % of the total amount of the sub-contract in order to allow 15 % guarantee retention. This retention was to be paid upon the lifting of any potential reserve by the Commission and ESYS within 30 days of the corresponding payment from the Commission to ESYS. The Commission stressed that these conditions had been accepted by the complainant. 2.3 In its reply to the Ombudsman's proposal for a friendly solution, the Commission submitted that under the Galilei grant contract, there was a common responsibility of all contractors for the good execution of the contract, rather than a responsibility of each contractor limited to his share of the work. The early release of a partial final payment to some of the principal contractors (and via them, to their sub-contractors) who had finished the work allocated to them would, in the Commission's view, not be consistent with this common responsibility of all contractors, and would deprive the Commission of part of its guarantee. The Commission explained that that was why it was reluctant to create a precedent by waiving its retention right. 2.4 The Ombudsman considers that the Commission's interpretation of the provisions of the Galilei grant contract and of the sub-contract between ESYS and the complainant, according to which it is entitled to retain 15 % of the contract sum until all the final reports for the whole project have been submitted and approved by it, appears to be correct. 2.5 The Ombudsman further considers that the Commission is fully entitled (and even obliged) to take measures to protect the Community's financial interests when entering into contracts. The retention of a certain percentage of the contract sum until the clearance of all issues relating to the contract is obviously likely to afford such protection.

259

2.6 It should however be noted that the Commission did not dispute the complainant's statement according to which the work that the complainant had had to carry out had been completed at the end of March 2003. Nor has the Commission suggested that there is any reason to call into doubt the quality of this work or the costs that were declared regarding this work. On the contrary, in its reply to the Ombudsman's request for further information, the Commission stressed that the final cost statement that it was assessing at the time of writing did not include any costs relating to the complainant. 2.7 In its reply to the Ombudsman's proposal for a friendly solution, the Commission argued that the parties to a sub-contract were free to determine among themselves any provisions that might attenuate the negative effects of the retention clauses. The Ombudsman notes that the sub-contract between ESYS and the complainant specified that the total periodic payments should not exceed 85 % of the total amount of the sub-contract in order to allow 15 % guarantee retention and that the amount retained was to be paid upon the lifting of any potential reserve by the Commission and ESYS within 30 days of the corresponding payment from the Commission to ESYS. Given that the Galilei grant contract itself contained a clause allowing the Commission to retain 15 % of the amounts due to ESYS, the Ombudsman considers it rather unlikely that ESYS would have agreed to insert into its sub-contract with the complainant a clause protecting the latter against the negative effects of the retention clauses. 2.8 It should also be noted, in this context, that the complainant appears to be a small or medium-sized company. It appears obvious that such a company will be likely to have particular problems if it has to wait for more than 1 years before being paid a comparatively substantial amount of money. In its detailed opinion on the Ombudsman's draft recommendation, the Commission pointed out that it agreed that special attention should be paid to SMEs but submitted that it had sought to do so, in particular by including a special clause in Article 6.15 of the Galilei grant contract which made it possible for an early payment to be made to ESYS and for the impact of the financial guarantee to be reduced. The Ombudsman notes, however, that the Commission has not submitted a copy of the relevant provision. In these circumstances, the Ombudsman is unable to form a conclusive view as to whether the Commission's refusal to release the sum of EUR 12 948.06 retained by it was indeed fair. 2.9 The Ombudsman notes, however, that in its reply of December 2004 to his proposal for a friendly solution, the Commission explained that the payment to the coordinator had now been released, including the sum due to the complainant. The complainant, which has not submitted any observations on this reply, did not dispute this statement. In these circumstances, the Ombudsman considers that there are no grounds for further inquiries into this aspect of the case.

260

3. Claim for interest on account of late payment 3.1 The complainant claimed that the Commission should pay to it interest on account of late payment for delays exceeding the period of 60 days foreseen in the contract. 3.2 The Commission pointed out that it had concluded the Galilei grant contract with 12 contractors (including ESYS) but that the complainant was a sub-contractor of ESYS. There was therefore no contractual relation between the complainant and the Commission in the framework of the relevant project. In its reply to the Ombudsman's request for further information, the Commission specified that in the absence of any contractual relation, it did not have any obligation to pay interest on account of late payment to the complainant but that it had an obligation to pay interest on account of late payment to the co-ordinator and to the principal contractors. In its reply to the Ombudsman's proposal for a friendly solution, the Commission explained that the relevant clause in the Galilei grant contract provided that interest was payable if the principal contractor or the co-ordinator asked for such interest within two months of receiving the late payment. Since neither of these two parties had requested such payment from the Commission within that period, they could no longer claim interest. 3.3 The Ombudsman considers that the Commission's interpretation of the relevant contractual provisions is correct. In these circumstances, the complainant's claim for interest cannot be based on either the Galilei draft contract or the sub-contract between ESYS and the complainant. 3.4 However, regard should be had to the fact that the sub-contract between ESYS and the complainant was based on the "Standard Subcontract for GALILEI" which had been drawn up by the co-ordinator. The Commission was fully informed as to the context of this standard contract and was thus aware that there was no provision for interest to be paid in case of late payment. However, in the absence of such a clause in the sub-contract, any delay on the part of the Commission to forward payments for the work of sub-contractors did not affect the interests of either the co-ordinator or the principal contractor. There was therefore no real reason why either of these two parties should have insisted that the Commission should pay the interest foreseen in the Galilei grant contract in such cases. In the Ombudsman's view, the structure of the contractual arrangement put in place by the Commission thus made it very unlikely that interest should ever have to be paid by the Commission where it failed to forward payments due to sub-contractors within the period of time foreseen for this purpose. It was this consideration that made the Ombudsman consider that the principle of fairness demanded that the Commission should compensate the complainant for the negative effects of its delay in handling cost statements nos 2 and 3. 3.5 In its detailed opinion on the draft recommendation, the Commission pointed out that it had not required the contractors to use a particular model of sub-contracting contract. The Commission submitted that its role in checking the model used by ESYS had been confined to ensuring that the contract was executed properly. In the Commission's view, and in accordance with the principle of contractual freedom, it

261

was not its role to impose clauses on a third-party contractual relationship. According to the Commission, ESYS and the complainant could quite easily have negotiated specific provisions, for instance by requiring ESYS to claim interest on account of late payment from the Commission. 3.6 The Ombudsman takes the view that it does not appear very likely that a small or medium-sized company that wishes to take part, as a sub-contractor, in a major project run by the Commission should be in a position to demand changes to the conditions set out in the model sub-contract that had been worked out by the project co-ordinator and approved by the Commission beforehand. However, given that the existence of such a bargaining possibility can nevertheless not be excluded either, the Ombudsman considers that in the light of the Commission's additional explanations, his earlier finding as regards the application of the principle of fairness cannot be maintained. 4. Conclusion 4.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: According to the conditions applicable the Galilei grant contract, the Commission should have made payments regarding cost statements submitted to it within a period of 60 days after a certain date. As regards two cost statements concerning the complainant, payment was only made 1.5 months and 4 days respectively after the expiry of the 60-days period. This constitutes maladministration. 4.2 The Ombudsman takes note of the fact that the Commission has felt unable to accept the proposal for a friendly solution and the draft recommendation that he had submitted to it with a view to remedying the above-mentioned instance of maladministration. 4.3 Article 3 (7) of the Statute of the European Ombudsman provides that after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, the Ombudsman shall send a report to the European Parliament and to the institution or body concerned. 4.4 In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament was of inestimable value for his work. He added that special reports should therefore not be presented too frequently, but only in relation to important matters where the Parliament was able to take action in order to assist the Ombudsman(3). The Annual Report for 1998 was submitted to and approved by the European Parliament. 4.5 The Ombudsman notes that the present case concerns the duties of the European Commission in relation to a specific contract. He further notes that it is not apparent which action the European Parliament could take in order to assist the Ombudsman and the complainant in the present case. Given these circumstances, the Ombudsman

262

concludes that it is not appropriate to submit a special report to the European Parliament. 4.6 The Ombudsman will therefore send a copy of this decision to the Commission and include a short summary in the annual report for 2005 that will be submitted to the European Parliament. The Ombudsman thus closes the case. 4.7 The President of the European Commission will also be informed of this decision.

FURTHER REMARKS It emerges from the present inquiry that the complainant, a small or medium-sized company that had carried out work as a sub-contractor on a project run by the Commission, had to wait for more than 1 years before being paid a comparatively substantial amount of money (EUR 12 948.06). The Ombudsman considers that small and medium-sized companies will hardly have a realistic possibility of taking part in such projects in circumstances like these. In the Ombudsman's view, it would be useful if the Commission could take the above remarks into account when preparing future contracts, especially those involving small or medium-sized companies, in order to prevent similar problems from arising. In particular, the Commission could consider whether it would not be appropriate to alter its standard contractual practice so that payment of interest to contractors in respect of amounts due to sub-contractors that have properly fulfilled their obligations would become automatic. In the Ombudsman's view, such a change would constitute a useful confirmation of the Commission's commitment to the interests of small and medium-sized companies. It would also appear to be in conformity with the Commission's proclamations to the effect that delays in payment by its own services should not result in disadvantages for third parties. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsmans Duties, OJ 1994 L 113, p. 15.
(2) (1)

The present considerations focus on the amount that was actually paid. The amount that was retained by the Commission will be considered under 2. Annual Report for 1998, pages 27-28.

(3)

263

Decision of the European Ombudsman on complaint 538/2004/TN against the European Commission

Strasbourg, 4 May 2005

Dear Mr Z., On 16 February 2004, with additional documentation submitted on 12 March 2004, you made a complaint to the European Ombudsman on behalf of European Consulting & Technical Assistance (ECTA) concerning the European Commission's rejection of ECTA's offer in call for tender ENV.D.1/ATA/2003/0049 (Title: Life Environment 2004, Contract for technical evaluation). On 22 March 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 15 June 2004. I forwarded it to you with an invitation to make observations, which you sent on 26 July 2004. On 19 October 2004, I wrote to the Commission, asking for further information relating to certain aspects of your complaint. I received the Commission's reply on 7 December 2004. I forwarded it to you with an invitation to make observations, which you sent on 25 February 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are, in summary, the following: European Consulting & Technical Assistance (hereafter "ECTA") submitted an offer in call for tender ENV.D.1/ATA/2003/0049 (Title: Life Environment 2004, Contract for technical evaluation). By letter of 1 December 2003, the Commission informed ECTA that its bid had been unsuccessful because the "organisation failed to represent the best case of value for money in accordance with the award criteria". Specifically, the Commission pointed out that, as regards the methodological approach, the bid did not illustrate the concrete procedures and steps to be taken in order to implement the evaluation. The Commission also stated that the policy group evaluators had not been identified and that the offer contained a long list of proposed evaluators, but that there was no written commitment from any of them to participate in the evaluation. On 2 December 2003, the complainant sent the Commission a fax message and an email rebutting the Commission's statements in its letter of 1 December 2003.

264

On 23 December 2003, the complainant received a letter from the Commission, dated 9 November 2003, replying to his fax message and e-mail of 2 December 2003. In its letter, the Commission argued that ECTA's bid did not reach the minimum threshold of points to be shortlisted, as required by the technical annex. Concretely, as regards the criteria "Project Management/Flexibility", the Commission considered the group co-ordination expenditure to be excessive. The complainant considered this argumentation to be totally different from the explanation provided in the Commission's letter of 1 December 2003. By letters of 9 and 12 January 2003, he therefore asked for a reassessment of the bid. Following the request for a reassessment, the complainant received a response from the Commission, dated 26 January 2004, confirming the rejection and stating that the relevant reasons for the rejection had been provided in the two previous letters. The Commission further explained that the second letter had been dispatched on 9 December 2003, but that it had mistakenly been dated 9 November 2003. On 13 February 2004, the complainant again turned to the Commission, contesting the evaluation of ECTA's tender on the following grounds: First, the complainant argued that the Commission had failed to respect the published award criteria. The award criteria specified that projects would be evaluated in two phases: A first phase assessing the capability of understanding, the methodology and the project management/availability, where at least 6 points had to be obtained for each criterion, and a second phase, "value for money", in which the contract would be awarded to the bidder offering the best value for money, provided that the bid had obtained the minimum points in the first phase. However, in its second letter, the Commission informed the complainant that ECTA's offer had been excluded because an item in the proposed budget had been considered excessive. Concretely, the evaluators had found that "the group co-ordination expenditure was excessive and that this could be detrimental vis--vis the resources needed to flexibly cope with an exceedingly large number of proposals". The offer was therefore awarded only four points for "project management/availability". The evaluators had therefore applied, in the first phase, a "value for money" argument, which should only have come into play in the second phase of the award procedure. Second, the complainant argued that the Commission's evaluation of ECTA's bid, and specifically its finding that "the group co-ordination expenditure was excessive and that this could be detrimental vis--vis the resources needed to flexibly cope with an exceedingly large number of proposals", was wrong for the following reasons: i) ECTA's offer was specifically designed to address possible larger/smaller numbers of proposals; ii) the offer proposed 60 evaluators from 17 different European countries covering 17 languages and was therefore entitled to benefit from additional points, as stated in the Technical Specifications, Annex 1 - Point 1.2.2; and iii) the total offer was less expensive than the offer of the successful tenderer and, consequently, if one item in the budget was excessive, other items must have been more competitive than those in the offer of the successful tenderer.

265

On 8 March 2004, the complainant received a reply from the Commission, stating that the evaluators were allowed to take budgetary considerations on board when assessing criteria like project management and that it would have been unrealistic not to do so. The Commission also stated that the "value for money" ranking was not an evaluation criterion, but a simple arithmetical method to rank the short-listed proposals. The complainant is not satisfied with this explanation. In substance, the complainant alleges that the Commission has: i) Sent confusing messages to the complainant containing inconsistent reasons for rejecting ECTA's offer; Failed to respect the published award criteria; and Made an incorrect evaluation of ECTA's offer.

ii) iii)

The complainant claims that the Commission should: i) ii) Reassess ECTA's offer; and Compensate ECTA for being wrongly excluded from the tender procedure.

THE INQUIRY The Commission's opinion In its opinion, the Commission makes the following comments: In July 2003, the Commission published an open call for tenders aiming at identifying a company which would provide technical support and assistance for the evaluation of the proposals submitted to the Commission for financial assistance in the form of cofinancing in the fields covered by the Life Environment programme. A team of three officials evaluated the tenders in October 2003. The decision to reject ECTA's bid, as well as the choice of the winning bid, was made unanimously by the three evaluators. The result of the evaluation of ECTA's bid was the following: For "Understanding": 5/10 (minimum required: 6/10); for "Methodology": 5/10 (minimum required: 6/10); and for "Project Management/Availability": 4/10 (minimum required: 6/10). The total number of points, 14/30, was below the minimum threshold of 20/30. Consequently, ECTA's bid did not satisfy any of the award criteria. On 1 December 2003, the Commission informed the bidders, by fax and e-mail, of the award decision. The information consisted of a standard letter including a citation of the relevant assessment by the evaluators of the bid in question. The bidders were informed that the Commission would not sign a contract with the successful bidder

266

until two weeks later, thus allowing the unsuccessful bidders to obtain additional information on the rejection of their bids. The Commission encouraged the use of fax and e-mail to avoid transmission delays. During the two weeks before signing the contract, unsuccessful bidders could only provide the Commission with clarifications. No new elements could be submitted. On 2 December 2003, ECTA sent a fax message to the Commission, challenging the evaluation of its bid, requesting a re-assessment and submitting additional information to complement the original bid. The Commission replied on 9 December 2003, by letter and fax, explaining the selection procedure and providing additional information on the reasons for rejecting ECTA's bid. As already explained to ECTA in subsequent correspondence, this letter was erroneously dated 9 November 2003. ECTA only replied by letter of 9 January 2004, well beyond the official deadline, explaining that it had not received the Commission's fax message of 9 December 2003. Whilst this is unfortunate, it has no bearing on the decision to reject ECTA's bid. In its letter of 9 January 2004, ECTA insisted on obtaining a re-assessment of its bid. ECTA also alleged that the Commission had not replied to ECTA's concrete arguments, put forward in earlier correspondence, challenging the assessment of its bid. In order to prepare a reply to ECTA, a meeting was held with the evaluators who had elaborated the assessment report. During the meeting, the following was established. The Commission had followed the procedures laid down in the Financial Regulation and the Commission Communication on the procedure for informing candidates and tenderers. After thorough examination of the arguments put forward by ECTA, the participants to the meeting unanimously agreed that ECTA's arguments did not provide any reason to carry out a re-evaluation of the tender. ECTA had argued that the Commission indicated in the technical specifications of the call for tenders that it was not interested in information on contractual arrangements between the contractor, co-ordinators and experts. However, the technical specifications laid down that "the contractor /.../ will establish the necessary contractual arrangements with those experts and co-ordinators which are not part of its staff" (point 3.2 of the technical specifications published with the call). It was therefore justified to give a low mark to ECTA as its bid failed to indicate how the arrangements between the contractor and the co-ordinators and experts were to be organised. ECTA had also complained about the Commission giving new grounds for the rejection in its letter of 9 December 2003. However, as pointed out above, the Commission may give additional information on the reasons why a particular bid has been rejected when asked in writing by the bidder. The information in the letter of 9 December 2003 was an additional citation of the evaluation report. In view of the above, the Commission confirmed to ECTA, on 26 January 2004, that the procedure that led to the rejection of its bid had been carried out in accordance with the rules, that the relevant reasons for rejecting the bid had been stated in the two previous letters and that ECTA's comments did not provide any reason to review the selection and evaluation procedure. ECTA replied on 13 February 2004, requesting, for the third time, a reassessment of its bid. In this letter, ECTA again challenged the assessment of the group co-

267

ordination expenditure proposed in its bid. During the evaluation, the evaluators estimated that this chapter was endowed with an exceedingly high budget allocation, which could put at stake the necessary flexibility of the budget devoted to finance the individual evaluations. This was noted in the comments in the evaluation report under "Project Management/Availability". The evaluators considered this to be a major flaw in the bid, which led them not to include it in the shortlist. ECTA was informed of these reasons in the Commission's first two letters. However, in its letter of 13 February 2004, ECTA came back to this issue, challenging the evaluation and arguing, on formal grounds, that this criterion was wrongly evaluated as part of award criterion 3 "Project Management/Availability" as, according to ECTA, this criterion should be evaluated as part of the "value for money" criterion. In reply to ECTA, the Commission explained that the evaluators were allowed to take budgetary considerations on board when assessing the different criteria and especially the resources devoted to project management and co-ordination as well as the capacity of the bidder to adapt to a variable workload. The Commission made clear to ECTA that it would be unrealistic to measure the balance between co-ordination and evaluation workload without analysing the budget devoted to each. The Commission also clarified that, contrary to ECTA's suggestion, the value for money analysis, which was elaborated at the end of the evaluation process for the bids which had been shortlisted, is not an evaluation award criterion per se, but a simple arithmetic calculation (total budget divided by total mark). The complainant's observations In his observations, the complainant makes the following remarks: As regards the excerpt of the evaluation of ECTA's bid, which was enclosed with the Commission's opinion, the complainant makes the following comments: As regards "Understanding" and "Methodology", the Commission states that "[t]he bidder proposes to carry out certain administrative tasks. The bid approaches the evaluation as an administrative process" and also that "[t]he methodological approach is all too theoretical". The complainant argues that the table of contents of the offer answers these allegations by itself. The headings refer neither to a "theoretical approach" nor to administration. The Commission must have confused the explanation of ECTA's competence, which was included in the first part of its bid, with the explained methodology. As the maximum number of pages for the offer was 20, there was not much room for theorising and administrative tasks. The Commission also states, as regards "Methodology", that "[t]he bid does not illustrate the concrete procedures or steps to be taken in order to implement the evaluation". The complainant argues that the Commission must have missed the pages in the bid dealing with identifying potential evaluators and creating draft expert lists; creating finalised expert lists and reserve expert lists; training for the expert groups;

268

the number of proposals for each evaluator group; matching experts and proposals; minimising risks; and the evaluation of proposals. Another statement by the Commission as regards "Methodology" is that "[t]he Policy Group evaluators have not been identified. There is a long list of evaluators proposed but there is no written commitment from them to participate in the evaluation". The complainant argues that the call for tender did not require the bidder to submit written commitments from the evaluators. On the contrary, the call stated that "[t]he contractor shall be solely responsible for the performance of the contract, for the staff and the evaluators who execute the tasks". The statement in the technical specifications that "the contractor will be the exclusive focal point for the experts and will establish the necessary contractual arrangements with those experts and coordinators which are not part of its staff" could possibly be interpreted in the way the Commission argues if the word "will" were replaced by "shall". Before submitting its bid, ECTA contacted the Commission to ask whether the experts' CVs had to be enclosed. In reply, the Commission explained that that was the case. The complainant argues that if, in addition, the experts' written commitments had to be enclosed with the bid, the Commission would have mentioned this in its reply. The complainant points out that ECTA's bid explained that "[t]he individual experts that agreed to cooperate with us are normally /.../" and that "[f]or these 17 persons (additional to the 42 already identified), J.B. will take care that we will have written agreements and the complete CVs before the 15 December 2003 (in conformity to the article 3.1 of the technical specifications)". If the Commission doubted the commitment of ECTA's proposed evaluators, it could have asked for additional information, as provided for on page 4, paragraph 5, of the call for tender. A sample of written commitments from evaluators was enclosed with ECTA's letter to the Commission of 2 December 2003. Furthermore, the names of the policy group evaluators were listed in the proposal. As regards "Project Management/Availability", the Commission states that "[g]roup co-ordination expenditure seems too high (EUR 51 862) to the detriment of the budget allocated to the assessment of proposals". The complainant argues that these expenditures were not too high and that they certainly did not "seem" too high. The Commission could have contacted ECTA for further explanations before penalising the bid without completely understanding the expenditure in question. The expenditure referred to by the Commission (EUR 51 862) is the item "cost of personnel" under the heading "Group co-ordination", which in turn is a sub item of "Assessment of proposals". The amount of EUR 51 862 consisting of personnel costs thus constitutes part of the budget allocated to the assessment of proposals and can therefore not be detrimental to that very same budget post. The Commission further states, in relation to "Project Management/Availability", that "[n]o management arrangements indicated in the case of contingency. No flexibility arrangements neither". In reply, the complainant points out that two chapters of the bid were dedicated to "Information - How to respect the deadlines of the Commission" and "Information - Being flexible". Furthermore, one of the headings in the bid covered the item "What if we need more experts?" and the bid proposed three times

269

the evaluators and three times the group co-ordinators required. The proposed team of evaluators would be able to handle projects in 17 of the EU languages and the organisation chart showed the management arrangements in case of contingency. Furthermore, the complainant has had indications that the Commission accepted one offer from Spain that had arrived after the closing date and that one of the accepted bids was submitted in the original, without copies. The complainant also questions why the letter dispatched on 9 December 2003 was only received by ECTA on 23 December 2003, why ECTA never received the letter by fax and why a Commission official refers to the letter in question as the letter of 12 December 2003. Further inquiries After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman therefore wrote to the Commission asking it to answer the following question: How does the Commission justify penalising ECTA's bid for not including written commitments from the evaluators and for not having identified the policy group evaluators when i) the call for tenders did not require bidders to submit written commitments from evaluators; ii) ECTA's bid explained that written agreements with still unidentified individual experts would be entered into before 15 December 2003 in conformity with the technical specifications; and iii) the names of the policy group evaluators were listed in the bid? The Ombudsman also asked the Commission to comment on the following arguments, which the complainant brought forward in his observations: 1. The Commission accepted one offer from Spain that had arrived after the closing date; 2. One of the accepted bids was only submitted in the original, without copies; 3. Why ECTA received the letter dispatched on 9 December 2003 only on 23 December 2003, why ECTA never received that letter by fax and why a Commission official referred to that letter as the letter of 12 December 2003. The Commission's reply As regards the penalty relating to the evaluators and policy group evaluators, the Commission points out that the evaluators do not privilege or penalise proposals as the complainant suggests, but evaluate them on the basis of the published award criteria and the information provided by the bidder. Indeed, when it comes to evaluating the availability of experts and group coordinators (which is an award criterion and one of the most crucial points to be evaluated considering the nature of the services

270

requested, i.e. evaluation of a huge mass of proposals), the Commission evaluators can only judge the bid on the basis of the information provided in the bid. ECTA provided CVs for a number of experts and group coordinators, but none of these experts or coordinators was part of ECTA's staff and the bid did not provide any evidence of a commitment from any of these persons to participate in the evaluation. The evaluators could therefore not assess the degree of real availability of the proposed individual experts and group co-ordinators. Written commitment is the only way to evaluate the degree of availability of experts who do not belong to the bidder organisation and therefore are not legally bound to maintain their candidatures. The Commission recalls that the call for tenders clearly specified "Availability" as one of the award criteria. In view thereof, and considering the significant workload involved and personnel availability required, the Commission evaluators considered insufficient the guarantees of availability for the evaluators in ECTA's bid. This was considered as a risk and contributed to the exclusion of ECTA's bid from the shortlist. It should be noted, however, that this was not the only reason why ECTA's bid did not reach the shortlist since the bid scored insufficiently in all three award criteria. As regards the complainant's argument that one bid was accepted despite having arrived after the closing date, the Commission confirms that all accepted bids were sent before the deadline of 3 October 2003, in accordance with Article 143 of the implementing rules to the Financial Regulation. As regards the complainant's argument that one of the accepted bids was only submitted in the original, without copies, the Commission confirms that all the admissibility checks were rigorously applied as regards all bids received. In accordance with its internal rules, i.e. point 10.5 of the Vade Mecum on Public Procurement Procedures, the Commission does not consider inadmissible a bid that is not submitted in three copies. As regards the letter of 9 December 2003, the Commission confirms that the letter was sent on that day. However, it has no control over possible mail delivery delays. The Commission is not obliged to send letters by fax but it normally does so. However, in the present case, the Commission has no record of a fax having been sent. The Commission further confirms that the letter in question was mistakenly referred to by an official as "our reply of the 12.12.2003". The Commission argues, however, that this mistake should have been obvious to the complainant. The complainant's observations The complainant made, in summary, the following comments on the Commission's reply: None of the Commission's arguments prove that it did not penalise ECTA's bid. The Commission tries to argue that the huge mass of proposals that will have to be evaluated justifies the need for a lot of available experts. In the tender documents, the

271

Commission asks for three CVs for each of the five evaluation groups plus two reserve CVs, i.e. a total of 17 CVs. ECTA, however, provided a total of about 60 experts and proposed between eight and nine experts per evaluation group, plus a reserve list of two to three experts per group. ECTA also proposed a list of three group co-ordinators per evaluation group. In the complainant's view, this should be enough to manage the evaluation of a huge amount of proposals and to adapt to any increasing workload. The tender documents stated that the contractor had to submit to the Commission three CVs for each evaluation group, plus two reserve CVs, before 15 December 2003, i.e. more than two months after the deadline for submitting the bid. In order to get a clarification on the matter, ECTA sent the Commission an e-mail, in reply to which the Commission explained that the bid should include the CVs. The Commission tries to argue that ECTA did not receive enough points because of lack of evidence of the experts' commitment. The complainant would like to point out, however, that the tender documents did not even ask for the experts' CVs to be submitted by the deadline for submitting the bid. The complainant points out that the call for tender stated that "/.../ your offer must conform to the following requirements to be considered valid: a) one signed original and two copies of your tender must be placed inside two sealed envelopes. /.../" However, this is not consistent with the Vade Mecum on Public Procurement Procedures, which does not consider a bid not consisting of three copies to be inadmissible. The complainant argues that only publicly available information, like the tender documents, should define the rules, which furthermore should be the same for all bidders. The complainant further questions why bidders are asked to submit copies if it is not necessary. The complainant argues that all the errors in the tender documents only allowed "insiders" to submit a bid in the appropriate way.

THE DECISION 1. The allegedly confusing and inconsistent messages 1.1 The complaint, which was submitted on behalf of European Consulting & Technical Assistance (ECTA), concerns the European Commission's rejection of ECTA's offer in call for tender ENV.D.1/ATA/2003/0049 (Title: Life Environment 2004, Contract for technical evaluation). According to the complainant, ECTA was informed, by letter of 1 December 2003, that its bid had been rejected because the "organisation failed to represent the best case of value for money in accordance with the award criteria". The Commission pointed out that, as regards the methodological approach, the bid did not illustrate the concrete procedures and steps to be taken in order to implement the evaluation. The Commission also stated that the policy group evaluators had not been identified and that the offer contained a long list of proposed

272

evaluators, but that there was no written commitment from any of them to participate in the evaluation. On 2 December 2003, the complainant sent the Commission a rebuttal of these statements. On 23 December 2003, the complainant received a letter from the Commission, dated 9 November 2003. In this letter, the Commission argued that ECTA's bid had been rejected because it did not reach the minimum threshold of points to be shortlisted. Concretely, as regards the criteria "Project Management/Flexibility", the Commission considered the group co-ordination expenditure to be excessive. The complainant considers this argumentation to be totally different from the explanation for the rejection provided in the Commission's letter of 1 December 2003. The complainant alleges that the Commission has sent confusing messages to ECTA, containing inconsistent reasons for rejecting its bid. In his observations on the Commission's opinion, the complainant also questions why the letter dispatched on 9 December 2003 was only received by ECTA on 23 December 2003, why ECTA never received the letter by fax and why a Commission official refers to the letter in question as the letter of 12 December 2003. 1.2 The Commission argues that by letters dispatched on 1 December 2003, all bidders were informed of the award decision. The letters sent out were standard letters, including a citation of the relevant assessment by the evaluators of the particular bid addressed. In reply to the complainant's fax message of 2 December 2003, the Commission explained the selection procedure and provided additional information on the reasons for rejecting ECTA's bid. As already explained to ECTA, this letter was dispatched on 9 December 2003, but was erroneously dated 9 November 2003. On 9 January 2004, ECTA replied, complaining that the Commissions letter dated 9 November 2003 had contained new grounds for rejecting the bid and that it had not replied to ECTA's concrete arguments challenging the assessment of the bid. The Commission argues, however, that it is entitled to give additional information about the reasons why a particular bid was rejected when asked in writing by the bidder. The information in the letter of 9 December 2003 (dated 9 November 2003) was an additional criterion of the evaluation report. The Commission confirms that the letter of 9 December 2003 was sent on that day, but it has no control over possible mail delivery delays. The Commission is not obliged to send letters by fax but it normally does so. However, in the present case, the Commission has no record of a fax having been sent. The Commission further confirms that the letter in question was mistakenly referred to by an official as "our reply of the 12.12.2003", arguing that this mistake should have been obvious to the complainant. 1.3 The Ombudsman points out that the European Code of Good Administrative Behaviour requires that when answering correspondence, the institutions shall try to be as helpful as possible and shall reply as completely and accurately as possible to questions which are asked(1). Mindful of the special rules governing contacts between the authority launching a tender procedure and the bidders, the Ombudsman notes that the Commission itself has explained that it is entitled to give additional information

273

about the reasons why a particular bid has been rejected when asked in writing by the bidder. The Ombudsman therefore finds no reason why the Commission should not be able to provide a complete and accurate reply to a bidder's questions concerning the reasons for rejecting his or her bid. 1.4 The Ombudsman notes that on 2 December 2003, the complainant wrote to the Commission trying to rebut the Commission's reasons for rejecting ECTA's bid, as provided in the Commission's letter of 1 December 2003. The Ombudsman further notes that, in reply, the Commission provided further reasons for rejecting ECTA's bid, without explaining that these reasons were additional to the ones given in its first letter. Furthermore, in its reply, the Commission does not appear to acknowledge or answer the complainant's attempt to rebut the first reasons that the Commission had given for rejecting the bid. In the Ombudsman's view, by not acknowledging or answering the complainant's arguments, but merel giving additional reasons for rejecting ECTA's bid, the Commission failed to reply as completely and accurately as possible to the complainant's letter of 2 December 2003, as required by the Code of Good Administrative behaviour. This constitutes an instance of maladministration and the Ombudsman will make a critical remark in this regard. 1.5 As regards the fact that the Commission's letter dispatched on 9 December 2003 was dated 9 November 2003, the Ombudsman notes that, by letter of 26 January 2004, the Commission explained the matter to the complainant and apologised for the mistake. In view thereof, the Ombudsman considers that the Commission has already taken appropriate corrective action as regards this aspect of the complaint. 1.6 As regards the letter's delay in reaching the complainant, the Ombudsman has found no evidence to show that the delay was caused by the Commission. The Ombudsman further notes the Commission's explanation that an official by mistake referred to the letter in question as a letter of 12 December 2003. The Ombudsman notes that this appears to have been done in an e-mail to which a copy of the letter in question was attached. Despite the mistake, the complainant was therefore able to determine which letter the official referred to. In view of the above, the Ombudsman finds no maladministration by the Commission regarding the matters concerned. 1.7 As regards the question why the complainant never received the Commission's letter, dispatched on 9 December 2003, by fax, the Ombudsman notes that the Commission appears to acknowledge that the letter in question was not faxed to the complainant. The Ombudsman is not aware of any rule or principle requiring the Commission to send letters both by post and by fax, although the use of fax messages constitutes additional service-mindedness. The Ombudsman therefore finds no maladministration by the Commission regarding the matter. 1.8 However, the Ombudsman notes the Commission's statement that although not obliged to do so, it normally sends letters concerning the evaluation of bids by fax. In order to ensure equal treatment of bidders, the Ombudsman suggests that the Commission could consider formalising and clarifying its procedures in this regard,

274

communicating its conclusions to him. The Ombudsman will make a further remark to this effect below. 2. The alleged failure to respect the published award criteria 2.1 According to the complainant, the award criteria specified that projects would be evaluated in two phases: A first phase assessing the capability of understanding, the methodology and the project management/availability, and a second phase, "value for money", in which the contract would be awarded to the bidder offering the best value for money, provided that the bid had obtained the minimum points in the first phase. However, in its second letter, the Commission informed the complainant that ECTA's offer had been excluded because an item in the proposed budget had been considered excessive. Concretely, the evaluators had found that "the group co-ordination expenditure was excessive and that this could be detrimental vis--vis the resources needed to flexibly cope with an exceedingly large number of proposals". The offer therefore received only 4 points for "project management/availability". The evaluators had thus applied, in the first phase, a "value for money" argument, which should only have come into play in the second phase of the award procedure. The complainant alleges that the Commission has failed to respect the published award criteria. 2.2 The Commission argues that the evaluators were allowed to take budgetary considerations on board when assessing the different criteria and especially the resources devoted to project management and co-ordination as well as the capacity of the bidder to adapt to a variable workload. It would be unrealistic to measure the balance between co-ordination and evaluation workload without analysing the budget devoted to each. The value for money analysis, which was elaborated at the end of the evaluation process for the bids that had been shortlisted, was not an evaluation award criterion per se, but a simple arithmetic calculation (total budget divided by total mark). 2.3 The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule of principle binding upon it(2). Maladministration may thus also be found in the Commission's evaluation of bids submitted in reply to calls for tenders. It should be noted, however, that it is for the Commission and not for the Ombudsman to carry out the actual evaluation of bids. The Ombudsmans inquiry therefore investigates whether the Commission, in exercising its power of evaluation, has acted outside the scope of its legal authority. For the purposes of the present inquiry, the relevant questions for the Ombudsman are whether the Commission has respected the published award criteria and whether it has acted reasonably. 2.4 The Ombudsman notes the Commission's explanation that, when assessing bids on the basis of their proposed project management and co-ordination as well as when assessing the capacity of the bidder to adapt to a variable workload, it is necessary to analyse the budgetary resources devoted to each of these areas. The Ombudsman considers this explanation provided by the Commission to be reasonable and he does not find any evidence to show that the Commission, by using this method when

275

assessing the bids failed to respect the published award criteria. The Ombudsman therefore finds no maladministration by the Commission as regards this aspect of the complaint. 3. The allegedly incorrect evaluation of ECTA's bid 3.1 The complainant is dissatisfied with the Commission's evaluation of ECTA's bid on the basis of the award criteria. As regards "Understanding" and "Methodology", the complainant argues that, contrary to the Commission's assertion, the table of contents of the bid showed that the bid was neither too theoretical, nor approaching the evaluation as an administrative process. The Commission must have confused the explanation of ECTA's competence, which was included in the first part of its bid, with the explained methodology. The complainant also presents the arguments summarised in the following paragraphs of this point: The bid did in fact illustrate the concrete procedures or steps to be taken in order to implement the evaluation. By arguing otherwise, the Commission must have missed the pages in the bid dealing with identifying potential evaluators and creating draft expert lists; creating finalised expert lists and reserve expert lists; training for the expert groups; the number of proposals for each evaluator group; matching experts and proposals; minimising risks; and the evaluation of proposals. As regards the alleged lack of identified policy group evaluators and written commitments from proposed evaluators, the call for tender did not require the bidder to submit written commitments from the evaluators. On the contrary, the call stated that "[t]he contractor shall be solely responsible for the performance of the contract, for the staff and the evaluators who execute the tasks". The statement in the technical specifications that "the contractor will be the exclusive focal point for the experts and will establish the necessary contractual arrangements with those experts and coordinators which are not part of its staff" could possibly be interpreted in the way the Commission argues if the word "will" were replaced by "shall". ECTA's bid explained that "[t]he individual experts that agreed to co-operate with us are normally /.../" and that "[f]or these 17 persons (additional to the 42 already identified), J.B. will take care that we will have written agreements and the complete CVs before the 15 December 2003 (in conformity to the article 3.1 of the technical specifications)". If the Commission doubted the commitment of ECTA's proposed evaluators, it could have asked for additional information, as provided for on page 4, paragraph 5 of the call for tender. A sample of written commitments from evaluators was enclosed with ECTA's letter of 2 December 2003, and the names of the policy group evaluators were listed in the proposal. The tender documents stated that the contractor had to submit the CVs before 15 December 2003, i.e. more than two months after the deadline for submitting the bid. In order to get a clarification on the matter, ECTA sent the Commission an e-mail, in

276

reply to which the Commission explained that the bid should include the CVs. The Commission tries to argue that ECTA did not receive enough points because of lack of evidence of the experts' commitment. The complainant would like to point out, however, that the tender documents did not even ask for the experts' CVs to be submitted by the deadline for submitting the bid. The Commission further tries to argue that the huge mass of proposals that will have to be evaluated justifies the need for a lot of available experts. In the tender documents, the Commission asks for a total of 17 CVs. ECTA, however, provided a total of about 60 experts, and proposed between eight and nine experts per evaluation group, plus a reserve list of two to three experts per group. ECTA had also proposed a list of three group coordinators per evaluation group. In the complainant's view, this should be enough to manage the evaluation of a huge amount of proposals and to adapt to any increasing workload. The group co-ordination expenditure was not too high to the detriment of the budget allocated to the assessment of proposals, as argued by the Commission. The Commission, which stated that the expenditure "seems" too high, could have contacted ECTA for further explanations before penalising the bid without completely understanding the expenditure concerned. The expenditure concerned is the item "cost of personnel" under the heading "Group co-ordination", which in turn is a sub-item to "Assessment of proposals". The amount consisting of personnel costs thus constitutes part of the budget allocated to the assessment of proposals and can therefore not be detrimental to that very same budget post. In addition, the expenditure in question has to be seen in the light of ECTA's offer being especially designed to address possible larger/smaller numbers of proposals, that it proposed 60 evaluators from 17 different European countries and that it, in total, was less expensive than the bid of the successful tenderer. Therefore, if one item of the budget was excessive, other items must have been more competitive than those in the successful bid. The bid did indicate flexibility arrangements and management arrangements in the case of contingency, contrary to the Commission's assertion. Two chapters of the bid were dedicated to "Information - How to respect the deadlines of the Commission" and "Information - Being flexible". Furthermore, one of the headings in the bid covered the item "What if we need more experts?" and the bid proposed three times the evaluators and three times the group co-ordinators required. The proposed team of evaluators would be able to handle projects in 17 of the EU languages and the organisation chart showed the management arrangements in case of contingency. In summary, the complainant alleges that the Commission has made an incorrect evaluation of ECTA's bid. 3.2 The Commission argues that, following the complainant's challenge of the assessment of ECTA's bid, a meeting was held with the evaluators of the bid, who concluded that the rejection of the bid was carried out in accordance with the

277

applicable rules and that ECTA's arguments did not provide any reason to carry out a re-evaluation of the bid. The Commission further notes ECTA's argument that the technical specifications of the call indicated that the Commission was not interested in information on contractual arrangements between the contractor and its co-ordinators and experts. However, the technical specifications laid down that "the contractor /.../ will establish the necessary contractual arrangements with those experts and co-ordinators which are not part of its staff" (point 3.2 of the technical specifications published with the call). When it comes to evaluating the availability of experts and group coordinators (which is an award criterion and one of the most crucial points to be evaluated considering the nature of the services requested, i.e. evaluation of a huge mass of proposals), the Commission evaluators can only judge the bid on the basis of the information delivered in the bid. ECTA provided CVs for a number of experts and group co-ordinators, but none of these experts or co-ordinators was part of ECTA's staff and the bid did not provide any evidence of a commitment to participate in the evaluation from any of these persons. The evaluators could therefore not assess their degree of real availability. Written commitment is the only way to evaluate the degree of availability of experts who do not belong to the bidder organisation and therefore are not legally bound to maintain their candidatures. Considering the significant workload involved, and the personnel availability required, the Commission evaluators considered insufficient the guarantees of availability for the evaluators in ECTA's bid. This was considered as a risk and contributed to the exclusion of ECTA's bid from the shortlist. As regards the group co-ordination expenditure, the evaluators estimated that this chapter was endowed with an exceedingly high budget allocation, which could put at stake the necessary flexibility of the budget devoted to finance the individual evaluations. The evaluators considered this to be a major flaw in the bid. 3.3 The Ombudsman recalls that, as explained in point 2.3 above, his inquiry into the present case investigates whether the Commission, in exercising its power of evaluation, has respected the published award criteria and whether it has acted reasonably. 3.4 As regards the award criteria "Understanding" and "Methodology" and the complainant's argument that the bid was neither too theoretical, nor approaching the evaluation as an administrative process, the Ombudsman considers that by merely referring to the table of contents, the complainant has not provided enough evidence to show that the Commission's evaluation in this regard was unreasonable or that it failed to respect the published award criteria when making its assessment. The Ombudsman makes the same finding as regards the complainant's argument that the bid illustrated concrete procedures to implement the evaluation. In this regard, the complainant merely states that the bid contained information on: the identification of potential evaluators and the creation of draft expert lists; the creation of finalised expert lists and reserve expert lists; the training for the expert groups; the number of proposals for

278

each evaluator group; the matching of experts and proposals; the minimising of risks; and the evaluation of proposals. The Ombudsman notes that, judging from the wording, only the last area of information, "the evaluation of proposals", appears to cover actual implementation. 3.5 As regards the complainant's argument that the call for tenders did not require the bidder to submit written commitments from the evaluators, the Ombudsman agrees that there appears to be no explicit requirement in this regard. However, the Ombudsman considers reasonable the Commission's explanation that "Availability" is one of the most crucial award criteria against which to evaluate the bid and that written commitment is the only way to evaluate the degree of availability of experts who do not belong to the bidder organisation. This finding is not affected by the fact that the tender documents stated that the evaluators' CVs only had to be submitted after the deadline for submitting the bid. In relation to this issue, the Commission appears to have given the complainant information that could be interpreted as meaning that the experts' CVs had to be submitted together with the bid itself and not only by 15 December 2003. The Ombudsman notes, however, that this is not a matter that seems to have affected the actual evaluation of ECTA's bid. The Ombudsman therefore finds no ground to pursue this matter further. 3.6 As regards the complainant's argument that the Commission was incorrect in its finding that the "group co-ordination" expenditure was too high, the Ombudsman notes that the complainant rightly points out that the "group co-ordination" expenditure is a sub-section of "Assessment of proposals". The Ombudsman also notes, however, that another sub-section of "Assessment of proposals" is the expenditure for "Evaluation". The budget allocated to the individual evaluations thus seems to be separately itemised. In view thereof, the Ombudsman does not find any evidence that the Commission acted unreasonably or that it failed to respect the published award criteria in considering that a high budget allocation to "group coordination" could put at stake the flexibility of the budget dedicated to finance the individual evaluations. The fact that ECTA's bid might contain other more competitive items does not appear to affect this finding. 3.7 As regards the complainant's argument that the Commission was wrong in its finding that the bid lacked flexibility arrangements and management arrangements in the case of contingency, the Ombudsman notes the complainant's explanation that the bid did contain chapters, headings and other parts showing the required arrangements. However, the Ombudsman does not consider this brief explanation to provide, by itself, sufficient evidence of the Commission's evaluation in this regard was unreasonable. 3.8 In view of the above, the Ombudsman finds no maladministration by the Commission as regards this aspect of the complaint.

279

4. The complainant's further arguments 4.1 During the course of the inquiry, the complainant brought forward the arguments that the Commission had accepted one bid that had arrived after the closing date and that one of the accepted bids had only been submitted in the original, without copies. 4.2 In reply to these arguments, the Commission explained that Article 143 of the implementing rules to the Financial Regulation requires bids to be sent, not received, before the deadline. The Commission confirmed that all accepted bids had been sent before the deadline. As regards the number of copies to be submitted, the Commission explained that, in accordance with its internal rules, i.e. point 10.5 of the Vade Mecum on Public Procurement Procedures, the Commission does not consider inadmissible a bid that is not submitted in three copies. 4.3 In reply to the Commission's explanations, the complainant pointed out that the Commission's Vade Mecum on Public Procurement Procedures is not consistent with the call for tenders, which stated that "/.../ your offer must conform to the following requirements to be considered valid: a) one signed original and two copies of your tender must be placed inside two sealed envelopes. /.../". The complainant argues that only publicly available information, such as the tender documents, should define the rules, which furthermore should be the same for all bidders. The complainant further questions why bidders are asked to submit copies if it is not necessary to do so. 4.4 On the basis of the information provided by the parties, the Ombudsman finds no evidence to suggest that the rules governing the deadline for submitting bids were not followed as regards the call for tenders concerned. 4.5 As regards the number of copies to be submitted of a bid, the Ombudsman notes that point 10.5 of the Vade Mecum on Public Procurement Procedures states that "[a]s the rejection of a tender as not being in order has important implications, it should be borne in mind that /.../ [t]he following (non-exclusive) cases cannot be considered not in order: /.../ - tender sent in one copy only, instead of the three (or more) required". The Ombudsman finds no evidence to suggest that the same rules, i.e. point 10.5 of the Vade Mecum, were not applied equally to all bids. 4.6 In view of the above, the Ombudsman finds no maladministration by the Commission in relation to the complainant's further arguments. 4.7 However, the Ombudsman notes that, despite the fact that point 10.5 of the Vade Mecum on Public Procurement Procedures appears to have been equally applied to all bidders, it does not seem to correspond to the wording of the call for tender in question (ENV.D.1/ATA/2003/0049), which suggests that bids not submitted in one signed original and two copies will not be considered valid. The Ombudsman considers that to ignore a failure to comply with a provision of the call for tender could seem unfair to bidders who do comply with the provision in question. In order to avoid the possible appearance of unfairness in future, the Ombudsman suggests that

280

it could be useful for the Commission to re-examine the relationship between the Vade Mecum and calls for tenders as regards the number of copies of bids that are required to be submitted and communicate to him its findings. The Ombudsman will make a further remark to this effect below. 5. The complainant's claims 5.1 The complainant claims that the Commission should: i) reassess ECTA's offer; and ii) compensate ECTA for being wrongly excluded from the tender procedure. 5.2 In view of the finding of no maladministration as regards the application of the award criteria and the evaluation of ECTA's bid (parts 2 and 3 above), the Ombudsman finds no grounds to pursue the complainant's two claims. 6. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark as regards the complainant's allegation of confusing and inconsistent messages: On 2 December 2003, the complainant wrote to the Commission trying to rebut the Commission's reasons for rejecting ECTA's bid, as provided in the Commission's letter of 1 December 2003. The Ombudsman further notes that, in reply, the Commission provided further reasons for rejecting ECTA's bid, without explaining that these reasons were additional to the ones given in its first letter. Furthermore, in its reply, the Commission does not appear to acknowledge or answer the complainant's attempt to rebut the first reasons that the Commission had given for rejecting the bid. In the Ombudsman's view, by not acknowledging or answering the complainant's arguments, but merely giving additional reasons for rejecting ECTA's bid, the Commission failed to reply as completely and accurately as possible to the complainant's letter of 2 December 2003, as required by the Code of Good Administrative behaviour. This constitutes an instance of maladministration. Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. As regards the complainant's allegations and arguments concerning the award criteria, the evaluation of ECTA's bid, the deadline for submitting bids and the number of copies to be submitted, the Ombudsman's inquiries have revealed no maladministration by the Commission. On the basis of the above, the Ombudsman closes the case. The President of the Commission will also be informed of this decision.

281

FURTHER REMARKS 1. The Ombudsman notes the Commission's statement that although not obliged to do so, it normally sends letters concerning the evaluation of bids by fax. In order to ensure equal treatment of bidders, the Ombudsman suggests that the Commission could consider formalising and clarifying its procedures in this regard, communicating its conclusions to him. 2. The Ombudsman further notes that, despite the fact that point 10.5 of the Vade Mecum on Public Procurement Procedures appears to have been equally applied to all bidders, it does not seem to correspond to the wording of the call for tender in question (ENV.D.1/ATA/2003/0049), which suggests that bids not submitted in one signed original and two copies will not be considered valid. The Ombudsman considers that to ignore a failure to comply with a provision of the call for tender could seem unfair to bidders who do comply with the provision in question. In order to avoid the possible appearance of unfairness in future, the Ombudsman suggests that it could be useful for the Commission to re-examine the relationship between the Vade Mecum and calls for tenders as regards the number of copies of bids that are required to be submitted and communicate to him its findings. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Article 12 of the European Code of Good Administrative Behaviour, available on the Ombudsman's website: http://www.euro-ombudsman.eu.int See the European Ombudsman's Annual Report for 1997, pp 22., available at the Ombudsman's website: http://www.euro-ombudsman.eu.int/report97/pdf/en/rap97_en.pdf

(2)

282

Decision of the European Ombudsman on complaint 620/2004/PB against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 14 December 2005

Dear Mr X., On 25 February 2004, you made a complaint to the European Ombudsman concerning Commission inquiries originating in a harassment claim made against yourself. On 17 March 2004, I received your addendum. On 5 April 2004, I forwarded the complaint to the President of the European Commission, and informed you accordingly. In an e-mail dated 12 April 2004, you clarified your allegations. On 6 May 2004, I informed the Commission of your clarifications. The Commission sent its opinion on 22 June 2004. I forwarded it to you with an invitation to make observations, which you sent on 23 July 2004. On 17 November 2004, I sent the Commission a letter of further inquires, and informed you accordingly on the same date. The Commission sent its reply on 28 January 2005, and I forwarded it to you for observations. You sent your observations on 28 February 2005. I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT The complaint was submitted by a Commission official, who had been accused of moral harassment by another official, Mr A.(1) The complaint concerned the Commission's administrative inquiry into the complaint of moral harassment and its response to the complainant's subsequent requests for an examination of that inquiry. On 12 October 2001, Mr A. had lodged a request for assistance pursuant to Article 24 of the Staff Regulations of Officials of the European Communities ("the Staff
283

Regulations"), alleging moral harassment by the complainant. On 17 October 2001, Mr B., Head of Unit within Directorate-General Personnel and Administration of the European Commission ("DG ADMIN"), assisted by Mr C., were asked to conduct an administrative inquiry into these allegations. The complainant, accompanied by his lawyer, was heard by Mr B. and Mr C. on 27 November 2001. On 26 March 2002, the complainant and his lawyer were given the opportunity to examine Mr B.'s and Mr C.'s inquiry report, apart from the annexes, on the Commission's premises. The report concluded that there was evidence indicating that the complainant had morally harassed Mr A. and other officials. The complainant submitted his comments on the report on 30 March 2002. On 16 April 2003, the complainant made a request under Article 90(1) of the Staff Regulations ("Article 90(1) request") and a request for assistance under Article 24 of those regulations. He sought protection and assistance in relation to the actions of the two officials who had conducted the administrative inquiry, and made a claim for compensation for their alleged wrongdoings. His grievances may be summarised as follows: a) The complainant had not been given full access to all relevant documents of the inquiry, including the complaint by Mr A., the mandate of Mr B. and Mr C., the statements made by other officials, and the full report drawn up by Mr B. and Mr C. b) The complainant had been intimidated and put under pressure. At the hearing on 27 November 2001, Mr C. had been introduced to him as "Dr" C., the reason for which the complainant assumed to be that he "should view [Dr C.] as someone to confide in as a Doctor rather than as an investigator into my conduct"; Mr C. had raised his voice during the hearing of the complainant on 27 November 2001; the summary report of the hearing given to the complainant had been signed; and the complainant had been allowed only two days to submit his comments on that summary. c) Damaging statements had been made in connection with the inquiry. According to the complainant, the inquiry report contained a statement by Mr B. and Mr C., which was not shown to the complainant, to the effect that he was "probably not a good "..." as two other officials stated, in audition statements unseen, that I was arrogant". Furthermore, the complainant suspected that Mr B. and Mr C. might, while the inquiry was ongoing, have contacted his head of service and his future head of unit in order to inform them about their findings. d) The complainant suspected that Mr B. had asked the complainant's superior to issue an "admonition" against him, based on the findings that he and Mr C. had made. The complainant appeared to consider that this was unlawful, an "admonition" being a sanction not mentioned in the Staff Regulations.

284

The complainant asked the Commission for financial compensation for stress, suffering, and damage to his reputation, and requested the Commission to pay his legal expenses incurred in relation to the inquiry. Following the complainant's Article 90(1) request, DG ADMIN opened an administrative verification(2). The complainant was heard by the designated investigator, Mr D., on 3 June 2003. On the same date, he was informed by DG ADMIN that no disciplinary measures would be taken against him on the basis of Mr A.'s harassment complaint, and that the administrative inquiry had been closed. The four-month deadline stipulated in Article 90(1) of the Staff Regulations passed without a decision being communicated to the complainant. On 29 September 2003, the complainant therefore made a complaint, under Article 90(2) of the Staff Regulations ("Article 90(2) complaint"), against the Commission's implicit rejection of his Article 90(1) request. On 4 March 2004, the Commission rejected the complaint. It appeared from the Commission's decision that the investigator in charge had interviewed Mr B., Mr C., and Mr E., a staff representative who had been present at the hearing of the complainant held on 27 November 2001. The Commission rejected the complainant's grievances as being unfounded or lending themselves to diverging interpretations of the events and facts concerned. The Commission in particular emphasised that the team conducting the administrative inquiry had not been obliged to give the complainant the whole file of the inquiry. It stated that, "to satisfy the principle of confidentiality", the complainant could not have been given a copy of the inquiry report the said team had prepared. It furthermore pointed out that a Commission decision laying down rules for administrative inquiries had been adopted subsequent to the inquiry here concerned, and stated that "[i]t is important to note in this context that [that Decision] offers new procedural options that did not previously exist. Before that Decision, [the Commission] allowed [an] official subject to an administrative inquiry to read the inquiry report but not take a copy of it, so as to protect confidentiality and the need for discretion since this was not a disciplinary procedure. Only since the adoption of the above Decision does the official concerned have access to the inquiry conclusions before the final report is drawn up. So, in the absence of a legal basis, the appointing authority is of the opinion that [the Commission] did not have to provide the inquiry report to [the complainant]". The Commission also pointed out that the complainant had in fact been promoted to grade A* in 2002, and that the inquiry had therefore not resulted in any concrete professional detriment to the complainant. In his complaint to the Ombudsman, the complainant appeared to allege that the Commission had failed to adequately examine the actions that he had contested in his Article 90(1) request and in his Article 90(2) complaint. He referred to the

285

Commission's handling of the matter generally, and in particular to the fact that the Commission had, in his view, failed to call additional witnesses, and that it had given Mr B. and Mr C. access to Mr D.'s administrative verification report before that report was sent to the Appointing Authority. In his complaint to the Ombudsman, the complainant made, in summary, the following allegations: 1. His rights of defence had not been respected in the handling of an administrative inquiry of which he had been the subject. 2. There had been an attempt to apply a sanction against him which was not provided for in the Staff Regulations. 3. The Commission had failed adequately to examine the actions that he had contested in his Article 90(1) request and in his Article 90(2) complaint. 4. The Commission's decision following his Article 90(1) request and his Article 90(2) complaint had been unreasonably delayed. He made the following claims: 1. The Commission should compensate him for the behaviour of the officials whose actions he had contested in his Article 90(1) request and in his Article 90(2) complaint. 2. The Commission should pay his legal expenses.

THE INQUIRY The Commission's opinion The Commission submitted, in summary, the following opinion: Background Following the hearing of 19 officials, Mr B. and Mr C. had concluded in their inquiry report that there was evidence indicating moral harassment by the complainant. However, "[b]ecause there was no precedent", the Director General of DirectorateGeneral Personnel and Administration of the European Commission ("DG ADMIN") had decided not to open disciplinary proceedings on the basis of Annex IX of the Staff Regulations until the outcome of other inquiries became known. By doing so, DG ADMIN had "expected to better ascertain the relative gravity of different sets of facts".

286

The Commission emphasised that the administrative and legal context concerning administrative inquiries had evolved significantly since the administrative inquiry carried out by Mr B. and Mr C. When the administrative inquiry had been opened on 17 October 2001, the Commission did not have a disciplinary office, and inquiries were largely conducted on the basis of past practice. On 19 February 2002, that is, after the completion of the investigation report drawn up by Mr B. and Mr C., Commission Decision C(2002)540 had entered into force. This decision created the Commission's disciplinary office ("IDOC") and defined precise rules for the conduct of administrative inquiries, including rules aimed at protecting the persons subject to such inquiries. The decision applied to pending inquiries. Commission Decision C(2002)540 was replaced on 1 May 2004 by Commission Decision C(2004)1588 on the general implementing provisions on the conduct of administrative inquiries and disciplinary procedures. Annex IX of the amended Staff Regulations furthermore contains new rules for administrative inquiries. The complaint With regard to the allegation that the complainant's rights of defence had not been respected, the Commission stated that there is a "radical distinction" between two procedural stages: disciplinary proceedings, where officials must clearly have the means to defend themselves because a decision affecting their rights might be taken; and, administrative inquiries, which are part of a preparatory procedure aimed at establishing facts and possible individual responsibilities. During the administrative inquiry, the investigating officials of DG ADMIN (now IDOC) did not disclose complaints from alleged victims of harassment. This was due to a need to protect the investigation and the confidentiality of the person having made the harassment complaint. In the present case, the complainant and his lawyer (a) had nevertheless been informed in general terms about the harassment complaint, through the complainant's superior; (b) had, contrary to what had been claimed by the complainant, seen the mandate of the administrative inquiry; (c) had had access to the investigation report drawn up by Mr B. and Mr C., apart from the annexes. Commission Decision C(2002)540 did not give the persons subject to an administrative inquiry any right of access to all the documents concerning them. At the end of the administrative inquiry, the official concerned was offered the opportunity to comment on the conclusions before a report was finalised. However, the official would not be given access to a copy of the complaint nor to the full inquiry report. According to the Commission, the rule that, at the stage of the administrative inquiry, access to the investigation file was limited to the "conclusions of the report in so far as they mention facts that concern him" (Article 5(5) of Commission Decision C(2002)540), and not the entire file, had been confirmed in the amended Staff Regulations. Article 2(2) of Annex IX of the Staff Regulations, as amended, provided that "[t]he Appointing Authority shall inform the person concerned when the

287

investigation ends, and shall communicate to him the conclusions of the investigation report and, on request and subject to the protection of the legitimate interests of third parties, all documents directly related to the allegations made against him." The third parties to be protected include the alleged victims of harassment. The Commission stated that the situation was entirely different when the Appointing Authority opened disciplinary proceedings. In that case, a decision affecting the rights of the individual concerned might be adopted, and therefore the Staff Regulations (in their previous as well as in their new versions) provided for full access to the file. With regard to the actions of Mr B. and Mr C. in relation to the hearing of the complainant on 27 November 2001, the Commission submitted that the complainant's allegations were unfounded. It thus confirmed the finding of the Appointing Authority, according to which introducing Mr C. as "Dr" C. was not intended to disconcert the complainant. It also confirmed the finding that the question as to whether Mr C. had raised his voice during the hearing had proved impossible to clarify, due to divergent statements by the persons present at the hearing as to what had really happened. With regard to the signed summary report of the hearing of 27 November 2001, the Commission stated that it was normal practice to agree on the summary report immediately after the hearing, regardless of how much time this could take, before the person heard had left the investigating authority's premises. The investigating officials accepted not to follow this normal practice at the complainant's request, in light of his assurance that he would submit his comments within two days. As for the signing of the summary report, the purpose of providing a signed draft was merely to show that the investigating officials considered that the summary report accurately reflected the statements made during the hearing. It was clearly not the case that it was presented to the complainant signed in order to put pressure on him. In any event, the summary report had no standing whatsoever without the complainant's signature. Concerning the allegedly damaging statements made during the inquiry, the Commission first stated that it was unclear why Mr B. and Mr C. made the statement that the complainant was probably not a 'good " ... " ' in a report aimed at establishing the facts concerning alleged moral harassment. The investigator in charge of the administrative verification procedure, Mr D., had asked Mr B. and Mr C. about this. Both had replied that they understood the complainant to have a reputation as a good "..." and added that they were not in a position to make their own, let alone a negative, judgment. With regard to the contacts made to the complainant's director and his future head of unit, the Commission stated that alerting the complainant's future head of unit to a situation, of which everyone in the complainant's service was aware and which he would invariably have to address once he took up his new functions, seemed only reasonable. In relation to the allegation of an allegedly unlawful sanction having been proposed against the complainant, the Commission stated that the Appointing Authority had asked the complainant's director to send him an "admonition". The Commission

288

furthermore stated that Article 86 of the Staff Regulations (now Article 9 of Annex IX of the amended Staff Regulations) set out a comprehensive list of disciplinary actions (written warning, reprimand etc.) which did not include an "admonition". An "admonition" was therefore clearly not a disciplinary sanction. Rather, an "admonition" was close to the "warning" recently introduced by the amended Staff Regulations, which is expressly defined as not being a disciplinary sanction (Article 3(b) of Annex IX). The Commission stated that this issue was in any event a moot point since no such "admonition" had ever been issued. The Commission stressed that the complainant had obtained a promotion to grade A* in 2002. With regard to the allegedly inadequate examination of his Article 90(1) request and his Article 90(2) complaint, the Commission emphasised that the administrative verification procedure was aimed at establishing facts. It was not a fully-fledged administrative inquiry into the earlier allegations against the complainant. The investigator in charge had concluded that it sufficed to hear the complainant, Mr B., Mr C., and Mr E., the staff representative present at the hearing of the complainant on 27 November 2001. With regard to the allegedly unreasonable delays, the Commission referred to its administrative verification carried out in response to the complainant's Article 90(1) request, the results of which had been available on 5 August 2003, and the fact that the complainant's request had been implicitly rejected when the Commission did not provide him with an express decision on that request within the four-month deadline in Article 90(1). With regard to the complainant's Article 90(2) complaint of 29 September 2003, the Commission stated that the complainant, Mr B. and Mr C. had been invited to submit their comments on the report drawn up by Mr B. following his administrative verification procedure. It was not until the Commission had received those comments, on 16 December 2003 and 12 January 2004, that the Commission had had the necessary elements to take a decision on the Article 90(2) complaint. The Commission stated that "considering in particular the complexity of the complaint, the Commission believes that it has handled this case very carefully. It was this very complexity and care that impaired the Appointing Authority's ability to provide a reasoned reply to the complainant more quickly". With regard to the allegation that the Commission had failed to adequately examine the actions that he had contested in his Article 90(1) request and in his Article 90(2) complaint, the Commission rejected the allegation, giving a general outline of its handling of the matter. Regarding the alleged failure to call witnesses, it stated that Mr D. had decided that it would suffice to hear the two officials who conducted the administrative inquiry, a staff representative and the complainant. It stressed that on the basis of the witnesses' statements, the Appointing Authority had had no doubt that the complainant's allegations regarding Mr B. and Mr C. were unfounded. As regards Mr B.'s and Mr C.'s access to the verification report, the Commission explained that the purpose of giving access had been to make sure that the facts had been correctly established.

289

It followed from the Commission's rejection of the complainant's allegations that it did not intend to meet the complainant's claims. The complainant's observations In his observations, the complainant maintained his allegations and claims and made a number of detailed remarks related thereto. Regarding the question of access to the file, he pointed out that the Memorandum to Commission Decision C(2002)540 stated that "[o]fficials are entitled to be given copies of all documents relating to them". He argued that the Commission's position in the present case was not consistent with this statement. The complainant furthermore emphasised that he hoped that the outcome of the Ombudsman's inquiry would result in more clarity and transparency in the conducting of inquiries carried out by DG ADMIN, and that, in particular, the rights of defence would be better respected in the future. Further inquiries The further inquiries After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman therefore asked the Commission to submit additional information on the following matters: (1) the legal basis for asking the complainant's superior to issue an "admonition"; (2) when and how the Commission had sent the complainant a copy of the inquiry report; (3) when and how the Commission had allowed the complainant to see the mandate of Mr B. and Mr C.; and (4) the extent to which the Commission's position was consistent with the Memorandum published together with Commission Decision C(2002)540. The Commission's reply (1) In its reply, the Commission referred to its earlier remarks and stated that "the fact that a superior has authority over his subordinates unquestionably entitles him to give them an immediate informal warning, either orally or in writing, without reporting the matter for possible disciplinary proceedings". (2) The Commission stated that following adoption of Commission Decision C(2002)540 of 19 February 2002, its practice was to allow the official concerned to comment on the conclusions of the administrative inquiry report before the finalisation of the report. In the present case, the head of the investigating team informed the complainant on 14 March 2002 that he had sent the report to the Director-General of DG ADMIN, but that, in light of the Commission decision referred to above, he had decided to allow him access to the inquiry report and to comment on it. The complainant and his lawyer were given access to the full report on

290

26 March 2002 (apart from the annexes). Thus, the complainant was not given access only to the conclusions of the report. On 30 April 2004, the complainant submitted his comments on the report, challenging its findings. (3) The Commission did not have any written evidence that the complainant had actually read the mandate of Mr B. and Mr C. However, the minutes of the hearing held on 27 November 2001, signed by the complainant, showed that he had been made aware of the subject of the administrative inquiry. (4) It is stated in the Memorandum to Commission Decision C(2002)540 that "[o]fficials are entitled to be given copies of all documents relating to them". However, this must be interpreted in light of the Decision itself, namely Article 5(5) which provided that "[a]t the end of the enquiry, and before a report is finalised an official has the right to comment on the conclusions in so far as they mention facts that concern him". The Commission noted that Article 7(3) of Commission Decision C(2002)540 provided that "[o]n receipt of the report and on request of the official concerned, the appointing authority shall provide the official with copies of all documents directly related to the allegations made against him or her." However, Article 7(3) appeared under Chapter III of the Decision, "Article 87 hearing" (referring to Article 87 of the Staff Regulations at the time(3)). Administrative inquiries, on the other hand, were regulated under Chapter II of the Decision. The Commission concluded that Article 7(3) would evidently have been unnecessary in Chapter III of the Decision if the official concerned had already received copies of all documents during the administrative inquiry. The complainant's observations In his observations, the complainant maintained his allegations and claims.

THE DECISION 1. Alleged failure to respect rights of defence 1.1 The complaint was submitted by a Commission official, an "..." ". On 12 October 2001, Mr A., another Commission official, had lodged a request for assistance pursuant to Article 24 of the Staff Regulations of Officials of the European Communities ("the Staff Regulations"), alleging moral harassment by the complainant. On 17 October 2001, Mr B., Head of Unit of Directorate General for Personnel and Administration of the European Commission ("DG ADMIN"), assisted by Mr C., received a mandate to conduct an administrative inquiry into these allegations. The complainant, accompanied by his lawyer, was heard by Mr B. and Mr C. on 27 November 2001. On 26 March 2002, the complainant and his lawyer were given the opportunity to examine Mr B.'s and Mr C.'s inquiry report at the Commission's premises. The complainant submitted his comments on the report on 30 March 2002. It was concluded in the report that there was evidence to indicate that the

291

complainant had morally harassed Mr A. and other officials. It was decided, however, not to open disciplinary proceedings. In the meantime, the Appointing Authority asked the complainant's director to send him an admonition ("admonestation" in French). On 16 April 2003, the complainant made a request under Article 90(1) of the Staff Regulations ("Article 90(1) request") and a request for assistance under Article 24 of the Staff Regulations. He sought protection and assistance in relation to the actions of Mr B. and Mr C., and made a claim for compensation for their alleged wrongdoings. He also asked for an administrative inquiry to be opened. DG ADMIN opened an administrative verification, designating Mr D. as the official in charge. Mr D. interviewed Mr B., Mr C. and the staff representative who had been present at the hearing on 27 November 2001, and conducted a formal hearing of the complainant on 3 June 2003. On that same date, he was informed by DG ADMIN that no disciplinary measures would be taken against him on the basis of Mr A.'s harassment complaint, and that the administrative inquiry had been closed. Not having received a decision in response to his Article 90(1) request within the stipulated four-month deadline, the complainant submitted a complaint under Article 90(2) of the Staff Regulations ("Article 90(2) complaint"). On 4 March 2004, the Appointing Authority adopted a decision rejecting the complainant's Article 90(2) complaint. 1.2 In his complaint to the Ombudsman, the complainant alleged that his rights of defence had not been respected in the handling of the administrative inquiry of which he had been the subject. He raised a number of points: a) The complainant had not been given full access to all relevant documents of the inquiry, including the complaint by Mr A.; the mandate of Mr B. and Mr C.; the statements made by other officials; and the full report drawn up by Mr B. and Mr C. b) The complainant had been intimidated and put under pressure. At the hearing of 27 November 2001, Mr C. had been introduced to him as "Dr" C., the reason for which the complainant assumed to be that he "should view [Dr C.] as someone to confide in as a Doctor rather than as an investigator into my conduct". Mr C. had raised his voice during the hearing of the complainant on 27 November 2001; the summary report of the hearing given to the complainant had been signed, and the complainant had been allowed only two days to submit his comments on that summary. c) Damaging statements had been made in connection with the inquiry. According to the complainant, the inquiry report contained a statement by Mr B. and Mr C., which was not shown to the complainant, to the effect that the complainant was "probably not a good "..." as two other officials stated, in audition statements unseen, that I was arrogant". Furthermore, the complainant suspected that Mr B. and Mr C. might, while the inquiry was ongoing, have contacted his head of service and his future head of unit in order to inform them about their findings.

292

1.3 In its opinion, the Commission first explained that the administrative and legal context concerning administrative inquiries had evolved significantly since the administrative inquiry carried out by Mr B. and Mr C. When the administrative inquiry had been opened on 17 October 2001, the Commission did not have a disciplinary office, and inquiries were largely conducted on the basis of past practice. On 19 February 2002, that is, after the completion of the investigation report drawn up by Mr B. and Mr C., Commission Decision C(2002)540 had entered into force. This decision had created the Commission's disciplinary office ("IDOC") and defined precise rules for the conduct of administrative inquiries, including rules protecting the persons subject to such inquiries. The decision applied to pending inquiries. Commission Decision C(2002)540 had been replaced on 1 May 2004 by Commission Decision C(2004)1588 on the general implementing provisions on the conduct of administrative inquiries and disciplinary procedures. Annex IX of the amended Staff Regulations furthermore contains new rules for administrative inquiries. 1.4 With regard to the alleged failure to respect the complainant's rights of defence during the administrative inquiry, the Commission rejected the complainant's allegation. It emphasised the distinction between administrative and disciplinary inquiries. According to the Commission, the former are merely part of a preparatory procedure aimed at establishing facts and possible individual responsibilities; disciplinary proceedings, on the other hand, may result in a decision being taken against the official concerned, who should therefore clearly be in a position to establish a defence. Commission Decision C(2002)540 gave the person subject to an administrative inquiry the right to see only the conclusions of the report drawn up on the basis of the inquiry. This reflected the established administrative practice in place before the adoption of that decision. Furthermore, the rule that, at the stage of the administrative inquiry, access to the investigation file was limited to the conclusions of the report had, according to the Commission, been recently confirmed in the amended Staff Regulations, Article 2(2) of Annex IX ("the Appointing Authority shall inform the person concerned when the investigation ends, and shall communicate to him the conclusions of the investigation report and, on request and subject to the protection of the legitimate interests of third parties, all documents directly related to the allegations made against him"). According to the Commission, the third parties to be protected included the alleged victims of harassment. The Commission also noted, however, that the complainant had in fact been allowed access to the text of the inquiry report, apart from the annexes. 1.5 In their replies made in the context of further inquiries conducted by the Ombudsman, the Commission and the complainant confirmed their positions. 1.6 The Ombudsman first observes that the Commission stated in its 2002 consultative document "The Reform of Disciplinary Proceedings"(4) that "[...] the Commission may organise an administrative enquiry although these are not explicitly foreseen by the Staff Regulations. The scope and purpose of administrative enquiries vary widely. The object may be to elucidate a particular situation without focussing on individuals. Equally, however, an enquiry may be organised in order to clarify individual

293

responsibilities for suspected wrong-doing. In both cases, officials can be mandated by the Director General of DG ADMIN to produce a report, including, if appropriate, a recommendation as to the need for disciplinary proceedings against any individual" (p. 5). 1.7 According to settled case-law of the Community Courts, respect for the rights of defence constitutes a general principle of Community law which must be observed even in the absence of an express provision(5). This principle applies to any procedure which may result in a decision perceptibly affecting in an adverse way a person's interests(6). 1.8 In the present case, a complaint had been made by Mr A. to the Commission, specifically against the complainant. The complaint contained allegations of the serious wrongdoing of harassment on the complainant's part. The Commission decided to open an administrative inquiry specifically in order to examine those allegations against the complainant. In doing so, the Commission set up a team of investigators, which took testimonies from 19 witnesses and also heard the complainant. As pointed out in the Commission's opinion in the present case, the investigating team concluded in the inquiry report that there was evidence indicating moral harassment by the complainant. Following this report, a proposal was made for the issuance of an "admonition" to the complainant - that is, a kind of warning - that would, had it been issued, have formed part of the complainant's file(7). Moreover, as it emerges from the Commission's opinion, the findings in the inquiry report would be, and were, in fact, taken into account by the Director General of DG ADMIN in taking a decision as to whether disciplinary proceedings should be initiated against the complainant. 1.9 Thus, although the conclusions in the inquiry report did not amount to an administrative decision directly affecting the rights and interests of the complainant, they were capable of having negative consequences for the complainant and might result in a decision perceptibly affecting in an adverse way his legitimate interests. The Ombudsman therefore takes the view that although, at the time of the administrative inquiry here concerned, it appears that there were no written rules regarding the right to a hearing in the context of such an inquiry, the contested inquiry report, which completed the administrative inquiry procedure, could not be finalised without due respect for the rights of defence(8). 1.10 Furthermore, the Ombudsman considers that observance of the right to a prior hearing in the context of an administrative inquiry such as the one at issue, requires, as a matter of principle, that the person concerned should be given notice of the preliminary factual findings made by the investigators and of the substance of the relevant supporting evidence. Any decision not to communicate such information to the person concerned should be based on specific considerations relevant to the facts of the administrative inquiry concerned. Such considerations could include third party interests, such as highly sensitive privacy issues(9). Moreover, in applying the rights of defence in the context of an administrative inquiry such as the one at issue, regard

294

must be had to the fact that the potential negative impact of the inquiry on the rights and interests of the person concerned is less significant than in the case of disciplinary proceedings. In the same context, due consideration must also be given to the Administration's legitimate interests, such as preserving the confidentiality of its investigations in order to minimise disruption in the workplace. Taking into consideration these factors, the Ombudsman finds that the right to a prior hearing in the present case did not require all the materials included in, or annexed to, the inquiry report, or the full file of the administrative inquiry, including Mr A's complaint or the mandate of the investigators, or the statements made by other officials, to be communicated to the complainant. Relatedly, the Ombudsman notes that the complainant could exercise his rights of defence in a meaningful way, without being granted access to the foregoing documents, provided that he had been notified of the preliminary factual findings made by the investigators and of the substance of the relevant supporting evidence. The Ombudsman further finds that the principle of the right to a prior hearing did, however, require that the complainant should be informed of those preliminary findings and of the substance of the evidence relied upon before the inquiry report was finalised. It appears from the Commission's opinion in this case that the head of the investigating team informed the complainant on 14 March 2002 that he had already sent the inquiry report to the Director-General of DG ADMIN. Although Mr B. subsequently decided to allow the complainant access to the inquiry report (without the annexes) and to comment on it, it appears that the investigating team had effectively finalised the contested administrative inquiry report, and forwarded it to the Director-General of DG ADMIN, without informing the complainant of, and without giving him a reasonable opportunity to comment on, its preliminary findings and the evidence relied upon. In the Ombudsman's view, this amounted to a failure to respect the complainant's right of defence, and therefore to an instance of maladministration. A critical remark is made below. 1.11 The complainant also alleged that he had been intimidated and put under pressure. More specifically, the complainant stated that Mr C. had been introduced to him as "Dr" C., which made him assume that he "should view [Dr C.] as someone to confide in as a Doctor rather than as an investigator into my conduct". He also argued that Mr C. had raised his voice during the hearing of the complainant on 27 November 2001. And he pointed out that the summary report of this hearing given to him had been signed, and that he had been allowed only two days to submit his comments on that summary. 1.12 In its opinion, the Commission essentially confirmed its previous position that introducing Mr C. as "Dr" C. was not intended to disconcert the complainant. It also confirmed that the question as to whether Mr C. had raised his voice during the hearing had proved impossible to clarify due to divergent statements of the persons who had been present at the hearing as to what had happened. With regard to the signed summary report of the hearing of 27 November 2001, the Commission explained that the purpose of providing a signed draft was merely to show that the investigating officials considered that the summary report accurately reflected the statements made during the hearing. It was thus not presented to the complainant

295

signed in order to put pressure on him. In any event, the summary report had no standing whatsoever without the complainant's signature, as is shown by the fact that the investigating officials awaited his comments and accepted to include most of them in the final summary report of the hearing. The Commission furthermore stated that such summary reports are normally finalised and signed by all the parties concerned on the same day. The complainant had exceptionally been allowed to take the summary report with him. 1.13 The Ombudsman notes that the complainant, in essence, alleges that the investigators acted in a misleading, abusive and oppressive manner in the context of the hearing that took place on 27 November 2001 and in the context of the adoption of the relevant summary report. As to the complainant's first argument, the Ombudsman cannot exclude that introducing an investigating officer during a hearing as "Dr" may amount to an intimidating or misleading action, taking into consideration the totality of the surrounding circumstances. However, in the present case, the mere fact that the complainant assumed that he "should view [Dr C.] as someone to confide in as a Doctor rather than as an investigator into my conduct" is not sufficient to establish such reprehensible conduct on the part of the investigators. Hence, the Ombudsman cannot find maladministration as regards this aspect of the case. 1.14 As regards Mr C.'s alleged raising of his voice during the hearing, the Ombudsman notes that the Commission concluded, following its administrative verification, that there were divergent recollections regarding this matter. Since no conclusive evidence was submitted to the Ombudsman on this matter, the Ombudsman considers that the complainant's allegation has not been substantiated. Hence, the Ombudsman cannot find maladministration as regards this aspect of the case. 1.15 With regard to the fact that the complainant received a signed summary report of the hearing, the Ombudsman notes the Commission's statement that the purpose of providing a signed draft was merely to show that the investigating officials considered that the summary report accurately reflected the statements made during the hearing. The Ombudsman considers that the Commission's explanation is reasonable and adequate. Furthermore, since the Ombudsman has not been provided with any evidence casting doubt on the truthfulness of this explanation, the Ombudsman finds no maladministration regarding this aspect of the case. With regard to the complainant's allegation that he was given only two days to submit his comments on the summary report of the hearing, the Ombudsman notes that the complainant has not established that the two-day deadline for checking, and commenting on, the factual accuracy and the adequacy of the contents of the summary report, was unreasonably short. Hence, the Ombudsman cannot find maladministration as regards this aspect of the case. 1.16 With regard to the complainant's view that damaging statements had been made in connection with the inquiry, the Ombudsman refers to his finding in point 3 below.

296

1.17 With regard to the information conveyed to the complainant's superiors, the Commission has stated that alerting the complainant's future head of unit to a situation of which everyone in the complainant's service was aware and which he would invariably have to address once he took up his new functions seemed only reasonable. In light of the facts of the present case, the Ombudsman does not consider that the Commission's position in this respect is unreasonable. There has therefore been no maladministration regarding this aspect of the case. 2. Sanction not provided for in the Staff Regulations 2.1 The complainant alleged that there had been an attempt to apply a sanction against him which was not provided for in the Staff Regulations. He referred to a proposal that an "admonition" should be issued against him. The complainant considered that the attempt to have an "admonition" issued against him was unlawful. 2.2 In its opinion, the Commission stated that Article 86 of the Staff Regulations (now Article 9 of Annex IX of the amended Staff Regulations) set out a comprehensive list of disciplinary actions (written warning, reprimand etc.) which did not include the possibility of giving an "admonition". It stated that an "admonition" was therefore clearly not a disciplinary sanction. Rather, an "admonition" was, according to the Commission, close to the "warning" recently introduced by the amended Staff Regulations, which is expressly defined as not being a disciplinary sanction (Article 3(b) of Annex IX of the Staff Regulations). In its reply to the Ombudsman's further inquiries, the Commission added that "the fact that a superior has authority over his subordinates unquestionably entitles him to give them an immediate informal warning, either orally or in writing, without reporting the matter for possible disciplinary proceedings". In its reply to the Ombudsman's further inquiries, the Commission emphasised that "administrative inquiries" were regulated under Chapter II of Commission Decision C(2002)540, and that the Decision's rules relevant to "Article 87 hearings"(10) were set out in Chapter III. 2.3 The Commission's power to issue warnings to its staff was laid down in Article 87 of the Staff Regulations in force at the time the relevant facts of the present case took place. However, it appears from the Commission's reply to the Ombudsman's further inquiries that it did not consider the administrative inquiry to have been an "Article 87 hearing". In the same reply, the Commission pointed out that a superior's "authority over its subordinates", entitles him to give them "an immediate informal warning". 2.4 In the Ombudsman's view, an "admonition" issued after the completion of the administrative inquiry here concerned, could not have been tantamount to an "immediate informal warning". In light of the above, the Ombudsman finds that the Commission has failed to invoke valid legal grounds in support of its position that the issuance of the proposed admonition would have been a lawful measure. However, since no admonition was issued against the complainant, the Ombudsman concludes that no further inquiry into, and consideration of, this part of the complaint is justified.

297

3. Failure adequately to examine Article 90 request and complaint 3.1 The complainant alleged that the Commission had failed to adequately examine the actions that he had contested in his Article 90(1) request and in his Article 90(2) complaint. In this regard, the complainant stated that the Commission had wrongly failed to call additional witnesses in the administrative verification procedure. He also appeared to consider that the team that had conducted the administrative inquiry had wrongly been allowed access to Mr D.'s administrative verification report before that report was sent to the Appointing Authority. He furthermore considered that the Commission should have more thoroughly examined why the administrative inquiry report sent to the Appointing Authority had contained the statement that he was "probably not a good "..." ". He referred to page 3 of the Appointing Authority's decision on his Article 90(2) complaint, which denied that such a statement had been made. 3.2 In its opinion, the Commission rejected the allegation, giving an outline of its handling of the matter. Regarding the alleged failure to call witnesses for the administrative verification procedure, it stated that Mr D. had decided that it would suffice to hear the two officials who conducted the administrative inquiry, the staff representative who had been present at the hearing of 27 November 2001, and the complainant. As regards Mr B.'s and Mr C.'s access to the verification report, the Commission explained that the purpose of giving access had been to make sure that the facts had been correctly established. With regard to the disputed statement contained in the administrative inquiry report initially sent to the Appointing Authority, the Commission stated that it was unclear why Mr B. and Mr C. had made the statement that the complainant was probably not a "good "..." " in a report aimed at establishing the facts concerning alleged moral harassment. The investigator in charge of the administrative verification procedure, Mr D., had asked Mr B. and Mr C. about this. Both had replied that they understood the complainant to have a reputation as a good "..." and added that they were not in a position to make their own, let alone a negative, judgment. 3.3 In his observations, the complainant maintained his allegation. 3.4 With regard to the calling of witnesses, the Ombudsman points out that the Administration has a certain margin of discretion as to which witnesses it considers necessary to call for the purpose of an administrative verification procedure. The Ombudsman does not consider that he has been given any evidence suggesting that Mr D. manifestly exceeded the limits of this discretion by failing to call the three additional witnesses proposed by the complainant. 3.5 With regard to Mr B.'s and Mr C.'s access to the verification report drawn up by Mr D., the Ombudsman points out that the verification procedure was essentially initiated in order to examine the complainant's allegations of errors in the way that Mr B. and Mr C. had conducted the administrative inquiry into Mr A.'s complaint against the complainant. Taking into account the principles referred to in points 1.7 - 1.10

298

above, the Ombudsman considers that it does not appear to have been unreasonable to give Mr B. and Mr C. access to the verification report before it was sent to the Appointing Authority. 3.6 With regard to the statement in the administrative inquiry report that was sent to the Appointing Authority - that is, that the complainant was "probably not a good "..." " - it appears from the facts of the case and the Commission's opinion that the Appointing Authority's decision on the complainant's Article 90(2) complaint denied that any such statement had been made, whereas the Commission in its opinion in the present case recognised that such a statement had in fact been made, and that the reasons for such a statement having been made could not be explained. It therefore appears that, in respect to this point, there was a failure to adequately examine the complainant's Article 90(2) complaint. This constituted an instance of maladministration, and a critical remark is made below. 4. Alleged delay 4.1 The complainant alleged that the Commission's decision following his Article 90(1) request and his Article 90(2) complaint had been unreasonably delayed. 4.2 In its opinion, the Commission rejected the allegation. It referred to its administrative verification procedure carried out in response to the complainant's Article 90(1) request, the results of which had been available on 5 August 2003, and to the fact that the complainant's request had been implicitly rejected when the Commission did not provide him with an express decision on that request within the four-month deadline provided for in Article 90(1). With regard to the complainant's Article 90(2) complaint of 29 September 2003, the Commission stated that the complainant and the team that had been responsible for conducting the administrative inquiry had been invited to submit their comments on the report that had been drawn up following the administrative verification procedure. It was not until the Commission had received those comments, on 16 December 2003 and 12 January 2004, that the Commission had had the necessary elements to take a decision on the Article 90(2) complaint. The Commission stated that "considering in particular the complexity of the complaint, the Commission believes that it has handled this case very carefully. It was this very complexity and care that impaired the Appointing Authority's ability to provide a reasoned reply to the complainant more quickly". 4.3 The complainant maintained his allegation 4.4 On 16 April 2003, the complainant made his Article 90(1) request. Article 90(1) of the Staff Regulations in force at the time provided (as do the amended Staff Regulations) that "Any person to whom these Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned decision within four

299

months from the date on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph." In order to examine the complainant's request, the Appointing Authority had asked an official to carry out an administrative verification. According to the Commission, the results of this verification were available on 5 August 2003. The Commission did not, however, send the complainant an explicit, reasoned decision on his Article 90(1) request. The complainant's request was therefore implicitly rejected on 16 August 2003. The complainant then made an Article 90(2) complaint on 29 September 2003, the terms of which were those of his Article 90(1) request. Article 90(2) of the Staff Regulations in force at the time provided (as do the amended Staff Regulations) that "[t]he authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged." (Emphasis added.) 4.5 According to Article 90(1) of the Staff Regulations, the Appointing Authority "shall" notify the person concerned of its reasoned decision within four months. As pointed out by the Ombudsman in his decisions on complaint 1479/99/(OV)MM and 729/2000/OV, this implies that the Appointing Authority has an obligation to communicate a decision to the person concerned within that four-month deadline. The rule that a lack of reply shall "be deemed to constitute an implied decision" is meant to establish a possibility of a legal remedy for the person concerned when the Appointing Authority does not respect this obligation. It does not give the Appointing Authority a right not to communicate a decision within the four-month deadline. In the present case, the Commission failed to communicate an explicit, reasoned decision to the complainant within the four-month deadline, and has not provided any explanation for this failure. The Ombudsman therefore takes the view that the Commission's failure to communicate an explicit, reasoned decision to the complainant within the four-month deadline constituted an instance of maladministration, and a critical remark is made below. 4.6 With regard to the Commission's decision on the complainant's Article 90(2) complaint, which was lodged on 29 September 2003, the Commission rendered its decision on 4 March 2004, that is, with a delay of little over five months from the date the complaint was made and a little over one month after the expiry of the four-month deadline. In order to explain this delay, the Commission has made a broad reference to the "complexity of the complaint", and the fact that it was only on 12 January 2004 that it had received all the interested parties' comments on the verification report made on the basis of the verification procedure carried out in relation to the complainant's Article 90(1) request. However, the Ombudsman notes that the terms of the complainant's Article 90(2) were the same as those of his Article 90(1) request, which had been implicitly rejected, and that, in respect of the latter, the Appointing Authority had ordered an administrative verification procedure to be carried out, the results of which had been made available on 5 August 2003. In the Ombudsman's view, the fact that the parties concerned by that administrative verification procedure were asked to

300

submit their comments on the verification report cannot satisfactorily explain the Commission's failure to decide, within the four-month deadline, on a matter that had already been dealt with in the course of the examination of the complainant's Article 90(1) request. Therefore, and without excluding that special circumstances may justify non-observance of the four-month deadline provided for in Article 90 (1) and (2) of the Staff Regulations, the Ombudsman considers that the Commission has not given adequate explanations for the delay in adopting a decision on the complainant's Article 90(2) complaint. The Ombudsman therefore takes the view that the Commission's failure to observe the four-month deadline in Article 90(2) of the Staff Regulations was an instance of maladministration, and a critical remark is made below. 5. Claim for compensation and legal expenses 5.1 The complainant claimed that the Commission should compensate him for the behaviour of the officials whose actions he had contested in his Article 90(1) request and in his Article 90(2) complaint, and that it should pay his legal expenses. As regards the claim for compensation, the complainant stated that this was related to the stress caused by the manner in which the inquiry had been conducted (see the issues referred to in point 1 above), and to the damage caused to his reputation as a consequence of the testifying officials having been made aware of the complaint against him. 5.2 According to settled case-law, for the Communities to be rendered liable it must be proved that the alleged conduct of the institution is illegal, that the damage is genuine and that there is a causal link between the conduct in question and the damage alleged(11). 5.3 With regard to the claim for legal expenses, the Ombudsman notes that the complainant has not alleged that the Commission's decision to conduct an inquiry into Mr A.'s complaint against him was in itself illegal. The Ombudsman furthermore notes that there appears to be no causal link between the claim here concerned and the maladministration found in respect to the allegation of a breach of the rights of defence (cf. points 1.7 - 1.10 above). Finally, the Staff Regulations do not provide for any express right to be reimbursed for legal expenses incurred in the course of the kind of inquiry here concerned. 5.4 In light of the foregoing, the Ombudsman does not consider that the claim for payment of the legal expenses can be accepted. 5.5 With regard to the non-material damage, the Ombudsman notes that he has made findings of maladministration in respect to (a) the failure to give the complainant a reasonable opportunity to comment on the preliminary findings of the administrative inquiry team, and on the evidence that it had relied upon, and (b) the Commission's failure to adequately examine one of the issues raised in the complainant's Article 90(2) complaint (see point 3.6 above). However, the Ombudsman considers that the

301

relevant critical remarks made below provide adequate redress in respect to those instances of maladministration. Regarding the remainder of the issues referred to by the complainant, the Ombudsman has made no findings of maladministration, and the claim for damages can therefore not be accepted in those respects. With regard to the complainant's reputation, the Ombudsman notes that the complainant has not alleged that it was illegal for the Commission to call witnesses in the course of the administrative inquiry. The Ombudsman furthermore considers that calling witnesses in the course of that inquiry does not appear to have been unreasonable. 5.6 In light of the foregoing, the Ombudsman cannot accept the complainant's claim for compensation for non-material damage. 6. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remarks: 1. The Ombudsman finds that the principle of the right to a prior hearing required that the complainant should be informed of the preliminary findings of the team conducting the administrative inquiry and of the substance of the evidence relied upon before the inquiry report was finalised. It appears from the Commission's opinion in this case that the head of the investigating team informed the complainant on 14 March 2002 that he had already sent the inquiry report to the Director-General of DG ADMIN. Although Mr B. subsequently decided to allow the complainant access to the inquiry report (without the annexes) and to comment on it, it appears that the investigating team had effectively finalised the contested administrative inquiry report, and forwarded it to the Director-General of DG ADMIN, without informing the complainant of, and without giving him a reasonable opportunity to comment on, its preliminary findings and the evidence relied upon. In the Ombudsman's view, this amounted to a failure to respect the complainant's right of defence, and therefore to an instance of maladministration. 2. It appears that the Appointing Authority's decision on the complainant's Article 90(2) complaint denied that the statement that the complainant was "probably not a good "..." " had been made, whereas the Commission in its opinion in the present case recognised that such a statement had in fact been made by the investigating team in its administrative inquiry report, and that the reasons for such a statement having been made could not be explained. It therefore appears that, in respect to this point, there was a failure to adequately examine the complainant's Article 90(2) complaint. This constituted an instance of maladministration. 3. According to Article 90(1) of the Staff Regulations, the Appointing Authority "shall" notify the person concerned of its reasoned decision within four months. As pointed out by the Ombudsman in his decisions on complaint 1479/99/(OV)MM and 729/2000/OV, this implies that the Appointing Authority has an obligation to communicate a decision to the person concerned within that four-month deadline. The

302

rule that a lack of reply shall "be deemed to constitute an implied decision" is meant to establish a possibility of a legal remedy for the person concerned when the Appointing Authority does not respect this obligation. It does not give the Appointing Authority a right not to communicate a decision within the four-month deadline. In the present case, the Commission failed to communicate an explicit, reasoned decision to the complainant within the four-month deadline, and has not provided any explanation for this failure. The Ombudsman therefore takes the view that its failure to communicate an explicit, reasoned decision to the complainant within the four-month deadline constituted an instance of maladministration. 4. With regard to the Commission's decision on the complainant's Article 90(2) complaint, the Commission rendered its decision on 4 March 2004, that is, a little over one month after the expiration of the four-month deadline laid down in Article 90(2). In order to explain this delay, the Commission has made a broad reference to the "complexity of the complaint", and the fact that it was only on 12 January 2004 that it had received all the interested parties' comments on the verification report made on the basis of the verification procedure carried out in relation to the complainant's Article 90(1) request. However, the Ombudsman notes that the terms of the complainant's Article 90(2) complaint were the same as those of his Article 90(1) request, which had been implicitly rejected, and that, in respect of the latter, the Appointing Authority had ordered an administrative verification procedure to be carried out, the results of which had been made available on 5 August 2003. In the Ombudsman's view, the fact that the parties concerned by that administrative verification procedure were asked to submit their comments on the verification report cannot satisfactorily explain the Commission's failure to decide, within the four-month deadline, on a matter that had already been dealt with in the course of the examination of the complainant's Article 90(1) request. Therefore, and without excluding that special circumstances may justify non-observance of the four-month deadline in Articles 90 (1) and (2) of the Staff Regulations, the Ombudsman considers that the Commission has not given adequate explanations for the delay in adopting a decision on the complainant's Article 90(2) complaint. The Ombudsman therefore takes the view that the Commission's failure to observe the four-month deadline in Article 90(2) of the Staff Regulations was an instance of maladministration. Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case. Specifically with regard to the second critical remark, the Ombudsman notes that the Commission, in its opinion in the present case, has effectively denied that the disputed statement is in any way true. Finally, the Ombudsman cannot accept the complainant's claim for compensation and for payment of his legal expenses. With regard to the complainant's other grievances, the Ombudsman has concluded that there has been no maladministration, or that further inquiries are not justified. The Ombudsman draws attention, however, to his further remark below.

303

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

FURTHER REMARK As noted above, the complainant alleged that there had been an attempt to apply a sanction against him that was not provided for in the Staff Regulations. He referred to a proposal that an "admonition" should be issued against him. The complainant considered that the attempt to have an "admonition" issued against him was unlawful. While concluding that no further inquiry into, and consideration of, this part of the complaint was justified, since no such "admonition" was in fact issued against the complainant, the Ombudsman has found that the Commission failed to invoke valid legal grounds in support of its position that the issuance of the proposed admonition would have been a lawful measure. In light of this finding, the Ombudsman encourages the Commission to thoroughly examine the lawfulness of any such proposed "admonitions" in future similar cases. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------The references to officials do not contain the initials of their real name. The fictive initials are made in a chronological alphabetical order according to their mentioning in the decision. It appears from the Commission's opinion that an "administrative verification" is an inquiry conducted in order to examine whether a broader inquiry should be opened. This article provided as follows: "The appointing authority shall have the right to issue a written warning or a reprimand without consulting the Disciplinary Board, on a proposal from the official's immediate superior or on its own initiative. The official concerned shall be heard before such action is taken. Other measures shall be ordered by the appointing authority after the disciplinary procedure provided for in Annex IX has been completed. This procedure shall be initiated by the appointing authority after hearing the official concerned."
(4) (3) (2) (1)

SEC (2000) 2079/5

(5)

See, e.g., Case T-11/03 Elizabeth Afari v. European Central Bank, judgment of 16 March 2004 (not yet reported), paragraph 49.

304

See Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 28. Regarding the complainant's allegation that the issuance of such an admonestation would have been unlawful, cf. point 2 below.
(8) (7)

(6)

Cf. Case C-315/99 P Ismeri Europa v. Court of Auditors [2001] ECR I-5281, paragraphs 29-30. Cf. Article 2(2) of Annex IX of the Staff Regulations (2004).

(9)

"Article 87 hearing" refers to Article 87 of the former Staff Regulations. This article provided as follows: "The appointing authority shall have the right to issue a written warning or a reprimand without consulting the Disciplinary Board, on a proposal from the official's immediate superior or on its own initiative. The official concerned shall be heard before such action is taken. Other measures shall be ordered by the appointing authority after the disciplinary procedure provided for in Annex IX has been completed. This procedure shall be initiated by the appointing authority after hearing the official concerned."
(11)

(10)

Case T-307/01 Jean-Paul Franois v Commission, judgment of 10 June 2004 (not yet reported).

305

Decision of the European Ombudsman on complaint 628/2004/OV against the European Parliament

Strasbourg, 15 June 2005

Dear Mr C., On 1 March 2004, you made a complaint to the European Ombudsman against the European Parliament concerning access by auxiliary agents of the European Commission to Parliament's premises in Brussels. On 23 March 2004, I forwarded the complaint to the President of Parliament. Parliament sent its opinion on 19 July 2004. I forwarded it to you with an invitation to make observations, which you sent on 7 September 2004. On 24 January 2005, I wrote to the President of Parliament in order to propose a friendly solution to your complaint. Parliament sent its reply to the proposal on 21 April 2005. I forwarded it to you with an invitation to make observations, if you so wished. My office contacted you again by e-mail on 7 June 2005 in order to ask whether you wanted to submit observations, which you did by e-mail of 8 June 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are as follows: The complainant is an auxiliary agent in the European Commission. He complains that the Commission's auxiliary agents are not allowed access to the European Parliament's premises in Brussels when there are no meetings scheduled. According to the complainant, this is discriminatory, since no such restriction is imposed on temporary agents, seconded national experts or accredited lobbyists from private companies. The complainant observes that there is no difference in the work assigned to him compared to other categories of staff. The complainant did not find any legal text on which such a measure would be based. The complainant complained about this refusal of access to the European Parliaments premises in e-mail correspondence with the Security Division of Parliament in September and October 2003 and in February 2004, but Parliament never provided the complainant with a document explaining this measure, although the Head of the Security Division promised to send it.

306

On 1 March 2004, the complainant lodged the present complaint with the Ombudsman alleging that Parliament's refusal to allow auxiliary agents of the European Commission to have access to its premises in Brussels when there are no meetings scheduled constitutes unjustified discrimination.

THE INQUIRY The European Parliament's opinion Parliament observed that the complaint's description that auxiliary agents of the European Commission are not allowed access to its premises in Brussels when there are no meetings scheduled is perfectly accurate. The reasons for this are based on grounds of sound management: Any citizen who wishes to access Parliament's premises outside the visitors' area can do so if invited by a parliamentary body, a Member or a civil servant. In the framework of inter-institutional co-operation, Parliament grants access to officials of other EU institutions upon presentation of their badge. This facility is not, however, extended to all the other agents of the Institutions, since the number of potential visitors to the EP would thereby be substantially increased. Parliament does of course grant access to its premises when there is a functional reason, for example when auxiliary agents of the Commission need to attend a meeting of a parliamentary committee. The complainant does not, however, indicate any professional reason justifying his request. The limitation of the right of access is also necessary because Parliament is subject to national legislation and regulations. These regulations establish a maximum number of persons admitted to the premises on safety grounds, especially as regards fire risks. A note summarising the situation was considered by the Quaestors in November 2001. According to this note, Parliament should carefully monitor the number of persons present at a given time. The available statistical evidence shows that at certain peak times the maximum number is almost reached. This situation becomes even more difficult following enlargement. For the sake of the users of the premises, including visitors, Parliament is thus obliged to introduce certain access restrictions. These restrictions are maintained in Brussels throughout the year, even during periods with lower activity, because at these times the deployment of guards on duty in Brussels is reduced for budgetary reasons and to ensure sound financial management. Parliament sent a copy of the above-mentioned note (PE 308.245/QUAEST from the Deputy Secretary General, Mr Harald RMER, to the College of Quaestors) with its opinion.

307

The complainant's observations The complainant wondered why auxiliary agents, unlike other members of staff, have to justify their request to enter the building by giving a professional reason. The complainant is not contesting that the right of access must be limited. However, this should not be done arbitrarily. The complainant did not find any provision in the note attached to Parliament's opinion where the limitation with regard to auxiliary agents is foreseen.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the opinion and observations, the Ombudsman considered that there could be an instance of maladministration by Parliament. In accordance with Article 3(5) of the Statute(1), he therefore wrote to the President of Parliament on 24 January 2005 to propose a friendly solution on the basis of the following analysis of the issue in dispute between the complainant and Parliament: 1.1 The complainant alleges that Parliament's refusal to allow auxiliary agents of the European Commission to have access to its premises in Brussels when there are no meetings scheduled constitutes unjustified discrimination. In support of his allegation, the complainant pointed out that no such restriction is imposed on temporary agents, seconded national experts or accredited lobbyists from private companies. The complainant did not find any legal text on which such a measure would be based. 1.2 Parliament stated that it grants access to officials of other EU institutions upon presentation of their badge. This facility is not, however, extended to all the other agents of the Institutions, since the number of potential visitors to Parliament would thereby be substantially increased. Parliament does of course grant access to its premises when there is a functional reason, for example when auxiliary agents of the Commission need to attend a meeting of a parliamentary committee. The complainant does not, however, indicate any professional reason justifying his request. Parliament further pointed out that the limitation of the right of access is also necessary because Parliament is subject to national legislation and regulations which establish a maximum number of persons admitted to the premises on safety grounds, especially as regards fire risks. It referred in this context to a note sent to the College of Quaestors and included a copy of the note with its opinion. 1.3 The Ombudsman has carefully examined the note to which Parliament refers in order to justify the restriction on auxiliary agents of the Commission with regard to access to Parliament's premises when there are no meetings scheduled. The Ombudsman observes that the note does not appear to contain any reference to auxiliary agents from other institutions or to restrictions on their access to Parliament's premises when there are no meetings scheduled. On the contrary, point 9 of the note states that "[a]s of 23 November 2001, on the basis of the rules in force, Parliament

308

had granted a right of permanent access to 17711 persons (Members, assistants, officials, group staff, outside service-providers, etc). These are persons who have been issued with a badge. To these must be added persons with a badge issued by another institution, who may enter Parliament's premises on the basis of the principle of reciprocity (Members, officials and other servants of the other institutions, [the Ombudsman points out that the auxiliary staff are other servants and that the note makes no distinction between temporary staff and auxiliary staff] journalists accredited to the Commission) (). Point 10 of the note states that "at present, there is no provision which would enable Parliament to deny access to the persons referred to in the previous paragraph". 1.4 The note concludes that the current rules on access to Parliament's premises, which grant a right of permanent access to a very wide range of individuals, make it impossible to monitor normal rates of occupation. Given this unsatisfactory situation and the fact that the enlargement of the Union will increase the number of permanent users of Parliament's buildings, the note urges the College of Quaestors to instruct the Secretariat to propose a revision of the rules governing access to Parliament's premises with a view to consideration of the issue by the Quaestors in February 2002. The Ombudsman notes, however, that Parliaments opinion does not refer to any revised rules governing access. 1.5 The Ombudsman recalls that, according to the established case law, the European Parliament, like other Community institutions, has extensive discretionary powers to organise its internal affairs. The Ombudsman considers that the regulation of access to the Parliaments premises falls within Parliaments power of internal organisation. 1.6 The Ombudsman also recalls that, again according to the established case law, the principle of equality of treatment is a general rule forming part of the law applicable to the employees of the Communities and that discrimination occurs when comparable situations are treated in an unequal way and the discrimination is not objectively justified. 1.7 The Ombudsman notes that Parliaments opinion does not contain any explanation of why the position of all categories of Community staff should not be considered comparable for the purposes of access to its premises. On the contrary, Parliament has merely referred, without any distinction of staff categories, to a general need, for safety reasons, to restrict the overall numbers of those having access. Considering also that the note referred to by Parliament in its opinion appears to acknowledge that there is no provision which enables Parliament to deny access to other servants of other institutions, the Ombudsman takes the view that Parliament has failed to provide an objective justification for its refusal to allow auxiliary agents from the Commission access to its premises when there are no meetings scheduled. This refusal therefore constitutes unjustified discrimination and is an instance of maladministration.

309

The proposal for a friendly solution The friendly solution proposed by the Ombudsman consisted in Parliament putting an end to the current situation in which the access of auxiliary agents of other institutions to European Parliament premises is restricted without an objective justification. Parliament's second opinion In its opinion, Parliament was pleased to inform the Ombudsman that the problem of access no longer exists. Following the entry into force of the new Staff Regulations a new regime for contractual agents is now applicable in the European Parliament with effect from 1 March 2005 for staff previously employed on auxiliary contracts and from 1 January 2005 for newly-recruited staff. As a result of these changes, Parliament's Security Service does not distinguish between different categories of staff for access purposes. Following deliberations of the Bureau, new rules governing access to the institutions were issued by the Secretary General on 28 January 2005. Parliament enclosed a copy of these rules with its opinion. Parliament drew the Ombudsman's attention particularly to Article 6, which provides for access to European Parliament premises by all categories of staff of other Institutions. The complainant's second observations In his e-mail of 8 June 2005, the complainant observed that the problem appeared to be solved now and that he felt satisfied. He also thanked the Ombudsman's office for its efforts and President Borrell for the clear and written new rules.

THE DECISION 1. The alleged discrimination against the Commission's auxiliary agents 1.1 The complainant alleges that Parliament's refusal to allow auxiliary agents of the European Commission to have access to its premises in Brussels when there are no meetings scheduled constitutes unjustified discrimination. In support of his allegation, the complainant pointed out that no such restriction is imposed on temporary agents, seconded national experts or accredited lobbyists from private companies. The complainant did not find any legal text on which such a measure would be based. 1.2 Parliament stated that it grants access to officials of other EU institutions upon presentation of their badge. This facility is not, however, extended to all the other agents of the Institutions, since the number of potential visitors to Parliament would thereby be substantially increased. Parliament does of course grant access to its premises when there is a functional reason, for example when auxiliary agents of the Commission need to attend a meeting of a parliamentary committee. The complainant

310

does not, however, indicate any professional reason justifying his request. Parliament further pointed out that the limitation of the right of access is also necessary because Parliament is subject to national legislation and regulations which establish a maximum number of persons admitted to the premises on safety grounds, especially as regards fire risks. It referred in this context to a note sent to the College of Quaestors and included a copy of the note with its opinion. 1.3 For the reasons explained above under the heading the Ombudsman's efforts to achieve a friendly solution, the Ombudsman wrote to Parliament on 24 January 2005, proposing a friendly solution which would consist of Parliament putting an end to the current situation in which the access of auxiliary agents of other institutions to European Parliament services is restricted without an objective justification. 1.4 In its opinion of 21 April 2005, Parliament informed the Ombudsman that, following the entry into force of the new Staff Regulations, the problem of access no longer exists. Parliament pointed out that a new regime for contractual agents is now applicable in the European Parliament with effect from 1 March 2005 for staff previously employed on auxiliary contracts and from 1 January 2005 for newlyrecruited staff. As a result, Parliament does not distinguish anymore between different categories of staff for access purposes. Article 6 of the new rules governing access to Parliament's premises adopted on 28 January 2005 provides for access to European Parliament premises for all categories of staff of other Institutions. 1.5 The European Ombudsman notes that Article 6 of the new "[r]ules governing passes and authorisations granting access to Parliament's premises", which were adopted by the Secretary General on 28 January 2005 provide that "officials and other servants of the other Union institutions who, for service reasons, need to enter Parliament's premises shall be granted access thereto, subject to the principle of reciprocity, during the time-slots set aside for meetings of Parliament's bodies. Access shall be granted solely on presentation of a pass issued by their own institution". 1.6 In his observations, the complainant stated that the problem appeared to be solved now and that he felt satisfied. He also thanked the Ombudsman's office for its efforts and President Borrell for the clear and written new rules. 1.7 It appears from the above that the friendly solution proposed by the European Ombudsman has been accepted by the European Parliament. 2. Conclusion Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been achieved. The Ombudsman therefore closes the case.

311

The President of Parliament will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

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

312

Decision of the European Ombudsman on complaint 732/2004/ELB against the European Commission

Strasbourg, 21 March 2005

Dear Mr I., On 9 March 2004, you made a complaint to the European Ombudsman against the European Commission concerning the management of European Regional Development Funds (ERDF), and in particular those granted in the framework of Community initiative Interreg III B for the Western Mediterranean. You are the director of a Centre, which was selected for a project called "Internum". On 7 April 2004, I forwarded the complaint to the President of the Commission. You sent me further information concerning your complaint on 19 April 2004. The Commission sent its opinion on 22 June 2004 and I forwarded it to you with an invitation to make observations, if you so wished by 31 August 2004. I also asked you to forward to me copies of documents to which you had referred in your complaint. No reply appears to have been received from you. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the facts can be summarised as follows: The complainant is the director of a Centre, which was selected for a project called "Internum", planned for autumn 2002, in the framework of the Interreg III B Community initiative for the Western Mediterranean (MEDOC)(1). The management of the relevant Community funds has been assigned to Italy. The complainant sent four documented expense claims to the Italian managing authority, but received no payment. The normal delay for payment mentioned in the contract is 60 days; however, in one case, the delay for payment already exceeds six months, which poses serious problems for the complainant. Neither the Italian managing authority, nor the Italian authorities, pay any attention to the complainant's requests. The complainant also contacted the Commission, but there was no result. The Commissioner in charge of the Regional Policy indicated that the problem seemed to have been solved, which was not the case. According to the complainant, the Commission does not maintain control over Community funds

313

allocated in the framework of ERDF and shows no interest in non-compliance with contracts. In summary, the complainant alleges that the Commission is failing to ensure the proper management of ERDF funds. The complainant claims that the Commission should intercede with the Italian authorities which manage Interreg III B funds in order to: request payment of the expenses incurred by the complainant for several months, oblige them to comply with the contract and to pay interest for late payments to the complainant, possibly sanction Italy for its management of Interreg III B funds.

On 19 April 2004, the complainant informed the Ombudsman that the expenses that he incurred had been paid on 15 April 2004. He also stated that he maintained the other points of his complaint. He indicated that he requested from the Italian managing authority a proof of the mistakes alleged to have been made in the bank data. According to the complainant, the Commission called the Italian managing authority but never wrote officially to it.

THE INQUIRY The Commission's opinion The Commission's opinion can be summarised as follows: The Commission recalls that, according to Article 9 (n) of Council Regulation No 1260/99(2), the managing authority is "a public or private authority or body at national, regional or local level designated by the Member State, or the Member State when it is itself carrying out this function, to manage assistance for the purposes of this Regulation." Article 9 (o) of the same Regulation defines the term "paying authority" as meaning "one or more national, regional or local authorities or bodies designated by the Member States for the purposes of drawing up and submitting payment applications and receiving payments from the Commission." The same provision continues: "(t)he Member State shall determine all the modalities of its relationship with the paying authority and of the latter's relationship with the Commission." Member States are responsible for designating the managing and the paying authorities of a Structural Funds programme. As regards Interreg programmes in

314

which several Member States are involved, participating Member States jointly designate these authorities. Relationships between partners and the modalities of functioning of each programme are defined by the agreements signed between participating Member States. As regards the complainants allegation of late payment, the payment orders for the "Internum" project were signed on 16 December 2003 and transferred for execution on 17 December 2003. On 21 January 2004, the bank sent them back to the paying authority because the bank data of the beneficiary were incomplete. On 27 January 2004, the paying authority sent new bank data. On 10 March 2004, the bank informed the paying authority of the same problem. On 12 March 2004, supplementary information was requested from the beneficiary. The paying authority received the information on 15 March 2004 and sent it to the bank on 18 March 2004. On 14 April 2004, the paying authority informed the Commission that the beneficiary had been paid. Contracts signed between the managing authorities and project leaders are drafted by each participating Member State. Deadlines for repayment vary according to the programme. Matters relating to compliance with the deadlines and the appeal procedures are provided for in the relevant provisions of the above-mentioned contracts. As regards European Community rules, Article 32, paragraph 1 (5) of Regulation 1230/99 states that "the paying authority shall ensure that final beneficiaries receive payment of their contribution from the Funds as quickly as possible and in full." Within its powers of control and follow-up, the Commission ensures that this principle is complied with. Further to the complainant's letters, the Commission requested information from the paying authorities, which was sent on 23 March 2004. From this reply, it can be concluded that the complainant is responsible for some of the delays. The Commission notes that some delays might be due to the verification by the paying authority of the accuracy of the documentation. As regards the way the complainant's case was treated by the Commission, numerous exchanges of letters took place between the Commission, the managing authority and the complainant. On 9 February 2004, the Commissioner in charge of the Regional Policy replied to a first letter from the President of the Centre, of which the complainant is the director. On 19 February 2004, Directorate General for Regional Policy (DG REGIO) wrote to the managing authority to request information on the financial arrangements of the programme and to request that this issue be put on the agenda of the next meeting of the monitoring committee. On 25 March 2004, DG REGIO sent a new letter to the Centre giving the latest information received. On the Commission's initiative, the issue of late payment of the beneficiaries of the programme was put on the agenda of the monitoring committee of 2 April 2004. It was decided to analyse the appropriateness of the financial arrangements chosen by

315

the paying authority and to take measures to reduce the deadlines. As regards the Internum project, the paying authority committed itself to reduce the time taken to complete the steps prior to the payment of funds. Initiatives taken by the Commission show the rigour and the speed with which the issue was dealt with, though the Commission is not directly involved in the financial management of Structural Funds. In accordance with the subsidiarity principle and the applicable regulation, Member States are directly responsible for the management of the programmes. The Commission is not in a position to impose sanctions or take measures against the paying authority. Moreover, this does not seem to be justified in view of the behaviour of the paying authority. The complainant's observations No observations were received from the complainant.

THE DECISION 1. Alleged failure to manage properly ERDF funds and related claims 1.1 The complainant, the director of a Centre, which was selected for a project called "Internum", alleges that the Commission is failing to ensure the proper management of ERDF funds. The complainant claims that the Commission should intercede with the Italian authorities which manage Interreg III B funds in order to request payment of the expenses incurred by the complainant for several months, oblige them to comply with the contract and to pay interest for late payment to the complainant, and possibly sanction Italy for its management of Interreg III B funds. The complainant subsequently informed the Ombudsman that the expenses had been paid. However, he maintained the other points of his complaint. 1.2 According to the Commission, Member States are responsible for the management of the Structural Funds programmes and for designating the managing and the paying authorities. Article 32, (1) (5) of Regulation 1260/99 states that "the paying authority shall ensure that final beneficiaries receive payment of their contribution from the Funds as quickly as possible and in full." Within its powers of control and follow-up, the Commission ensures that this principle is complied with. After being contacted by the complainant, the Commission requested information from the Italian authorities, which was sent on 23 March 2004. From this reply, it can be concluded, according to the Commission, that the complainant is responsible for some delays, as his bank data were incomplete, and some delays might also have been due to the need for the paying authority to verify the accuracy of the documentation.

316

On 14 April 2004, the paying authority informed the Commission that the beneficiary had been paid. Numerous exchanges of letters took place between the Commission, the managing authority and the complainant. On 9 February 2004, the Commissioner in charge of the Regional Policy replied to a first letter from the President of the Centre, of which the complainant is the director. On 19 February 2004, Directorate General for Regional Policy wrote to the managing authority to request information on the financial arrangements of the programme and to request that this issue be put on the agenda of the next meeting of the monitoring committee. On 25 March 2004, DG REGIO sent a new letter to the Centre giving the latest information received. Moreover, on the Commission's initiative, the issue of late payment of the beneficiaries was put on the agenda of a monitoring committee meeting which decided to analyse the appropriateness of the financial arrangements chosen by the paying authority and to take measures to reduce the deadlines. As regards Internum, the paying authority committed itself to reduce the time taken to complete the steps prior to the payment of funds. The Commission is not in a position to impose sanctions or take measures against the paying authority. Moreover, this does not seem to be justified in view of the behaviour of the paying authority. 1.3 The Ombudsman first notes that the present complaint deals with European Regional Development Funds, which are governed by, among other Community legislation, Regulation 1260/1999(3) and Regulation 438/2001(4). The Ombudsman notes the following points from these Regulations: (a) Article 32 of Regulation 1260/1999 requires the Commission to pay the contribution from the Funds to the paying authority within no more than two months of receipt of an acceptable payment application. The same provision requires the paying authority to ensure that final beneficiaries receive payment of their contribution from the Funds as quickly as possible and in full. (b) Regulation 438/2001 requires, among other things, Member States to ensure that managing and paying authorities receive adequate guidance on the provision of management and control systems (Article 2 (1) ) and to inform the Commission of the organisation of the managing and paying authorities, of the management and control systems in place in these authorities and bodies and of improvements planned pursuant to the guidance referred to in Article 2 (1) (Article 5). (c) According to Article 6 of the same Regulation: "The Commission shall, in cooperation with the Member State, satisfy itself that the management and control systems presented under Article 5 meet the standards required by Regulation (EC) No 1260/1999 and by

317

this Regulation, and shall make known any obstacles which they present to the transparency of checks on the operation of the Funds and to the Commission's discharge of its responsibilities under Article 274 of the Treaty. Reviews of the operation of the systems shall be undertaken on a regular basis." On the basis of these provisions, the Ombudsman considers that, although the paying authorities designated by the Member States are responsible for the prompt payment of ERDF funds to final beneficiaries, such as the Centre of which the complainant is a director, the Commission's responsibilities as regards the proper management of ERDF funds include, among other things, satisfying itself that the management and control systems communicated to it by Member States are appropriate and adequate to ensure that paying authorities comply with their obligation of prompt payment. 1.4 As regards the complainant's allegation that the Commission is failing to ensure the proper management of ERDF funds, the Ombudsman notes that the Commission requested information on the financial arrangements of the programme and that, on its initiative, the issue of late payment was discussed by the monitoring committee. He also notes that the Italian paying authority committed itself to reduce the time taken to complete the steps prior to the payment of funds. The Ombudsman takes the view that the Commission thereby appears to have taken appropriate and adequate steps to discharge its own responsibilities for the proper management of ERDF funds. He concludes therefore that there is no maladministration. 1.5 As regards the complainant's claim that the Commission should intercede with the Italian authorities in order to request payment of the expenses incurred by the complainant and oblige them to comply with the contract, the Ombudsman notes that the Commission contacted the Italian authorities about the complainant's case. The complainant subsequently informed the Ombudsman that the expenses that he incurred had been paid. The Ombudsman therefore takes the view that the Commission appears to have taken appropriate action to satisfy the claim. 1.6 As regards the complainant's claim for interest for late payment, the Ombudsman first points out that the responsibility for paying interest, if interest were due, would fall on the Italian paying authority. The Ombudsman notes in this context that the complainant has not contested the Commissions explanation in its opinion of the possible reasons for the delay by the responsible Italian paying authority in making the payment. The Ombudsman therefore concludes that the Commissions response to this claim reveals no maladministration by the Commission. Naturally, the complainant remains free to address his claim directly to the Italian paying authority. 1.7 As regards the complainant's claim that Italy should be sanctioned, the Ombudsman considers that the Commission's explanations as regards this aspect of the complaint appear reasonable and concludes that the complainant's claim cannot be sustained.

318

2. Conclusion On 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,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Interreg III is a Community initiative which aims to stimulate interregional cooperation in the EU between 2000-06 and is financed under the European Regional Development Fund. The Interreg III B programme for the Western Mediterranean concerns the development of cross-border co-operation between Italy, France, Spain, Portugal and Gibraltar. OJ L 161 of 26.6.1999.

(2)

Council Regulation No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds, OJ L 161, 26.6.1999.
(4)

(3)

Commission Regulation No 438/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation No 1260/1999 as regards the management and control systems for assistance granted under the Structural Funds, OJ L 63, 3.3.2001.

319

Decision of the European Ombudsman on complaint 758/2004/ELB against the European Commission

Strasbourg, 28 April 2005

Dear Mrs T., On 11 March 2004, you made a complaint to the European Ombudsman concerning a proposal submitted in the framework of call for proposals FP6-2003-IST-2. On 7 April 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 28 July 2004. I forwarded it to you with an invitation to make observations, which you sent on 18 October 2004. On 23 February 2005, I informed you that there was some delay in the handling of your complaint. I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT According to the complainant, the facts are in summary as follows: The complainant, the proposal co-ordinator, submitted a proposal in the framework of a call for proposals for indirect RTD actions under the specific programme for research, technological development and demonstration entitled "Integrating and strengthening the European Research area" (Information Society Technologies, call 2 of the IST(1) priority - FP6-2003-IST-2). The call for proposals was published on 17 June 2003. The closure date was 15 October 2003. The complainant's proposal consisted of developing a new intraocular lens which decreases the risk of secondary cataract and cures long-sightedness. This research project involved four organisations from three different Member States and one candidate country. The project was divided into four stages, each being managed by one of the four partners. It dealt with the medical follow-up of patients implanted with the "bag-in-the-lens" design, the development of the Optical Coherence Tomography experimental bench for the measurement of the surface curvature of the cornea and of the lens, the manufacturing of accommodative contact lenses of different aspherical coefficients, the refining of the optic part of the "bag-in-the-lens" design in a continuous aspherical lens allowing accommodation.
320

On 7 January 2004, the complainant received a letter dated 23 December 2003, informing her of the evaluation made by the experts and sending a copy of the Evaluation Summary Report. The proposal was assessed by independent experts, whose evaluation was that the proposal was not relevant to the Strategic Objective 2.3.2.2: "Optical, opto-electronic, photonic functional components". The complainant disagrees with this evaluation. She queries how a project focused on the design of lenses can fail to be relevant to a priority concerning optical components. She also argues that the benefits of the intraocular lens fit perfectly within the definition "minimally invasive photonic therapies" of the priority. The complainant therefore considers that the Strategic Objective as defined in the IST Work Programme of Call 2 must be ambiguous. The complainant also states that her offer was not submitted electronically and that consequently she was not informed in real time of the progress of the evaluation. She also argues that the letter of 7 January 2004 lacks clarity and that other letters arrived too late to enable her to consider making a new submission for the third call. On 22 January 2004, the complainant wrote to the Commission making comments on the Evaluation Summary Report, questioning the comments made in the Report. On 29 January 2004, the Commission replied to a collaborator of the complainant stating that the proposal had been evaluated by three to five experts and that the comments and scoring are based on independent reading and consensus discussions between these experts. The Commission also indicated that the proposal could not be re-evaluated on the basis of the complainant's comments and provided the complainant with the name of the official who had moderated the consensus meeting. The complainant called the above-mentioned official. On 17 February 2004, she contacted him by e-mail. A phone appointment seems to have been planned. The complainant alleges, in substance, that: (i) the independent experts made an error in considering that her proposal was not relevant to Strategic Objective 2.3.2.2 of the research programme "Integrating and strengthening the European Research area"; the procedure is unfair, since it is not possible to challenge the decision taken by the experts or to submit a second proposal; the information available to the complainant during the procedure was inadequate and unclear.

(ii)

(iii)

321

THE INQUIRY The Commission's opinion The Commission's opinion can be summarised as follows: Background The complaint concerns the AIOL(2) proposal which was submitted to the Strategic Objective 2.3.2.2 "Optical, opto-electronic, and photonic functional components" of Call 2 of the 6th Framework Programme. Call 2 was published on 17 June 2003 and closed on 15 October 2003. An acknowledgement of receipt was sent to the complainant on 20 October 2003. As a result of the evaluation, the proposal was awarded a score of 2 out of a total of 5 as regards relevance. This score was below the threshold and therefore the proposal was not ranked. The evaluation results were communicated to the applicant by letter dated 23 December 2003 enclosing the Evaluation Summary Report. On 22 January 2004, the complainant sent a letter to the Commission questioning the accuracy of the score and the conclusion of the evaluators. On 29 January 2004, the Commission replied that the proposal could not be re-evaluated but invited the applicant to contact the Commission by phone to obtain an explanation. Around 11 February 2004, the complainant called the Commission contact person for the AIOL proposal. He explained the background to the results, confirmed that the proposal had failed one of the thresholds and offered to organise a telephone conference with other members of the proposal consortium if the complainant would find it useful. On 17 February 2004, the complainant sent an e-mail to confirm her interest in the offer of a telephone conference, but there has been no further contact with the complainant since that date. The evaluation was carried out in full compliance with the "Guidelines on Proposal Evaluation and Selection Procedures" applicable to the 6th Framework Programme (hereinafter the Guidelines). These Guidelines are public and are available on the Commission's website. In accordance with those Guidelines, the evaluation of Call 2 proposals submitted to Strategic Objective 2.3.2.2 "Optical, opto-electronic and photonic functional components" was performed by three independent experts. As provided for by the Guidelines, those experts were briefed by the Commission services in charge of the call, in order to inform them of the general evaluation guidelines, the evaluation criteria to be applied, and the objectives of the research area under consideration. All 101 proposals submitted under the Strategic Objective 2.3.2.2, including the AIOL proposal, were then evaluated according to the same selection criteria. After

322

delivering their individual assessment, the three experts met under the moderation of a Commission official to reach a consensus on both comments and scores with respect to the proposal. The result of the evaluation of the AIOL proposal was confirmed by a panel meeting of experts and the Commission also decided to confirm this evaluation. 1. Alleged error in the evaluation of the proposal with respect to the relevance criterion In order to determine how relevant a proposal is, it must be evaluated in the context of the full text of Strategic Objective 2.3.2.2 contained in the IST Work Programme for 2003 and 2004. This objective states: "to develop advanced materials, micro- and nano-scale photonic structures and devices, solid-state sources and to realise optoelectronic integrated circuits (OEIC) (...)". In the opinion of the evaluators, confirmed by the Commission, the AIOL proposal did not address any aspect of the above-mentioned objective. The objective is further elaborated as a series of focal points. In the opinion of the evaluators, confirmed by the Commission, the proposal did not address any of the focal points. The criterion relevance should also be interpreted in the context of the overall objectives of the IST Work Programme for 2003 and 2004, which states: "the focus of IST in FP6 is on the future generation of technologies in which computers and networks will be integrated into the everyday environment, rendering accessible a multitude of services and applications through easy-to-use human interfaces. This vision of ambient intelligence places the user, the individual, at the centre of future developments for an inclusive knowledge-based society for all". Based on this, the unanimous opinion of the independent experts was that the development of intraocular lenses was clearly not relevant to Strategic Objective 2.3.2.2. The Commission has reviewed this opinion and has concluded that it was justified and confirmed the evaluation results prior to taking any further decision. 2. Alleged unfair procedure, since it is not possible to challenge the decision taken by the experts or to submit a second proposal Two different issues are raised in this point and the Commission addresses them separately: 2.1. It is not possible to challenge the decision taken by the experts 2.1.1. The advice provided by independent experts is one of the key elements in the evaluation process but not the definitive one. According to the Guidelines, "the Commission services review the results of the evaluation by the independent experts, make their assessment of the proposals based on the advice from these experts and prepare the final evaluation results".

323

As stated in the letter sent to the complainant, dated 23 December 2003, enclosing the Evaluation Summary Report with the results of the independent experts: "in drawing up the final ranked list the Commission will also take into account the programme priorities, (...) Community policy objectives and the available budget". Moreover, it is mentioned that this letter only provides the results of the evaluation of the proposal, does not constitute an invitation to negotiate or a rejection and does not prejudice any final decision to be taken by the Commission. In the letter of 29 January 2004, the Commission informed the applicants of its own decision that confirmed the results of the Evaluation Summary Report. The Commission regrets any misunderstanding that may have arisen concerning the role and responsibilities of the external evaluators and the possibility to review such cases. It is the Commission which takes the final decision in all cases and not the external evaluators. The Guidelines provide a clear legal basis for proposal evaluation by all Commission services in research activities. They should provide sufficient reassurance to potential applicants that the evaluation process is carried out correctly and in accordance with the rules. These Guidelines require transparent procedures for the selection of independent experts, briefing of independent experts prior to carrying out any evaluation, individual evaluation of each proposal by at least three experts, consensus agreement between those experts on the evaluation of each proposal, a panel evaluation resulting in an Evaluation Summary Report for each proposal and a suggested list of proposals ranked in order of priority for those proposals having passed the thresholds. Efforts are made to ensure that experts represent different countries, different experience, as well as different scientific and technical areas covered by the proposals in order to ensure the broadest and most effective evaluation possible. Furthermore, these experts are required to sign a contract with the Commission committing them to maintain the confidentiality of all information they deal with during the evaluation and to avoid any conflict of interest in carrying out the evaluation. Most evaluation sessions are also reviewed by independent observers who ensure that the evaluation is carried out in a fair and impartial manner and make observations to the Commission on the evaluation process. Moreover, it is with a Commission official as a moderator that the experts meet to reach a consensus on both comments and scores with respect to each proposal. In a case where the independent experts need to improve their understanding of a proposal for a particular instrument that has passed the required thresholds, hearings or interviews with representatives of the applicants may be organised as part of the panel deliberations. Nevertheless, those hearings are not intended to modify or improve the proposal itself.

324

Finally, the Commission, having attended the consensus and panel meetings as moderator, reviews the results of the evaluation, taking into account the results of the evaluation made by the independent experts. However, the Commission services are not obliged to follow the evaluation made by the independent experts or their ranking of proposals. The Commission services may immediately correct any manifest error (which would be most unusual but not impossible) and set out fully in writing the reasons for arriving at the final ranking. It is the Commission that determines the final ranking of proposals to be funded. Full feedback to applicants is then given by sending out the Evaluation Summary Report. This report reflects the consensus reached between the independent experts as well as the panel results, including sufficient comments and clear reasons for the scores. The Commission is always at the applicants' disposal to provide explanations complementary to the comments made in the Evaluation Summary Report. 2.1.2. In addition, there are other possible means of assistance for proposals at different steps of the evaluation process. Preparation During the preparation phase, most information is supplied to applicants through the CORDIS web site, national contact points and other national or international bodies. In addition, applicants have the possibility to contact the Commission directly for specific information or questions. The Commission may offer an informal advisory pre-proposal check service to applicants in some areas. The purpose is to advise potential applicants on whether proposals appear to be eligible and within the scope of the call. Submission Submission of a proposal can often lead to problems relating to eligibility due to delayed arrival or receipt. However, complaints relating to eligibility are dealt with by each call co-ordinator, who can call a meeting of an eligibility review committee to review doubtful cases. The decision to exclude a proposal for failing one or more of the eligibility criteria is taken by the Commission when ineligibility has been proven. According to the code of good administrative behaviour for staff of the European Commission in their relations with the public, the Commission shall provide a detailed justification concerning the decision of exclusion to an applicant who expressly requests it and under the conditions of Article 4 of the Code.

325

Evaluation and negotiation In order to remain fair and to ensure equal treatment of the applicants during the evaluation process, and as provided for by the Guidelines, there is no further contact between the Commission and applicants on the content of their proposal until after completion of the evaluation. The co-ordinator of each proposal receives the Evaluation Summary Report containing the comments and recommendations of the evaluation by the experts. According to the Commission's code of good administrative behaviour, the Commission shall provide a detailed justification concerning the results mentioned in the Evaluation Summary Report to an applicant who expressly requests it and under the conditions of Article 4 of this Code. A Commission decision is taken to reject all those proposals that are ineligible, that do not meet the evaluation marking thresholds or that are too low on a ranked list to be financed. Immediately after the rejection decision, co-ordinators of rejected proposals are informed in writing of the Commission's decision as well as of the reasons for rejection. The remaining applicants receive an invitation to start negotiations or are informed that they will be put on a reserve list in the event that additional funding becomes available. 2.1.3. If the applicant remains unsatisfied by the explanation given by the Commission, he or she is free to complain to the following offices: (a) the Secretariat General of the Commission for breach of the Code of good administrative behaviour, (b) the European Ombudsman for maladministration, (c) the Court of Justice for a decision affecting a person or legal entity, (d) the data protection officer for protection of personal data, (e) the Commission for public access to documents. 2.2. The complainant's allegation that it was not possible to submit a second proposal for the third call With regard to the possibility of resubmission, the applicant has received adequate information about the strengths and weaknesses of the proposal in the context of the second call to which she submitted. In relation to future calls and specifically the third call, the content of this call was not known to the Commission itself at the time, as the text had not yet been defined. The publication of the third call text took place on 15

326

June 2004 and the call was open for submissions until October 2004. Based on that call text, the applicant could judge the suitability of a resubmission. 3. The allegation that information available during the procedure was inadequate and unclear The complainant has apparently assumed that the reason why she did not have realtime access to the status of the evaluation was that the proposal was a paper submission rather than an electronic submission. This is not correct. The evaluation is a competition between different proposals. Therefore it would not be correct to release the evaluation results earlier to one applicant. The evaluation results are only communicated after the evaluation of all proposals in the call has been completed. This is true for all proposals, regardless of the manner of submission. The call text states that the evaluation results would only be available two months after the call deadline. The Guide for Proposers further stated that the Evaluation Summary Report "will be sent out before the end of December 2003". This is what happened and is the reason why the applicant did not have access to real time information during the proposal. For the above-mentioned reasons, the Commission considers the complaint to be unfounded. The complainant's observations The complainant's observations can be summarised as follows: The complainant considers that the Commission replies indirectly and incompletely to the issues raised in the complaint. As regards the relevance of the proposal for the Strategic Objective 2.3.2.2, the Commission makes a partial reading of paragraph 2.3.2.2 of the IST Work Programme. According to the complainant's understanding of this paragraph, the proposal is compliant with the objective. She argues that the Strategic Objective was not clearly defined and that this was prejudicial to her proposal. As regards the alleged unfairness of the procedure, the complainant notes that the Commission briefed the experts. She argues that experts should only receive documents that are publicly available, notably the work programme, and that oral explanations might bias the interpretation of the written text. She considers that information given by the Commission to the experts and to the applicants is not exactly the same. The complainant also regrets the absence of a simple procedure to appeal a decision, such as a second examination of a proposal. She suggests that the appeal possibilities should be clearly stated in the Work Programme.

327

According to her, the Commission recognises in its opinion that it did not reply to the complainant's e-mail and to her concerns as regards the relevance of the proposal during the phone conversation. The complainant received no opinion from the Commission as regards the resubmission of her proposal in the context of the third call despite her request. The complainant points out that the Commission's reply according to which the applicant must judge whether to submit a new proposal seems to contradict another paragraph of the reply, where the Commission states that it can give an informal opinion on proposals. As regards the information at the disposal of the complainant during the procedure, the complainant states that the letter sending the Evaluation Summary Report was not clear. She also considers that the Commission's reply to the European Ombudsman is not clear. In its opinion, the Commission does not reply to the complaint: although it demonstrates that it applied existing procedures correctly, it does not question existing procedures. She considers that, after the evaluation of the experts, the Commission had time to correct errors made by the experts and mentioned by the complainant in January 2004. The complainant would like to know whether the Commission could reexamine the proposal after the expert evaluation and, if that was possible, why this was not done.

THE DECISION 1. Preliminary remark 1.1 The Ombudsman points out that his inquiries into the present complaint have revealed that the complainants first allegation (error by independent experts in assessing a proposal) raises complex scientific and technical questions. The Ombudsman considers that in examining such allegations of substantive error, his review should normally be limited to assessing whether the impugned decision is manifestly unreasonable. The Ombudsman notes that this approach is in line with the standard of substantive review applied by the Community courts in such cases(3). 2. Alleged error made by experts in evaluating the proposal 2.1 The complainant submitted, as co-ordinator, a proposal in the framework of a call for proposals for indirect RTD actions under the specific programme for research, technological development and demonstration entitled "Integrating and strengthening the European Research area" (Information Society Technologies, call 2 of the IST priority - FP6-2003-IST-2). The complainant's proposal was assessed by independent experts, whose evaluation was that the proposal was not relevant to the Strategic Objective 2.3.2.2: "Optical, opto-electronic, photonic functional components". The complainant considers that the Strategic Objective was ambiguous and disagrees with the evaluation made by the experts. She queries how a project focused on the design of lenses can fail to be relevant to a priority concerning optical components. She also argues that the benefits of the intraocular lens fit perfectly within the definition

328

"minimally invasive photonic therapies" of the priority. The complainant therefore alleges that the independent experts made an error in considering that her proposal was not relevant to Strategic Objective 2.3.2.2 of the research programme "Integrating and strengthening the European Research area". 2.2 According to the Commission, in order to determine how relevant a proposal is, it must be evaluated in the context of the full text of Strategic Objective 2.3.2.2 contained in the IST Work Programme for 2003 and 2004. In the opinion of the evaluators, confirmed by the Commission, the complainant's proposal did not address any aspect of the above-mentioned objective. The objective is further elaborated as a series of focal points. In the opinion of the evaluators, confirmed by the Commission, the proposal did not address any of the focal points. The relevance should further be interpreted in the context of the overall objectives of the IST Work Programme for 2003 and 2004. The unanimous opinion of the independent experts was that the development of intraocular lenses was clearly not relevant to the Strategic Objective 2.3.2.2. The Commission reviewed the opinion of the independent experts, concluded that it was justified and confirmed the evaluation results prior to taking any further decision. 2.3 In her observations, the complainant argues that the objective was not clearly defined and this was prejudicial to her proposal. 2.4 The Ombudsman notes that the complainant's proposal consisted of developing a new intraocular lens which decreases the risk of secondary cataract and cures longsightedness. The Ombudsman also notes that Strategic Objective 2.3.2.2 is explained in the Information Society Technologies Work Programme for 2003-2004 as follows: "To develop advanced materials, micro- and nano-scale photonic structures and devices, solid-state sources and to realise optoelectronic integrated circuits (OEIC). In the last 20 years, optics and photonics have become increasingly pervasive in a wide range of industrial applications. It has now become the heart of a new industry, building on microelectronics with which it will be increasingly linked. Projects are expected to address research challenges for 2010 and beyond in one or more of the following application contexts: "telecommunication and infotainment", (components of "low-cost high-bandwidth" and "Terabyte storage"), "health care and life science" (minimally invasive photonic diagnostics and therapies, biophotonic devices), and "Environment and Security" (photonic sensors and imagers). Focus is on: advanced materials, microoptics and micro-nano-photonic structures: passive and active photonic materials and heterostructures, and their integration with microelectronic main stream processes. This includes compound semiconductors, organic and polymers and glass; advanced devices, hybrid or monolithic, and integrated photonic circuits implementing functional requirements of telecommunication (e.g.

329

electro-optic and all-optical processing), of medical (e.g. biophotonics and imaging) and of environment applications (e.g. sensors); advanced solid-state light sources to increase compactness, tunability and brightness. Work will also include ultra-short pulse, microcavities and source array technologies".

2.5 The Ombudsman considers that to answer the question of whether the complainant's proposal falls within the scope of Strategic Objective 2.3.2.2 as explained in the Information Society Technologies Work Programme for 2003-2004 requires the application of expert scientific and technical knowledge. He therefore considers that the scope of the substantive review that he can conduct is limited to assessing whether the Commission's decision to confirm the evaluation results appears manifestly unreasonable. After examining the available evidence, the Ombudsman does not consider that the Commission's decision to confirm that the complainant's project fell outside the scope of Strategic Objective 2.3.2.2 was manifestly unreasonable(4). The Ombudsman therefore concludes that there is no maladministration as regards this aspect of the complaint. 2.6 The Ombudsman considers that when an administrative procedure for selecting projects to promote the Community's objectives entails complex scientific and technical evaluations, respect for procedural guarantees is of fundamental importance, in order to ensure both effectiveness and fairness. The adequacy of the procedures followed by the Commission in this regard is dealt with in the following section. 2.7 As regards the complainant's argument that Strategic Objective 2.3.2.2 is ambiguous or not clearly defined, the Ombudsman notes that the Commission has stated that it may offer an informal advisory pre-proposal check service to applicants in some areas, the purpose of which is to advise potential applicants on whether proposals appear to be eligible and within the scope of the call. In her observations, the complainant states that she received no opinion as regards the relevance of her proposal to the third call. The Ombudsman points out that the complainant has the possibility to make a new complaint to the Ombudsman if she considers that the Commission denied her an opportunity given to other applicants to obtain informal advice before submitting the proposal. 3. Alleged unfair procedure 3.1 The complainant alleges that the procedure is unfair, since it is not possible to challenge the decision taken by the experts or to submit a second proposal. 3.2 According to the Commission, the evaluation of the second call for proposals submitted to Strategic Objective 2.3.2.2 was performed by three independent experts, in compliance with the "Guidelines on Proposal Evaluation and Selection Procedures" applicable to the 6th Framework Programme. The Commission, having attended the consensus and panel meetings as moderator, reviewed the results of the

330

evaluation, taking into account the results of the evaluation made by the independent experts. The advice provided by independent experts is one of the key elements in the evaluation process but not the definitive one. The Commission is not obliged to follow the evaluation made by the independent experts or the ranking, and may immediately correct a manifest error and set out fully in writing the reasons for arriving at this final ranking. The Commission states that it decided to reject all those proposals that were ineligible, did not meet the evaluation marking thresholds or were too low on a ranked list to be financed. After the rejection decision, co-ordinators of rejected proposals were informed in writing of the Commission's decision as well as the reasons for the rejections. According to the Commission, it is at the applicants' disposal to provide explanations complementary to the comments made in the Evaluation Summary Report. If an applicant remains unsatisfied by the explanations given by the Commission services, he or she is free to use one of the appeal procedures. 3.3 In her observations, the complainant points out that information given by the Commission to the experts and to the applicants is not exactly the same, because the former were given oral explanations. She considers that, after the evaluation of the experts, the Commission had time to correct errors made by the experts and mentioned by the complainant in January 2004. The complainant would like to know whether the Commission could re-examine the proposal after the expert evaluation and, if that was possible, why this was not done. 3.4 The Ombudsman notes that, according to the Guidelines on Proposal Evaluation and Selection Procedures, "each proposal is evaluated against the applicable criteria independently by several experts who fill in individual evaluation forms giving marks and providing comments. (...) The Commission services review the results of the evaluation by independent experts, make their assessment of the proposals based on the advice from these experts and prepare the final evaluation results." The Ombudsman considers that the role of the experts as defined in the Guidelines is clearly to provide scientific and technical advice to assist the Commission to make the most effective decisions to promote the Community's objectives. The independence of the experts appears to be conducive both to the effectiveness and the fairness of the process. In these circumstances, the Ombudsman does not consider that the absence of an appeal mechanism against the evaluation made by the experts could itself be structural or systemic maladministration. Nor does the Ombudsman consider that the fact that the experts received information from the Commission additional to that provided to applicants is in itself unfair, irrational or otherwise contrary to principles of good administration. 3.5 The Ombudsman notes that the Commission states that it is always at the applicants' disposal to provide explanations complementary to the comments made in the Evaluation Summary Report. The Ombudsman notes that the complainant wrote to the Commission on 22 January 2004 to question the Evaluation Summary Report and also contacted the Commission in February 2004 by telephone and e-mail. The

331

Ombudsman does not consider that the available evidence discloses any failure by the Commission to provide complementary explanations at the complainant's request. 3.6 As regards the lack of possibility to resubmit a proposal under the second call, the Ombudsman notes that according to the Guide for Proposers concerning IST call 2 (section III.4.), "once the deadline has passed, however, we can accept no further additions, corrections or re-submissions. The last version of your proposal received before the deadline is the one which will be evaluated, and any later material will be disregarded." The Ombudsman takes the view that it is clear from the above that resubmission to the same call of proposals that have already been evaluated is excluded by the fact that by definition any such re-submission would take place after expiry of the deadline. 3.7 As regards the question in the complainant's observations, the Ombudsman notes that the Commission has already stated in its opinion that it reviewed the opinion of the independent experts and concluded that it was justified and confirmed the evaluation results prior to taking any further decision. 3.8 In view of the above, the Ombudsman considers that there is no maladministration as regards this aspect of the complaint. 4. Alleged inadequate and unclear procedure 4.1 The complainant alleges that the information available to her during the procedure was inadequate and unclear. According to the complainant, she was not informed in real time of the progress of the evaluation because she did not submit her offer electronically. She argues that the Commission's letter of 7 January 2004 lacked clarity and that other letters arrived too late for her to consider making a new submission for the third call. 4.2 According to the Commission, the evaluation is a competition between different proposals and to ensure fair and equal treatment there is no further contact between the Commission and applicants on the content of their proposal until after completion of the evaluation. The evaluation results are only communicated after the evaluation of all proposals in the call has been completed. This is true for all proposals, regardless of the manner of submission. The call text states that the evaluation results would only be available two months after the call deadline. The Guide for Proposers further states that the Evaluation Summary Report "will be sent out before the end of December 2003". This is what happened and is the reason why the applicant did not have access to real time information during the proposal. As regards the possibility of submission for the third call, the Commission argues that the applicant had received adequate information about the strengths and weaknesses of the proposal in the context of the second call and that she could judge the suitability of a submission to the third call, on the basis of the text of that call, which was published on 15 June 2004.

332

4.3 The Ombudsman considers that the Commission's explanation that the complainant's proposal was not treated less favourably because it was not submitted electronically appears convincing. 4.4 As regards the timing and content of the information available to the complainant in view of possible resubmission of the proposal in the framework of the third call, the Ombudsman has carefully examined the evidence available in the file. It appears that the complainant received information about the rejection of her proposal in January and February 2004. The Ombudsman notes that the third call was published in June 2004 and closed in September 2004. In these circumstances, and taking into account also the finding in point 3.5 above, the Ombudsman does not consider that the complainant has shown that the Commission failed to provide her with timely information with a view to a new submission for the third call. 4.5 In view of the above, the Ombudsman concludes that there is no maladministration as regards this aspect of the case. 5. Conclusion On 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,

P. Nikiforos DIAMANDOUROS ------------------------(1)

IST stands for Information Society Technologies.

AIOL is the proposal acronym, the proposal title is: "Study of accommodation process - Design of an accommodative lens". See for example, Case T-70/99, Alpharma Inc. v Council, 2002 ECR II-03495, paragraph 180; Joined cases T-74/00, T-76/00, T-83/00, T-84/00, T-85/00, T-132/00, T-137/00 and T-141/00, Artegodan GmbH and Others v Commission, 2002 ECR II04945, paragraph 201. The Ombudsman considers it useful to refer in this context to the following definitions from the on-line Dictionary of Photonics (http://www.photonics.com/dictionary/):
(4) (3)

(2)

333

"Photonics is the technology of generating and harnessing light and other forms of radiant energy whose quantum unit is the photon. The science includes light emission, transmission, deflection, amplification and detection by optical components and instruments, lasers and other light sources, fibre optics, electro-optical instrumentation, related hardware and electronics, and sophisticated systems. The range of applications of photonics extends from energy generation to detection to communications and information processing." "Biophotonics is the technology that deals with the interaction of organic materials with light and other forms of radiant energy whose quantum unit is the photon. This includes the emission, detection, absorption, deflection, selection, modification and creation of radiation by and from all living organisms and organic materials." The Ombudsman considers that these definitions cannot be made operational without scientific and technical knowledge.

334

Decision of the European Ombudsman on complaint 839/2004/(AJ)MHZ against the European Personnel Selection Office

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 31 May 2005

Dear Mr X., On 18 March 2004, you made a complaint to the European Ombudsman against the European Personnel Selection Office (EPSO) concerning open competition EPSO/LA/11/03. On 26 April 2004, I forwarded the complaint to the Director of EPSO. On 1 July 2004, EPSO sent an opinion in English and on 3 September 2004 in Hungarian, which I forwarded to you with an invitation to make observations. On 27 September 2004, I received your observations. At the moment of your complaint, you were neither a citizen of the European Union nor a resident of a Member State of the Union and were therefore not entitled to complain to the Ombudsman. However, I considered that the issue raised by your complaint should be dealt with by me in an own-initiative inquiry. In its opinion, EPSO explained that it had no objection to my dealing with the case as a complaint following the accession of Hungary to the European Union. I am now writing to inform you of the results of the inquiries that have been made.

THE COMPLAINT In June 2003, the complainant, a citizen of Hungary, applied to take part in an open competition for assistant translators (EPSO/LA/11/03). One of the admissibility conditions was to have obtained a diploma. Since there were only a few months left before he would finish his studies and thus obtain his diploma, the complainant considered that he could meet this requirement during the course of the selection procedure and that he was therefore allowed to apply. In his application form he openly indicated this fact.

335

As his application was registered on 30 June 2003 and as he was invited to attend the pre-selection tests on 28 October 2003, he believed that EPSO had accepted his application. On 27 November 2003, the complainant successfully passed the pre-selection tests and was admitted to the written tests which took place on the same day. On 10 March 2004, the complainant was informed by EPSO that he had been excluded from the selection, since on the application date he did not have the required diploma. For that reason, his written tests were not evaluated. On 11 March 2004, the complainant sent an e-mail to EPSO requesting it to reconsider the decision concerning his exclusion and to mark his written tests. Given that he had meanwhile obtained his diploma, he considered that his exclusion was unfair. He expressed the view that after having passed the pre-selection tests and after investing much time and energy in the preparation, it would only be fair to mark his written tests and allow him to participate in the selection procedure. EPSO refused the complainant's request, stating that the complainant had not obtained the diploma by the application date, and that this fact alone was a sufficient reason to exclude him regardless of the acceptance of his application in June. On 18 March 2004, the complainant lodged a complaint with the Ombudsman. At the moment of his complaint, he was neither a citizen of the Union nor residing in a Member State of the Union and was therefore not entitled to complain to the Ombudsman. However, the Ombudsman considered that the issue raised by the complaint should be dealt with in an own-initiative inquiry. In his complaint, the complainant alleged that the procedure of EPSO was unfair in excluding him from the selection procedure after having accepted his application and after having invited and allowed him to participate in the pre-selection and written tests. The complainant claimed that EPSO should mark his written tests and, in the event of a pass, allow him to participate in the selection procedure.

THE INQUIRY The opinion of EPSO The Ombudsman forwarded the complaint to EPSO. The opinion can be summarised as follows. On 22 May 2003, the notice of open competition EPSO /LA/11/03 to form a reserve pool from which to recruit assistant translators that have as a main language that of

336

one of the accession countries (in the complainant's case - Hungarian) was published (OJ C 120 A). According to point C.1 of the notice of competition, candidates had to register online, via EPSO's website. After the preliminary check of the information given by the candidates in the registration form, the selection board invited to the preselection tests those candidates who met the general terms and conditions set out in point A.II.4 of the notice of competition (i.e. citizenship, full rights as a citizen, fulfilment of military obligations, the character requirements for the duties involved). In the case of the complainant, on 28 October 2003, he was invited by EPSO to the pre-selection tests, which took place on 27 November 2003. For organisational reasons, the written tests were also held on the same date, as announced in point B.4 of the notice of competition. The complainant received one of the highest marks in the pre-selection tests and was invited to print out and complete the application form from EPSO's website and send it to EPSO within the deadline which was established in point C.3 of the notice of competition. After examining the complainant's file, the selection board concluded that he did not meet all the eligibility criteria since he had not obtained his degree before the closing date for registration of applications, i.e. before 24 June 2003. Therefore, his final application was not accepted and his written tests were not corrected. The complainant was informed about this decision on 10 March 2004. EPSO pointed out that candidates were invited to submit their full application in order to possibly be admitted to take written tests (c) and (d) if they have obtained one of the 300 highest marks per language section out of those who obtained the pass mark in the pre-selection tests (a) and (b). Then their qualifications were examined. According to point C.3 of the notice of competition, only the written tests of the candidates who meet all of the eligibility conditions were to be corrected. EPSO takes the view that, given the wording of the notice of the competition, the candidate could not presume from the fact of being invited to participate in the preselection tests and written tests that the selection board had accepted his application despite the fact that he did not fulfil all the eligibility criteria. EPSO also refers to the judgement of the Court of First Instance (T-145/02 Armin Petrich v. Commission), according to which the notice of competition can determine that certain specific eligibility requirements are to be verified after the marking of the pre-selection tests even if the candidates are required to sit the pre-selection tests and the written tests on the same day. EPSO argues, therefore, that the selection board can invite a candidate to the written tests and after examining his or her full application, realise that the candidate does not fulfil all the eligibility criteria and thus decide not to correct the written tests. EPSO also put forward that it would not object to the Ombudsman dealing with the matter as a complaint rather than an own initiative inquiry given that the complainant is now an EU citizen.

337

The complainant's observations The complainant's observations can be summarised as follows: It would have been just and fair to exclude him from the competition at its very beginning, i.e. after he had submitted his registration form but not after he had sat the pre-selection and written tests. He takes the view that the criterion to have a diploma is rather a precondition to take up a post and not a precondition for accepting an application for such a post. He stated that he understood that EPSO accepted his explanation about the later date of his diploma when it admitted his registration form and therefore invited him for the pre-selection tests. He also considered that it would be fair for EPSO to mark his written tests following his request given that EPSO had approved his registration although he did not qualify to participate in the competition.

THE DECISION 1. Alleged unfair procedure and related claim 1.1 The complainant submitted his electronic registration form for open competition EPSO/LA/11/03 before the deadline given in the notice of competition, i.e. before 24 June 2003. He stated in that form that he would obtain his degree a few months after the registration date. The selection board examined the complainant's registration form as to the general terms and conditions of his eligibility and invited him to the preselection tests and written tests which took place on the same date in accordance with the notice of competition. The complainant sat all these tests. Afterwards, the selection board checked his pre-selection test and, given that he was awarded one of the 300 highest marks, invited him to submit his full application form, which the complainant did. Then, the selection board checked the complainant's full application as regards his qualifications (inter alia his diploma). Given that on the closing date for applications the complainant did not have his diploma (he obtained it on 28 January 2004), his written tests were not checked and he was disqualified from the competition. 1.2 In his complaint, the complainant alleges that the procedure of EPSO was unfair in that it excluded him from the selection procedure after having accepted his application and after having invited and allowed him to participate in the pre-selection tests and written tests. He claims that EPSO should mark his written tests and, in the event of a pass, allow him to participate in the selection procedure. 1.3 EPSO states, in summary, that according to the notice of competition, the selection board could decide whether the complainant had fulfilled the eligibility requirement (had obtained the required degree) only after it examined the complainant's full application and that such an application was requested from candidates only after they

338

had successfully passed the pre-selection tests. EPSO also points out that according to the notice of competition, the pre-selection tests took place on the same date as the written tests. EPSO also refers to the case law of the Court of First Instance according to which the notice of competition can determine that certain specific eligibility requirements are to be verified after the marking of the pre-selection tests even if the candidates are required to sit the pre-selection tests and the written tests on the same day. 1.4 The Ombudsman has carefully examined the notice of competition, which states: (i) point C.1, stage 1: electronic registration form and pre-selection tests: "The selection board will invite to the pre-selection tests those applicants who meet general terms and conditions (...) after EPSO has carried out a preliminary eligibility check on the basis of the information given in the registration form"(1); (ii) point C.3, stage 2: full application: "The selection board examines applicants' files and compiles a list of those who meet all the conditions in the competition notice and who are admitted to the written tests."(2) The Ombudsman therefore considers that the notice of competition distinguishes two moments at which EPSO or the selection board verifies the candidates' eligibility. First, when EPSO checks the candidates' registration form in relation to general eligibility conditions (citizenship, full citizen's rights, military service, character requirements). Second, when the selection board checks the candidates' full application in relation to their qualifications (professional and academic). 1.5 The Ombudsman also recalls the judgement of the Court of First Instance (cited by EPSO) in which the Court held that it was justified for the selection board to invite a candidate to participate in the written tests and after having examined his file and having concluded that he did not meet the eligibility conditions related to professional experience decide not to check his written tests(3). 1.6 The Ombudsman takes the view, therefore, that, in not verifying the complainant's academic qualifications (diploma) when checking his registration form and in inviting him to the pre-selection and written tests given that he complied with the general eligibility conditions, EPSO appears to have acted according to the notice of competition. 1.7. In these circumstances and in the light of the above judgement of the European court, the Ombudsman does not find any instance of maladministration by EPSO. The complainant's claim can therefore not be sustained. 1.8 The Ombudsman also recalls, however, that according to established case law(4), the appointing authority is bound by the wording of the notice of competition and that the basic function of a notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post, in order to enable them to judge, first, whether they should apply for it

339

The Ombudsman therefore suggests that, in order to avoid possible misunderstandings and to improve relations with candidates, EPSO could consider stating explicitly in future notices of competition that (a) an invitation to attend the pre-selection tests does not imply that the eligibility of the candidate has been fully checked and (b) the written test of candidates who are subsequently found to be ineligible will not be marked. A further remark to this effect will be made below. 2. Conclusion On the basis of the Ombudsman's inquiries into this case, there appears to be no maladministration by EPSO. The Ombudsman therefore closes the case. The Director of EPSO will be informed of this decision. 3. Further remark The Ombudsman suggests that, in order to avoid possible misunderstandings and to improve relations with candidates, EPSO could consider stating explicitly in future notices of competition that (a) an invitation to attend the pre-selection tests does not imply that the eligibility of the candidate has been fully checked and (b) written tests of the candidates who are subsequently found to be ineligible will not be marked. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------A.II.4. Eligibility. General terms and conditions: "You must be a citizen of one of the Member states of the European Union or one of the acceding countries (...); you must be entitled to your full rights as a citizen: you must have fulfilled any obligations imposed on you in your home country by the laws on military service; you must meet the character requirements for the duties involved." A.II. Eligibility (Profile sought): "You may apply for this competition if, on the closing date for applications (...), you meet the following requirements: 1. Certificates and diplomas. You must have successfully completed one of the following: a full course in translation/interpreting at university level and obtained a degree or a full university course and obtained a degree giving access to doctoral studies (...); 2. Professional experience (...); 3. Languages (...); 4. General terms and conditions (see footnote 1).
(2) (1)

340

See case T-145/02, Armin Petrich v. Commission, Judgement of the Court of First Instance of 25 March 2004 (not yet reported in the ECR), paragraph 71. The judgement is available in French through the Courts website http://www.curia.eu.int.
(4)

(3)

See case T-54/91, Antunes v. European Parliament (1992) ECR II-01739, paragraph 39.

341

Decision of the European Ombudsman on complaint 933/2004/JMA against the European Commission

Strasbourg, 28 June 2005

Dear Mr T., On 26 March 2004, you lodged a complaint with the European Ombudsman against the European Commission. Your complaint concerned the application of the "human rights clause" included in Article 1 of the Co-operation Agreement between the European Community and the Socialist Republic of Vietnam. On 19 April 2004, you sent me additional information. On 17 May 2004, I informed the President of the European Commission of your complaint and asked him to submit an opinion. On 12 August 2004, I received the Commission's opinion, which I forwarded to you for observations. On 20 October 2004, you submitted your observations on the Commission's opinion. I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your case.

THE COMPLAINT The facts of the case according to the complainant are, in summary, as follows: The complainant explained that, as set out in the Commission's 1995 Communication on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries, the 1996 Cooperation agreement between the European Community and the Socialist Republic of Vietnam [henceforth, the cooperation agreement], incorporated a new Article 1, known as the "human-rights clause". On the basis of this provision, cooperation between the parties was to be based on the respect for human rights and democratic principles, which should become an essential aspect of the agreement. The complainant stated that, in recent years, a number of serious violations of human rights have been reported in Vietnam. He noted that, as documented by the media and a number of organizations, it is undisputed that the Vietnamese authorities are not respecting human rights. The complainant referred to the Council's 2002 Report on Human Rights, to a number of resolutions passed by the European Parliament, and to public statements made by the Commission. He also quoted different international reports which corroborate the same conclusion, such as the 2003 Human Rights Watch World Report, the 2003 report on Human Rights prepared by the US
342

Department of State, Amnesty International's 2003 report on the situation in Vietnam, and the report Freedom in the World, published by Freedom House. The complainant argued that, on the basis of the human rights clause included in Article 1 of the co-operation agreement, if serious violations of human rights occurred in the country, the Commission should have proposed to the Council that the agreement be suspended. In the complainant's view, the fact that the cooperation agreement does not contain any provision on the suspension of its clauses is immaterial, since the Commission could have proceeded on the basis of existing international law rules, in particular the relevant provisions on the suspension of international treaties (Article 60) contained in the Vienna Convention on the Law of the Treaties. Although the Commission has stated that suspension of an agreement should only be triggered when all alternative means have failed, the complainant considered that, despite the institution's endeavours, no improvement in the situation of human rights in Vietnam has in fact taken place. The complainant argued that the human rights clause enshrined in Article 1 of the cooperation agreement cannot be construed merely as a generic principle, but rather constitutes a legal obligation binding also upon the Commission. The complainant mentioned a number of written questions addressed to the Commission by different MEPs in which they asked the institution to take the initiative and make a proposal to the Council for the suspension of the cooperation agreement. Regardless of the evidence showing that the Vietnamese authorities are not respecting human rights and that the situation is not improving, the Commission has refused to act so far. The complainant believed that, in view of the factual evidence, the Commission's failure to take appropriate action constitutes an instance of maladministration which the Ombudsman should investigate. In the light of the available information, the Ombudsman opened an inquiry against the Commission. The allegation on which the Ombudsman asked the Commission to submit an opinion was the following: The complainant alleges that, in the face of serious violations of human rights by the Republic of Vietnam, the Commission is failing to use its powers to suspend the cooperation agreement between that country and the European Community. The complainant therefore claims that the Commission should take the necessary steps to suspend the agreement.

THE INQUIRY The Commission's opinion In its opinion, the Commission explained that, since the entry into force of the cooperation agreement on 1 June 1996, its policy towards Vietnam has sought to

343

encourage and support progress on human rights and democratisation, and to raise concerns where abuses occur, or where deterioration of the situation has become evident. To this end, the Commission has worked closely with the EU Member States in monitoring human rights developments in the country. Article 1 of the cooperation agreement constitutes the enabling framework for the Commission to address human rights issues directly with the Government of Vietnam, and to do so through a variety of channels such as the Joint Commission and, since 2003, through the new EC-Vietnam Sub-Group on Co-operation in the areas of institution building and administrative reform, governance and human rights. Complementary to the dialogue on human rights under the cooperation agreement, a human rights dialogue mechanism between the EU Mission in Hanoi and the Government of Vietnam was initiated in 2001. The "EU-Vietnam Dialogue on Human Rights" constitutes a platform to engage Vietnam on sensitive issues. It allows the channelling of EU concerns directly to the Vietnamese authorities in an open and constructive atmosphere. This mechanism was further reinforced in 2003, taking account of the experience gained from other countries. Meetings are held twice a year. The Commission indicated that both itself and the EU Member States have consistently raised their concerns about the situation of human rights in Vietnam, in particular as regards the restrictions on religious freedom and freedom of expression. The EU has also called for the release of prisoners and detainees held for the peaceful expression of their personal opinion in contravention of international legal instruments to which Vietnam is a party. The EU has also voiced its concern on the vagueness and discretionary application of some Vietnamese laws, and called for their revision. The Vietnamese authorities have been asked to increase transparency in relation to human rights related issues. In this respect, the EU has called for unrestricted access to the country by independent UN monitoring missions, notably the UN Special Rapporteur on Religious Freedom or the UN High Commissioner for Refugees (UNHCR), and by independent NGOs. It has requested the government to allow EU diplomats to visit prisoners of concern, and to monitor the trials of dissidents. In the Commission's view, a combination of dialogue and cooperation should contribute to an improvement of the human rights situation in Vietnam. This should develop greater tolerance towards dissent and acceptance of different views. The Commission referred to a number of recent statements in that regard, which were annexed to its opinion. The Commission underlined that its overall human rights policy is to enhance the respect for human rights and the rule of law. In its view, the suspension of the cooperation agreements is an instrument of last resort, which would deprive the EU of the possibility of using EU-funded co-operation programmes to support the reform process in Vietnam, including in the fields of governance, rule of law and human rights. In this respect, the Commission and the EU Member States have declared that they will welcome any possibility to support the Vietnamese government in measures

344

to strengthen governance and public administrative reforms, to improve human rights, to prepare for the signing and implementation of additional international conventions on human rights and in other areas where assistance could be helpful. The Commission concluded by expressing its sympathy for the complainant's concerns. However, taking account of the overall situation in Vietnam since the signature of the cooperation agreement in 1995 and of the Vietnamese Governments continued commitment to further progress, the Commission did not consider that it would be appropriate to reach the conclusion that there has been a material breach of the agreement and that the EU co-operation should be halted. The institution underlined that should this situation occur, a decision on the appropriate action to take should be taken in full consultation with both the EU Member States and the European Parliament. The Commission concluded by stating that this type of decision falls within the political responsibility of the Commission and is therefore not subject to administrative review. The complainant's observations In his observations on the Commission's opinion, the complainant repeated the allegations made in his complaint. He pointed out that the human rights clause enshrined in Article 1 of the co-operation agreement is not simply, as the Commission seemed to convey, a framework for a dialogue on human rights with the Vietnamese authorities. On the contrary, in his view, the clause should be the basis upon which any such dialogue should move forward. The complainant disputed the Commission's rosy picture of the situation, and pointed out that despite the institution's announced dialogue, ten years after the signature of the cooperation agreement, the situation continues to deteriorate, as illustrated by the massacre of a large number of Vietnamese people during Easter in 2004, or the government's refusal to allow any independent organisation wishing to verify the situation to enter the country. The complainant noted his disagreement with the Commission's view that the situation was not ripe for exceptional measures such as the suspension of the co-operation agreement while other more flexible options were still available. In his view, the situation of human rights in Vietnam has not improved despite the dialogue with the responsible national authorities put in place by the Commission, and therefore the institution's failure to act could only contribute to prolonging the existing situation. The complainant also rejected the Commission's assumption that the human rights clause was merely a political statement the application of which had to be left to the discretion of the Commission. He argued that, on the contrary, this clause constitutes a legal provision, and must therefore be subject to a legal control by monitoring bodies such as the Ombudsman.

345

THE DECISION 1. The Commission's alleged failure to suspend the cooperation agreement 1.1 Article 1 of the 1996 Cooperation agreement between the European Community and the Socialist Republic of Vietnam [henceforth, the cooperation agreement], provides for cooperation between the parties to be based on the respect for human rights and democratic principles, which should become an essential aspect of the agreement. This provision is known as the "human-rights clause". The complainant alleges that , in the face of serious violations of human rights by the authorities of Vietnam, the Commission failed to use its powers in order to suspend the co-operation agreement. He considers that the institution could have done so in accordance with existing international law. In support of his allegation, the complainant notes that a number of surveys prepared by the EU, international organisations and private groups have reported serious human rights violations in the country. 1.2 The Commission argues against the suspension of the cooperation agreement taking account of the overall situation in Vietnam, and of the Vietnamese Governments commitment to further progress on human rights issues. The institution takes the view that the improvement of the situation can be achieved through a combination of dialogue and cooperation. The Commission does not consider that there has been a material breach of the cooperation agreement, which should lead to its suspension. In its view, this response should only be used as a last resort, since it would deprive the EU of the possibility of using EU-funded co-operation programmes to support the reform process in Vietnam. In the Commission's view, if a situation occurred in which there was a material breach of the cooperation agreement, a decision on the appropriate response should be made in full consultation with EU Member States and the European Parliament. The Commission argues that this type of decision falls within the political responsibility of the Commission and therefore, is not subject to administrative review. 1.3 The Ombudsman considers it useful to first examine the nature and the scope of the so-called human rights clause enshrined in Article 1 of the cooperation agreement between the European Community and the Socialist Republic of Vietnam(1). This provision reads as follows: "Respect for human rights and democratic principles is the basis for the cooperation between the Parties and for the provision of this Agreement, and it constitutes an essential element of the Agreement". It is worth noting, from the outset, that this type of clause appears to have been inspired by the 1995 Commission Communication on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries(2). The Council endorsed the practice in its conclusions of 29 May

346

1995, which has been subsequently upheld by the Community courts(3). Whereupon, the European Union has made human rights an essential component in trade and cooperation agreements with third countries, and a specific clause, along the lines of the above Article 1, has been inserted in the text of new agreements. On the basis of that clause, respect for fundamental human rights and democratic principles constitutes an essential element of the agreement, underpinning the internal and external policies of the parties. As a result of this pre-eminent position, a breach of that clause may lead to the agreement's suspension. 1.4 As regards the question of whether the Commissions activity in relation to the human rights clause could give rise to an instance of maladministration, the Ombudsman notes that the Community courts have held that an agreement concluded by the Council with a non-member country pursuant to the provisions of the EC Treaty is an act of a Community institution and, therefore, the provisions of such an agreement form an integral part of Community law(4). The Ombudsman therefore considers that the human rights clause, as part of a cooperation agreement concluded with a non-member country, is binding on the Commission and that acts or omissions of the Commission in relation thereto could, therefore, constitute instances of maladministration. The Ombudsman points out in this context that an investigation into possible maladministration does not limit the Commissions political responsibility to the European Parliament for the application of the human rights clause. 1.5 The Ombudsman will now examine the human rights clause with a view to considering the obligations of the Commission as regards the circumstances in which that provision should be invoked in order to suspend the cooperation agreement. The Ombudsman notes that the text of the cooperation agreement is silent on this point. No reference to the implementation of the human rights clause of Article 1, or indeed to the mechanisms for the suspension of the cooperation agreement, figures among its provisions or recitals. The EC Treaty does not appear to furnish any further guidance on this matter. The relevant EC provisions involving the conclusions and/or the suspension of international agreements signed between the Community and a third State, namely Article 300 1-2 EC, provide that the Commission must first submit recommendations to the Council for the opening of negotiations, if the Treaty provides a sufficient legal basis for the proposed action. The Council must then authorise the Commission to carry out such negotiations, which must be pursued on the basis of its instructions. The conclusion of the agreement belongs to the Council, acting by a qualified majority, on a proposal from the Commission. The same procedure applies for the suspension of the agreement. The European Parliament should in all cases be fully informed of the decision taken(5). It therefore appears that the above provisions merely define the actors and the institutional procedure to be followed, without setting out in detail any further criteria for the Commission's action.

347

The Ombudsman has carefully considered the complainant's suggestion that, in the absence of any indication in the text of the cooperation agreement, the Commission should have resorted to international law and made use of Article 60 of the Vienna Convention on the Law of the Treaties(6). The Ombudsman is mindful of the fact, however, that this provision does not impose any obligations on the aggrieved party, but merely entitles that party to terminate or suspend the agreement in the event of a material breach, which is defined as a violation of a provision essential to the accomplishment of the object or purpose of the treaty(7). 1.6 The absence of any binding rules to define the Commission's scope of powers under Article 1 of the cooperation agreement leads the Ombudsman to conclude that the Community legislator seemingly intended to confer a large degree of discretion on the Commission for the interpretation and application of the human rights clause. As the Ombudsman has already stated, however, the institution or body exercising a discretionary power must remain within the limits of its legal authority. Very broad discretionary powers may exist, but they are always subject to legal limits. The Ombudsman notes in this context that the Commission itself has set out some principles for the operation of the human rights clause in its 1995 communication. The Ombudsman considers that it is appropriate to examine whether the Commission has applied these general principles reasonably in the framework of the cooperation agreement with the Socialist Republic of Vietnam. Thus, the 1995 communication supports the inclusion of specific clauses in the text of cooperation agreements which, in the event of an instance of violation of human rights, require the parties to hold mutual consultations aimed at examining the situation. Only in cases of "special urgency", should the Union decide immediately to suspend the agreement, or part of it. The communication, however, does not define the nature of such extreme situations. It underlines, however, that the Commission's reply to any breach has to be proportional to the situation in question(8), and accordingly lists, in Annex 2 of the Communication, a number of measures setting out different types of responses. 1.7 The Ombudsman has carefully examined the Commission's response in this case in the light of the above criteria. From the available information, it appears that the Commission has acknowledged in unequivocal terms that human rights violations have taken place in Vietnam, in particular as regards the restrictions on religious freedom and freedom of expression which have led to many detentions for the peaceful expression of personal opinions, the lack of transparency on human rights issues, and the vagueness and discretionary application of some Vietnamese laws. The Ombudsman notes that, having assessed the situation, the Commission has concluded that the suspension of the agreement would deprive the EU of the possibility of using EU-funded co-operation programmes to support the reform process in the country, and has therefore chosen to pursue the dialogue with the Vietnamese authorities by means of different bodies set out under

348

the cooperation agreement (the new EC-Vietnam Sub-Group on "Co-operation in the areas of institution building and administrative reform, governance and human rights") or through direct contacts involving the EU Delegation in Hanoi ("EU-Vietnam Dialogue on Human Rights"). 1.8 Having regard to the above considerations, the Ombudsman finds that the Commission's reasoning for its decision not to trigger the suspension of the cooperation agreement, but instead to make use of measures that it considers to be more proportionate, in accordance with the criteria set out in its 1995 Communication, appears to be reasonable. The Ombudsman also notes that the Commission has clearly and publicly stated its position, as illustrated by its replies to the several written questions on this matter submitted by different Members of the European Parliament. The Ombudsman therefore concludes that his inquiry has not revealed an instance of maladministration on the part of the Commissio n. As noted in point 1.4 above, this finding does not limit the Commission's political responsibility to the European Parliament for the application of the human rights clause. 2. The complainant's claim 2.1 The complainant claims that the Commission should take the necessary steps to suspend the agreement. 2.2 In view of the above findings, the Ombudsman does not consider that the complainant's claim can be sustained. 3. Conclusion On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

OJ L 136, 07.6.1996, p. 29.

349

(2)

COM (95) 216 of 23 May 1995. See case C-268/94 Portuguese Republic v Council [1996] ECR I-06177.

(3)

Case 12/86 Demirel v Stadt Schwbisch Gmnd [1987] ECR 3719, par.7; case C162/96 A. Racke GmbH & Co Hauptzollamt Mainz (reference for a preliminary ruling) [1998] ECR I-3655, par.41.
(5)

(4)

Article 300 (2) EC: "[T]he signing [...] and the conclusion of the agreements shall be decided on by the Council, acting on a qualified majority on a proposal from the Commission [...]. [T]he same procedure shall apply for a decision to suspend the application of an agreement. The European Parliament shall be immediately and fully informed on any [such] decision."

(6)

United Nations, Treaty Series, vol. 1155, p.331 (1155 U.N.T.S. 331, 8 I.L.M. 679).

"Termination or suspension of the operation of a treaty as a consequence of its breach: 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. [...] 3. A material breach of a treaty, for the purposes of this article, consists in: [...] b. The violation of a provision essential to the accomplishment of the object or purpose of the treaty". "In the Commission's opinion the application of this mechanism comes within the ambit of respect for the principle of proportionality between the breach cited and the degree of reaction. Use of the concept "special urgency" opens an option without creating an obligation and it is in this context that it is for the parties to gauge what measures they should take" ; supra COM (95) 216, p. 7.
(8)

(7)

350

Decision of the European Ombudsman on complaint 948/2004/OV against the European Commission

Strasbourg, 4 May 2005

Dear Mr V., On 24 March 2004, you made a complaint to the European Ombudsman on behalf of the European Citizen Action Service (ECAS) concerning the alleged failure of the Commission to inform and consult NGOs on the future of the Structural Funds. On 5 and 20 April 2004, you sent further information concerning your complaint. On 27 April 2004, I forwarded the complaint to the President of the Commission. On 3 May 2004, you had a telephone conversation with my office concerning the first allegation of your complaint. The Commission sent its opinion on 29 July 2004. I forwarded it to you with an invitation to make observations, which you sent on 4 November 2004. On 8 November 2004, your assistant sent a copy of ECAS' report "The Illusion of Inclusion". On 26 November 2004, I received an e-mail with comments on the Commission's opinion from the Regional Policy Officer of RSPB (BirdLife International). The email was registered under the reference number of your complaint. In telephone conversations of 1 and 22 March 2005, my office informed you and your assistant that your case was still under investigation and that you would soon be informed of the Ombudsman's decision in your case. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are as follows: On 9 January 2004, the complainant wrote to the Secretary General of the Commission with two requests, namely 1) on the basis of Regulation 1049/2001/EC(1), to receive a copy of the Third Commission report on Cohesion policies, before its adoption, and 2) on the basis of the Commission Communication COM(2002)704 final of 11 December 2002 concerning the minimum standards for consultation(2), to receive a copy of the consultation plan on the future of the Structural Funds. The complainant's letter was acknowledged, but no reply was received within the deadline foreseen by Regulation 1049/2001/EC. The complainant therefore made a confirmatory application on 8 March 2004.
351

As no reply was received, the complainant complained to the Ombudsman on 24 March 2004. He stated that the complaint concerns the way in which the Regulation on access to documents and the minimum standards on consultation of NGOs are applied. In this context, the complainant referred to the Commission Communication COM(2002)704 final of 11 December 2002 concerning the standards for minimum consultation. The complainant underlined the particular importance of informing and hearing NGOs as widely as possible on the future of the Structural Funds, and stressed that there are issues on which NGOs in all EU Member States should be consulted. So far there has been a serious imbalance in the European cohesion debate between the involvement of regional authorities on the one hand and NGOs and local community development interests on the other hand. In his complaint to the Ombudsman, the complainant provides further details by setting out three "requests" to the European Ombudsman: Firstly, on the minimum standards for consultation of NGOs, the complainant's objective is that the European Ombudsman's role as an external body to which an appeal can be made should be recognised. Citizens should be informed of this role as in the case of access to documents. In its Communication COM(2002)704 final on the standards for minimum consultation, the Commission rejects the views of those, like the complainant, who wanted a legally-binding approach including the possibility of appeal to the Court of First Instance. Secondly, the Ombudsman should ascertain whether the minimum standards are sufficiently clear, and whether the Commission's traditionally sectoral approach to consultation should be supplemented by a more cross-sectoral and holistic one, particularly when its proposals have an impact on a wide range of interests. In his letter to the Commission asking for access to the documents, the complainant raised the question of whether the white paper on European governance, by foreseeing separate procedures for consulting regional authorities and civil society, had not overlooked cases such as the future of the structural funds which concerned both groups. The Commission document lays down general principles such as "participation" and "coherence", which certainly imply a far more inclusive approach. Thirdly, the Ombudsman should support the complainant's request that the Commission put forward a consultation plan covering points A to E of the minimum standards and redress the current imbalance by consulting NGOs before the legislative proposals on the structural funds are put forward. On the basis of the above, the complainant's allegations can be summarised as follows: 1) The Commission has failed to respect the deadlines set out in Regulation 1049/2001/EC.

352

2) The Commission had failed to consult NGOs on the future of the Structural Funds. The complainant indicated in his complaint that other organisations may wish to be associated with this complaint or that the Ombudsman may hear from them directly. On 5 April 2004, the complainant sent an e-mail to ECAS members and to colleagues of other European associations to inform them that a complaint had been made to the Ombudsman about "failure of the Commission to release documents and consult NGO's on the future of the Structural Funds". In this e-mail, the complainant also pointed out that the complaint, previous letters to the Commission and a report were available on ECAS' website http://www.ecas.org. On 20 April 2004, the complainant sent to the Ombudsman a copy of two letters, namely a letter of 31 March 2004 from the Secretary General of the Commission to the complainant, and a reply of 20 April 2004 from the complainant to the Secretary General. In his letter of 31 March 2004, the Secretary General of the Commission regretted that, because of a technical problem, the complainant's letter of 9 January 2004 had never reached the responsible department, and apologised for the fact that he had not received a reply to that letter. The Secretary General further informed the complainant that the requested report had been published in the meantime and was accessible on the website of DG Regional Policy, and that therefore the confirmatory application has become devoid of purpose. As regards the complainant's second request, the Secretary General argued that the Commission has enabled all interested parties to make their views known well in advance of the adoption of the third Cohesion report and has acted in accordance with the minimum standards as laid down in its communication of 11 December 2002 COM(2002)704 final. In his reply of 20 April 2004 to the Secretary General, the complainant observed that, in the light of the explanation and apology for the way the original request for access to documents was handled, ECAS would be prepared to accept this issue as settled, subject to any observations of the Ombudsman. As regards the second request, the complainant observed that it had not been met by the Commission. The complainant was particularly concerned that a more balanced cross-sectoral application of the minimum standards on consultation should be applied by the Commission.

THE INQUIRY The Commission's opinion As regards the first allegation, the Commission observed that the complainant's request of 9 January 2004 for access to the draft third Cohesion report was registered by the Secretariat General on 16 January 2004 and forwarded by virtual fax to DG REGIO. Because of a technical problem, the complainant's request was not properly assigned and dealt with. The Secretary General of the Commission apologised to the

353

complainant on this point in his letter of 31 March 2004 in which he replied to the complainant's confirmatory application of 8 March 2004. On 20 April 2004, the complainant replied to this letter acknowledging that his confirmatory application had become devoid of purpose in as much as the cohesion report had since become public. As regards the second allegation, the Commission observed that, when it adopted the Second Report on Economic and Social Cohesion in January 2001, it highlighted the question of the future of cohesion policy. In conjunction with the adoption of this report, the Commission launched a broad consultation of all partners, interest groups, associations and potential beneficiaries of cohesion policy. The major event in this consultation process was the second Forum on Economic and Social Cohesion in May 2001. Since then, a number of conferences, seminars and visits to the regions and the Member States have taken place at all levels in the departments responsible for structural policies. On 15 May 2003, DG REGIO set up, on its internet site, a special area for debate on the future of cohesion policy. As a result, all interested parties had an opportunity to express their views in advance of the publication of the third report on Economic and Social Cohesion. The Commission also received hundreds of contributions, memoranda and opinions from Member States and regions, towns and cities, regional organisations, the social partners, NGOs and research institutes. The Member States were also consulted at ministerial level on a number of occasions at the informal Council meetings held in Namur, Chalkidiki, Rome and Portlaoise. In addition, ad hoc meetings took place with political leaders of regions and local authorities. A variety of associations and NGOs have had an opportunity to exchange their ideas at both political level and within the various departments. On the basis of this consultation and its own analytical work, the Commission presented the Third Report on Economic and Social Cohesion, adopted in February 2004. The report lays down the position of the Commission, which constitutes the basis for any future regulatory action. The final stage in the consultation process was the third Forum on Economic and Social Cohesion, which was held in May 2004 and was attended by some 1500 people. These included representatives of most of the beneficiaries, interest groups, associations and authorities with powers in the field of structural policies. It was also attended by NGOs like BirdLife International and WWF. The Commission takes the view that this forum effectively closes the external consultation phase for the drafting and adoption of future regulatory action concerning the Structural Funds. The Commission noted that the various NGOs and associations did not provide sufficient input in terms of expressing and defending their positions, including vis--vis other partners at local, regional and national levels. The Commission would welcome more input from NGOs, but this would mean that they should mobilise more effectively in the future.

354

The Commission thus believes that it has acted as transparently as possible in preparing this report and that it has complied with the minimum consultation standards as laid down in its communication of 11 December 2002, COM(2002)704 final. The complainant's observations The complainant made four comments on the Commission's opinion. Firstly, the complainant welcomed the fact that the Commission appeared to accept at least tacitly the role of the European Ombudsman in taking up this complaint. The complainant interprets that failure to apply the standards correctly could be equivalent to maladministration and that therefore the institution would be answerable to the European Ombudsman. The Ombudsman might also, as he did in the case of access to documents, take the initiative of inviting other EU institutions and bodies to follow the Commission and establish their own standards of consultation. The complainant secondly observed that there is no denying that there has been a debate about the future of EU cohesion policy, both in the Convention on the future of Europe and in the run-up to the presentation of the Third Cohesion Report. The question though remains whether all this is enough to claim that the minimum standards of consultation have been applied. The consultation process was begun before the minimum standards were approved and the Commission offers no explanation of how the standards once adopted influenced the rest of the process. The Commission has not produced a consultation plan. Whilst there is no denying that there were consultations, it is equally clear that they fell short of the minimum standards in a number of respects. The Commission admitted that NGOs did not provide sufficient input, despite the fact that the Communication of December 2002 states that "the overall rationale of this document is to ensure that all relevant parties are properly consulted". The complainant accepts that this is not easy, given the wide range of potentially interested actors and types of organisations at different geographical levels. If, however, the minimum standards had been properly applied, there would have been much more substantial input from civil society and NGOs in particular. The complainant thirdly compared the consultations carried out by the Commission on EU Cohesion policy with the five minimum standards set out in the Commission's Communication. As regards the clear content of the consultation process, the complainant pointed out that, although the consultation process and DG REGIO's website were clear, they were designed with regional and local authorities in mind. It did not really appear that the views of NGOs were being asked for, and as a result they failed to respond. As regards the consultation target groups, the complainant sees no evidence that the Commission made a special effort to meet this standard with regard to NGOs. Since there was no special effort to identify the target groups to be reached, publicity on the consultation was limited to the DG REGIO website and there was no special invitation by letter or e-mail sent to European level NGOs, let alone a wider

355

audience outside Brussels, to participate in the cohesion debate. The complainant sees no particular problems with the consultation process when it comes to time limits. It is also clear that it had some influence on the Commission's thinking and proposals, and that some feedback was provided. The problem is not the open and transparent way the debate was conducted but the fact that it was not sufficiently balanced and inclusive of civil society. Finally, as regards wider implications, the complainant welcomed the fact that in its draft Regulation for the future of the Structural Funds (COM (2004)492 final), the Commission had proposed that civil society and NGOs should be included for the first time as partners to be consulted by Member States in drawing up the national strategic framework, and their programmes. This makes it all the more important that the Commission should itself have a consultation plan for the involvement of civil society in EU Cohesion policy, as a model to Member States. This is the main conclusion of a recent publication by ECAS on consultation of NGOs in the new Member States of Central and Eastern Europe about the EU's Structural Funds, entitled "The Illusion of Inclusion". In conclusion, the complainant requested from the European Ombudsman: to confirm that he is competent to receive complaints about the minimum standards of consultation and to provide guidance to citizens and to the Commission. to recommend that the Commission should draw up a plan to include civil society and NGOs in particular as partners to be consulted in the design and implementation of EU Cohesion Policy. to take into account the wider implications of the need to consult at European level as an example to Member States by considering the conclusions and recommendations of the study "the illusion of inclusion".

Observations from a third party In his complaint, the complainant had indicated that the Ombudsman may hear from other organisations directly with regard to the present complaint. On 26 November 2004, the Regional Policy Officer of RSPB, a UK charity working to secure a healthy environment for birds and wildlife, reacted to the Commission's opinion. He observed that, despite its early request, BirdLife International was not represented at the Third Cohesion Forum on 11 May 2004. Neither were other NGO partners granted the floor to discuss environmental concerns. He also disagreed with the Commission's comment that NGOs failed to provide sufficient input in terms of expressing and defending their positions and that they were not sufficiently mobilised to be consulted. BirdLife International submitted its

356

position paper to the web-based debate in mid-2003 and later sent an in-depth report and recommendations on the mid-term evaluation of the Structural Funds 2000-2006. BirdLife also met with Commission officials face-to-face. In December 2003, EU level environmental NGOs decided to pool their individual efforts and to form a coalition to influence the future of EU regional policy. In this new framework, two conferences were held in February and October 2004 attended by representatives from the Commission, a joint position statement on the future of EU regional policy was made in May 2004 and regular contacts were made with the Commission.

THE DECISION 1. Preliminary remark concerning the competence of the Ombudsman 1.1 In his complaint and observations, the complainant requested the Ombudsman to confirm that he is competent to receive complaints about the minimum standards of consultation contained in Commission Communication COM(2002)704 of 11 December 2002 and to provide guidance to citizens and to the Commission. 1.2 The Ombudsman would first like to recall that, according to Article 195 of the EC Treaty, he is competent to receive complaints "concerning instances of maladministration in the activities of the Community institutions and bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role". By opening an inquiry on 27 April 2004, the Ombudsman has already indicated to the complainant that he is competent to deal with his complaint. There is indeed nothing to indicate that this complaint would fall outside the mandate of the European Ombudsman. Nor has the Commission raised any objection concerning the admissibility of the complaint. 1.3 The Ombudsman notes that point 3.8 and following below deals with the question of whether failure to comply with the principles, rules and procedures contained in a Communication could amount to maladministration. 1.4 The Ombudsman would further like to point out that, in addition to his re-active role - namely opening inquiries into possible maladministration on the basis of incoming complaints, the Ombudsman can also act in a pro-active mode in order to improve the quality of administration and to tackle problems of systemic maladministration. The Ombudsman does not exclude the possibility of a future proactive initiative based on the Commission's Communication on minimum standards for consultation. Such an initiative would, however, be separate from the present inquiry which is into a complaint about an alleged instance of maladministration.

357

2. The alleged failure to respect the deadlines set out in Regulation 1049/2001 2.1 The complainant alleges that the Commission has failed to respect the deadlines set out in Regulation 1049/2001 with regard to his request for access to the third Cohesion report. 2.2 The Commission observed that the complainant's request of 9 January 2004 for access to the draft third Cohesion report was registered by the Secretariat General on 16 January 2004 and forwarded by virtual fax to DG REGIO. Because of a technical problem, the complainant's request was not properly assigned and dealt with. The Secretary General of the Commission apologised to the complainant on this point in his letter of 31 March 2004 in which he replied to the complainant's confirmatory application of 8 March 2004. On 20 April 2004, the complainant replied to this letter acknowledging that his confirmatory application had become devoid of purpose in as much as the cohesion report had since become public. 2.3 The Ombudsman notes that, in his letter of 31 March 2004, the Secretary General of the Commission regretted that, because of a technical problem, the complainant's letter of 9 January 2004 had never reached the responsible department, and apologised for the fact that he had not received an answer. In his reply of 20 April 2004 to that letter, the complainant observed that, in the light of the explanation and apology for the way the original request for access to documents had been handled, he could accept this issue as settled, subject to any observations of the Ombudsman. 2.4 The Ombudsman notes the complainant's view that this part of the complaint can be considered as settled and has no further observations to make on the matter. 3. The alleged failure to consult NGO's on the future of the Structural Funds 3.1 The complainant alleges that the Commission had failed to consult NGOs on the future of the Structural Funds. In this context, the complainant referred to the Commission Communication COM(2002)704 of 11 December 2002. The complainant underlined the particular importance of informing and hearing NGOs as widely as possible on the future of the Structural Funds, and stressed that there are issues on which NGOs in all EU Member States should be consulted. So far there has been a serious imbalance in the European cohesion debate between the involvement of regional authorities on the one hand and NGOs and local community development interests on the other hand. 3.2 In its opinion, the Commission observed that, when it adopted the Second Report on Economic and Social Cohesion in January 2001, it launched a broad consultation of all partners, interest groups, associations and potential beneficiaries of cohesion policy, the major event in this consultation process being the second Forum on Economic and Social Cohesion in May 2001. The Commission also pointed out that, on 15 May 2003, DG REGIO set up, on its internet site, a special area for debate on the future of cohesion policy. As a result, all interested parties had an opportunity to

358

express their views in advance of the publication of the Third Report on Economic and Social Cohesion. On the basis of this consultation and its own analytical work, the Commission presented the Third Report in February 2004. The Report lays down the position of the Commission, which constitutes the basis for any future regulatory action. The final stage in the consultation process was the third Forum on Economic and Social Cohesion, which was held in May 2004 and was attended by some 1500 people, including representatives of most of the beneficiaries, interest groups, associations and authorities with powers in the field of structural policies. It was also attended by NGOs like Bird Life International and WWF. The Commission would welcome more input from NGOs, but this would mean that they should mobilise more effectively in the future. On the basis of the above, the Commission believes that it has acted as transparently as possible in preparing this report and that it has complied with the minimum consultation standards. 3.3 The Ombudsman notes that the document of reference for the present complaint is the "Communication from the Commission - Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission (COM(2002)704 final)". The Ombudsman also notes that ECAS is included in the list of contributors contained in the annex to the Communication. 3.4 As regards the nature of this document, the Commission Communication states that "some of those consulted questioned the Commission's decision to set consultation standards in the form of a Commission communication (i.e. in the form of a policy document) instead of adopting a legally-binding instrument. () However, the Commission remains convinced that a legally-binding approach to consultation is to be avoided, for two reasons: First, a clear dividing line must be drawn between consultations launched on the Commission's own initiative prior to the adoption of a proposal, and the subsequent formalised and compulsory decision-making process according to the Treaties. Second, a situation must be avoided in which a Commission proposal could be challenged in the Court on the grounds of alleged lack of consultation of interested parties. Such an over-legalistic approach would be incompatible with the need for timely delivery of policy, and with the expectations of the citizens that the European Institutions should deliver on substance rather than concentrating on procedures. Moreover, the fear expressed by some participants in the consultation process that the principles and guidelines could remain a dead letter because of their non-legally binding nature is due to a misunderstanding. It goes without saying that, when the Commission decides to apply the principles and guidelines, its departments have to act accordingly. () The general principles and minimum standards should serve as a reference point for a permanent in-house learning process. 3.5 With regard to the scope of the consultation, the Commission communication points out that "many of those consulted wanted a clearer explanation of the kinds of initiatives to which the new consultation framework will apply. In response, the Commission clarified the scope of the consultation standards.

359

However, the Commission has not taken up the idea proposed by some participants that the scope of the standards should be generally widened (to cover all consultation), or that they should be separated from the Commission's approach to extended impact assessments. This decision meets the overriding principle of proportionality, which must govern the Commission's administrative practice (see the general principles under the heading of 'effectiveness'). It is also linked to the fact that the Commission has to assess its consultation needs on a case-by-case basis in line with its right of initiative. By the same token, the Commission must emphasise that consultation can never be an open-ended or permanent process. In other words, there is a time to consult and there is a time to proceed with the internal decision-making and the final decision adopted by the Commission". 3.6 The general principles and minimum standards for consultations by the Commission, which apply from 1 January 2003, are set out in Part V of the Communication. It provides that "the principles draw primarily on the general principles guiding the conduct of the Commission's business. These key principles were highlighted in the Commission's White Paper on European Governance: Participation, openness, accountability, effectiveness and coherence. The Communication goes on to describe in detail the application of those principles to the consultation process. 3.7 The Communication sets out the following five minimum standards for the consultation process: A) Clear content of the consultation process: all communications relating to consultation should be clear and concise, and should include all necessary information to facilitate responses; B) Consultation target groups: when defining the target group(s) in a consultation process, the Commission should ensure that relevant parties have an opportunity to express their opinions; C) Publication: the Commission should ensure adequate awareness-raising publicity and adapt its communication channels to meet the needs of all target audiences. Without excluding other communication tools, open public consultations should be published on the Internet and announced at the "single access point"; D) Time limits for participation: the Commission should provide sufficient time for planning and responses to invitations and written contributions. The Commission should strive to allow at least 8 weeks for reception of responses to written public consultations and 20 working days notice for meetings; and E) Acknowledgement and feedback: receipt of contributions should be acknowledged. Results of open public consultation should be displayed on website linked to the single access point on the Internet. 3.8 As regards dealing with complaints which allege a failure to comply with the Commission Communication on minimum standards for consultation, the Ombudsman notes that, according to the European Code of Good Administrative Behaviour, the institutions shall ensure that the principle of equality of treatment is respected and take into consideration the relevant factors and give each of them its proper weight in the decision they take(3). The Ombudsman would thus regard failure to comply with the procedures and principles set out in the Communication on minimum standards for consultation as maladministration. The Ombudsman also

360

points out in this context that he has already taken a similar view as regards the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(4). 3.9 In the present case, the Ombudsman considers on the basis of the available information that the Commission appears to have organised a genuine consultation process with regard to its cohesion policy, in which the major events were the Second and Third Forums on Economic and Social Cohesion in May 2001 and May 2004. The Ombudsman further notes that the Commission has, on the website of DG REGIO(5), provided for a debate forum on the future of cohesion policy, entitled "A new Cohesion Policy after 2006". This site presents the Commissions proposals and the debate about Cohesion Policy and its Structural Funds and instruments beyond 2006. It contains various links to contributions in the debate as well as an invitation to join the debate by sending contributions to the e-mail address REGIOreformdebate@cec.eu.int). 3.10 As regards now the follow-up of the five minimum standards set out in the Commission Communication, the Ombudsman notes that, in his observations, the complainant has pointed out various shortcomings with regard to the minimum standards A), B), C) and, to a lesser extent, D). 3.11 With regard to minimum standard A) ("Clear content of the consultation process"), the Ombudsman understands that the complainant's remarks on this point in fact rather concern the target groups (i.e. point B)) than the content itself of the consultation process, as the complainant observed that the consultation process and the website were clear. It therefore appears that minimum standard A) does not seem to raise a particular problem. 3.12 As regards minimum standard B) ("Consultation target groups"), the complainant alleged that there was no evidence that the Commission made a special effort to meet this standard with regard to NGOs and that the Commission mainly focused on regional and local authorities. With this regard, the Ombudsman firstly notes that NGOs (both European and national organisations) are mentioned as a separate title in the list of contributors contained in the Commission's communication. The Ombudsman further notes that the Commission, in its opinion, seems to agree with the complainant that the input of NGOs could be improved. However, this does not appear to constitute an instance of maladministration by the Commission, since there is no evidence to show that the Commission is responsible for the fact that input from NGOs was not higher. 3.13 As regards minimum standard C) ("Publication"), the Ombudsman notes that the Commission has foreseen in an appropriate publicity by centralising all the relevant information concerning the Cohesion Policy on one single internet page of DG REGIO. The Ombudsman further notes that the Commission uses the single access point "Your-Voice-in-Europe" webportal(6) which is the general internet page for

361

consultations in all the policies covered by the European Commission. There appears thus to be no instance of maladministration with regard to the publicity concerning the consultation process. 3.14 As regards minimum standard E) ("Acknowledgement and feedback"), the Ombudsman notes that the complainant stated that it was not the open and transparent way in which the debate was conducted which was the problem, but the fact that it was not sufficiently balanced and inclusive of civil society. It thus appears that this comment of the complainant rather relates to the lack of involvement of NGOs in the consultation process which was dealt with under the evaluation of minimum standard B) above. 3.15 On the basis of the above - and in particular with regard to the five minimum standards of consultation - the Ombudsman found no instance of maladministration with regard to the consultation of NGOs on the future of the Structural Funds. 3.16 Finally, the Ombudsman notes that the complainant has questioned whether the minimum standards are sufficiently clear and whether the Commission's traditionally sectoral approach to consultation should be supplemented by a more cross-sectoral and holistic one, particularly when its proposals have an impact on a wide range of interests. 3.17 In this regard, the Ombudsman first points out that the review he has carried out in the present case demonstrates that the minimum standards are sufficiently clear to make it possible to evaluate whether the Commission has complied with them. As regards the possible adoption of a more cross-sectoral and holistic approach to consultation, the Ombudsman considers, for the reasons stated above, that the Commission has complied with its announced minimum standards in the present case. 3.18 The Ombudsman does not, however, exclude the possibility either that the minimum standards could be expressed more clearly, or that a more cross-sectoral and holistic approach to consultation could be appropriate in some cases. The Ombudsman points out that the complainant has the possibility to make suggestions in this regard to the Commission and that it would be good administration for the Commission to give serious consideration to any such suggestions. 4. Conclusion With regard to the first allegation, it appears from the Commissions comments and the complainant's letter of 20 April 2004 to the Secretary General of the Commission that the Commission has taken steps to settle the matter and has thereby satisfied the complainant. On the basis of the Ombudsman's inquiries into the second allegation, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

362

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

P. Nikiforos DIAMANDOUROS ------------------------Regulation (EC) n 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. Communication from the Commission - Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission (COM/2002/0704 final). Articles 5 (Absence of discrimination) and 9 ("Objectivity") of the European Code of Good Administrative Behaviour. See also Case T-70/99, Alpharma Inc. v Council, 2002 ECR II-03495, paragraph 140.
(4) (3) (2) (1)

(COM(2002) 141 final), OJ 2002 C 244/5. http://europa.eu.int/comm/regional_policy/debate/forum_en.htm http://europa.eu.int/yourvoice

(5)

(6)

363

Decision of the European Ombudsman on complaint 1096/2004/(AJ)TN against the European Commission

Strasbourg, 23 March 2005

Dear Mr P., On 7 April 2004, you made a complaint to the European Ombudsman on behalf of the European Emergency Number Association (EENA). Your complaint was against the European Commission and concerned the implementation of the European emergency call number 112. On 15 June 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 17 September 2004. I forwarded it to you with an invitation to make observations, which you sent on 8 November 2004. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT In April 2004, a complaint was made to the Ombudsman on behalf of the European Emergency Number Association (hereafter "EENA"). The complaint was against the European Commission and concerned the implementation of the European emergency call number 112 (hereafter "112"). According to the complainant, the relevant facts are, in summary, the following: Background EENA is a non-profit association established in Belgium, working to promote knowledge and efficient use of the single European emergency number 112, which was established in 1991 by a Council Decision. Over the years, the Commission has conducted two surveys about the implementation of 112 in the Member States. The last survey is from October 2001. The Commission has also conducted a Eurobarometer survey of knowledge about 112 among European citizens and it has financed several workshops and published a call for proposals for actions concerning information to the public, including information about 112. In December 2003, the Commission announced, in the framework of the "Article 226 procedure(1)" that reasoned opinions had been sent to seven Member States, which have still not implemented the relevant regulatory framework regarding 112.

364

Lack of implementation of legislation in force According to the complainant, the implementation of the legislation in force concerning 112 should have two components, namely (i) the telecommunications component, which depends on providers of telecommunications services and (ii) the civil protection component, which concerns the activities of the emergency services (ambulances, fire brigades and police). Although the Commission is quite pro-active as regards the first component, very few, if any, actions are undertaken concerning the second and the legislation in force is therefore not yet effectively implemented. In addition, several initiatives and measures in the field of safety and security of citizens cannot be fully developed because of the poor implementation of the civil protection component of 112. Lack of further action The Commission announced in its work-programme for 2002(2) that it would implement the Communication on civil protection and bio-terrorism, which it adopted in November 2001, and that it would recommend an integrated EU strategy on prevention, preparedness and response to natural, man-made and other risks. However, no recommendation or other document was adopted on these issues in 2002 and the Commission repeated its announcement in its work-programme for 2003(3). Up to the date of the complaint, no documents have been issued regarding the matter, but the Commission mentions in its work-programme for 2004(4) that the enlargement will require greater effort and better co-ordination to ensure the security of individuals when moving within the European Union. The Commission further mentions that, for 2005, there is a need to focus on consolidating the right of everyone to protection through the enhancement and extension of the civil protection response capacity in the enlarged Union. However, a Communication issued by the Commission in March 2004 concerning the Civil Protection Capacity of the European Union(5) covers in a very incomplete way, if at all, the needs of the citizens in this respect, and it does not mention 112 at all. The complainant argues that the Commission, through its unfulfilled promises of an integrated EU strategy on prevention, preparedness and response to natural, man-made and other risks, has created false expectations among citizens. The complainant further argues that the Commission gives the impression that the civil protection component of 112 is non-existent. Commissioner Wallstrm(6) has implied that the responsibility for 112 lies with Commissioner Liikanen(7), but the complainant argues that matters concerning the civil protection component clearly lie within the responsibility of DG Environment. Failure to maintain website The complainant further argues that the Commission's DG Environment does not keep its 112 website properly updated. Although the 112 website mentions 8 October 2003 as the latest update, it seems as if the last substantive update was the inclusion of the conclusions of the workshop on the implementation of 112, held in Sweden in March 2002. Furthermore, the site still mentions and contains links to obsolete legislation

365

and it does not contain any information about the projects "Analysis of the 112 Service in Portugal" or "SOS-112" mentioned in the mid-term evaluation report of the Community Action Programme in the field of Civil Protection (2000-2004). In fact, the Commission's Civil Protection website does not contain information about projects financed after 31 December 2001, which is in direct violation of Article 169 of Commission Regulation 2342/2002(8) and Article 12 of Regulation 1049/2001(9). Allegations and claims The complainant alleges, in substance, that the Commission has failed to: 1. Ensure the correct application by the Member States of Community law relating to the European emergency call number 112; 2. Take further action regarding the civil protection component of 112, as consistently promised in its work-programmes; and 3. Supply updated and relevant information concerning 112 on its website. The complainant claims, in substance, that the Commission should: 1. Ensure better information to the citizens by correcting and updating its website; 2. Launch the relevant supportive actions in the 112 field, as promised in its different declarations; and 3. Provide reasons why relevant 112 projects, although requested through calls for proposals, were rejected or were launched but not completed, and why their progress was never made known to the public. The Ombudsman's analysis of the admissibility of the complaint The Treaty establishing the European Community and the Statute of the European Ombudsman set precise conditions as to the admissibility of a complaint. The Ombudsman can only start an inquiry if these conditions are met. One of these conditions is: Article 195 of the Treaty establishing the European Community: "In accordance with his duties, the European Ombudsman shall conduct inquiries for which he finds grounds (...)" As regards the first allegation, that the Commission has failed to ensure the correct application by the Member States of Community law relating to the European emergency call number 112, the complainant appeared to have complained to the Commission(10) regarding the Member States' allegedly inadequate application of

366

Community law on 12 January 2004. By letter of 30 January 2004, the Commission appeared to have informed the complainant that his complaint had been registered. The Commission therefore had until the beginning of 2005 (one year from the date of registration of the complaint) to take action or to inform the complainant of its intention to close the case(11). In view of the above, the Ombudsman concluded that there were not sufficient grounds for opening an inquiry on this allegation, since the complainant had provided no evidence of maladministration by the Commission regarding the matter. Another condition as to the admissibility of a complaint is: Article 2.4 Statute of the European Ombudsman: The complaint (...) must be preceded by the appropriate administrative approaches to the institutions and bodies concerned. The above condition did not seem to be met as regards the complainant's third claim (that the Commission should provide reasons why relevant 112 projects, although requested through calls for proposals, were rejected or were launched but not completed, and why their progress was never made known to the public). The reason was that the complainant did not appear to have made any administrative approaches to the Commission in relation to this claim. The Ombudsman therefore informed the complainant that this claim was not admissible and suggested that he could address the Commission directly regarding the matter. However, the Ombudsman opened an inquiry into the second and third allegation and into the first and second claims.

THE INQUIRY The Commission's opinion In its opinion, the Commission makes, in summary, the following comments: The obligation on the Member States as regards the 112 number is now incorporated in Article 26 of the Universal Service Directive(12). The alleged failure to take action regarding 112 and the claim that supportive actions should be launched The latest Community Action Programme in the field of civil protection covers the period 2002-2004. It aims at supporting and supplementing the Member States' efforts at national, regional and local levels for the protection of persons, property and the environment in the event of natural or technological disasters. It is also intended to

367

facilitate co-operation, exchange of experience and mutual assistance between Member States in this field. Project management and funding through projects is one of the methods used to promote actions at national and regional level with an added value at the European level. During the period 2001-2003, the Commission's Civil Protection Unit within DG Enlargement co-financed a number of projects relevant to the European emergency call number 112 following calls for proposals. These projects can be summarised as follows: The final report of the project "Awareness campaign for the utilisation of the single European call number 112" (call for proposals 2001) was submitted to the Commission in May 2004 and was published on the website after its evaluation; The project "Effective handling of emergency calls" (call for proposals 2001) carried out by the Swedish Rescue Service was finalised at the beginning of 2002 and the report has been published on the website; The project "SOS 112" (call for proposals 2002) was cancelled by the contractor; The project "Analysis of the 112 Services in Portugal" (call for proposals 2002) has been finalised and published on the website (see further below); The project "Civil protection information for Europeans on holiday" (call for proposals 2002) by the Chamber Group for the development of Greek Isles has been finalised and the final report is published on the website. In relation to this project, the complainant was invited to the workshop held on 31 October - 2 November 2003 on Chios Island, Greece; The "Best practices and life support kits for self protection of EU citizens in households, in the case of a daily or disastrous emergency" (call for proposals 2003) is a project run by the French Red Cross. The project, which is ongoing, foresees the dissemination of 112. Besides project management, the Civil Protection Unit also prioritises co-ordination and co-operation with other Commission services. In the field of 112, there is close co-operation with DG Information Society. The Civil Protection Unit participates and promotes participation in the "European forum for officials in the field of public safety and emergency communications and information systems" set up by DG Information Society. The members of the Civil Protection Management Committee are regularly informed about the activities of this forum, as well as of other actions carried out by the Commission services.

368

As regards the claim that supportive actions should be launched, the Commission argues that it seeks every possibility to foster the awareness of civil protection and of 112 among national authorities, as they are best placed to promote 112 at a national level. The Commission's Civil Protection Unit therefore regularly informs the Management Committee about on-going projects and actions and about actions carried out by other relevant Commission services, such as DG Information Society and the Joint Research Centre, in order to improve information flow to Member State level. The alleged failure and claim relating to the website The Civil Protection Unit seeks to update the website regularly(13). While there may have been some delays in this respect in the past few years, the website is now up-todate. The website contains links to other Commission services dealing with 112, such as DG Information Society. It also contains links to relevant projects, legislation and organisations, including a link to EENA. The project "Analysis of the 112 services in Portugal" was published on the website after the Commission had evaluated the final report. The need for financial clarifications somewhat delayed the process. By letter of 5 February 2004, the Commission informed the complainant directly that the project "SOS 112" had been cancelled by the contractor. That letter also informed him of the status of the Portuguese project. In view of the above, the Commission considers the complainant's allegations and claims to be unfounded. The complainant's observations In his observations, the complainant makes, in summary, the following remarks: The alleged failure to take action regarding 112 and the claim that supportive actions should be launched The Commission bases its reply to this allegation on the work achieved in the framework of the Community Action Programme in the field of Civil Protection. Article 3 of the Council Decision(14) establishing this programme mentions the criteria on the basis of which individual actions shall primarily be selected. One of these criteria is the action's "contribution to public information, education and awareness, so as to help citizens to protect themselves more effectively(15)". The complainant argues that only one of the projects listed by the Commission as relevant to 112 satisfies this criterion. The rest of the actions listed have merely ensured that one or two officials from each Member State (most of them members of the Management Committee, which authorised the projects in the first place) got the opportunity to travel and participate in workshops organised by national civil protection authorities. According to the complainant, only the Belgian project "Awareness campaign for the utilisation of the 112" seems to satisfy the above criterion, but that campaign was so limited that

369

the general public in Belgium still remains uninformed about the existence and use of 112. The Commission's opinion mentions nothing about actions organised on the basis of the Commission's announcement in its work-programme for 2002, recommending an integrated EU strategy on prevention, preparedness and response to natural, man-made and other risks. To the complainant's knowledge, and despite the Commission's promise in this regard, no such actions have been organised. Nor does the Commission mention anything about actions to reinforce 112 in view of the full development of initiatives in the context of Community activities in the field of safety and security of citizens (road safety, occupational safety, health insurance card, information society standards by emergency services). The only action the Commission mentions in this regard is its active participation and promotion of the European forum of officials in the field of public safety and emergency communications. However, to the complainant's knowledge, this forum is not yet operational, as acknowledged by the Commission in its Communication on Prevention, preparedness and response to terrorist attacks(16), where it states that it is working to set up such a forum. The complainant accepts the fact that the Commission has launched actions and been conducting activities in the civil protection field. However, given the rather poor result of the Commission's actions for more than a decade, the complainant questions the effectiveness and efficiency of these actions. The complainant notes, for instance, that after 13 years, 112 is still unknown to four out of five Europeans, and the right of everyone to protection, laid down in the Commission's work-programme for 2004(17), is greatly hampered by the lack of a high performance 112 throughout the EU. The alleged failure and claim relating to the website Despite the website having been updated after the Ombudsman opened his inquiry, it still contains several flaws. The website does not mention in a clear and user-friendly way the legislation in force in the field of 112 and it is still available only in English, while the Europa portal, and especially the parts that directly concern European citizens, is available in all official languages. The 112 website is furthermore hidden amongst thousands of other sites on the Europa server, with no links from other relevant EU policies in the field of safety and security of citizens. It cannot, therefore, be seen to ensure proper information to citizens. The part of the site relating to the "State of implementation of the 112" has not been updated since 2001 and information about the 15 Member States before enlargement is out of date while there is still no information about the 10 new Member States. Furthermore, despite having been published on the website, the project "Analysis of the 112 services in Portugal" has not been promoted correctly and no follow-up activities have been reported on the website.

370

THE DECISION 1. Introductory remark about the complainant's Article 226 complaint 1.1 The complaint concerns alleged failures by the European Commission in relation to the implementation of the European emergency call number 112. In his complaint to the Ombudsman, the complainant alleged, inter alia, that the Commission had failed to ensure the correct application by the Member States of Community law relating to the European emergency call number 112. As regards this allegation, the Ombudsman noted that the complainant appeared to have made an Article 226 complaint to the Commission regarding the Member States' allegedly inadequate application of Community law and that the Commission had informed the complainant, by letter of 30 January 2004, that his complaint had been registered. In view of the fact that the Commission has one year from the date of registration of a complaint to take action or to inform the complainant of its intention to close the case(18), the Ombudsman concluded that, at the time of submitting the complaint to the Ombudsman, there were not sufficient grounds for opening an inquiry on the allegation in question, since the complainant had provided no evidence of maladministration by the Commission regarding the matter. 1.2 The Ombudsman notes that the one-year deadline for the Commission to take action on the complainant's Article 226 complaint or to inform him of its intention to close the case appears to have passed. It should be noted that the complainant has the possibility to make a new complaint to the Ombudsman, if he considers that the Commission has not dealt with his Article 226 complaint in accordance with its communication on the relations with the complainant in respect of infringements of Community law(19). 2. The alleged failure to take action regarding 112 and the claim that supportive actions should be launched 2.1 The complainant argues that the Commission has promised, in different ways and in all its work-programmes for the years 2002-2004, to take further action regarding the civil protection component of 112. However, until today, no further actions relating to 112 have been taken and the complainant argues that the Commission's unfulfilled promises have created false expectations among citizens. The complainant also argues that the Commission gives the impression that the civil protection component of 112 is non-existent. In essence, the complainant alleges that the Commission has failed to take further action regarding the civil protection component of 112, as consistently promised in its work-programmes. The complainant claims that the Commission should launch the relevant supportive actions in the 112 field, as promised in its different declarations. 2.2 The Commission argues that, within the framework of the Community Action Programme in the field of civil protection, it has co-financed a number of projects relevant to 112. Besides project management, the Commission's Civil Protection Unit

371

also prioritises co-ordination and co-operation with other Commission services. The Civil Protection Unit participates and promotes participation in the "European forum for officials in the field of public safety and emergency communications and information systems" set up by DG Information Society and the Commission seeks every possibility to foster the awareness of civil protection and 112 to national authorities, as they are best placed to promote 112 at national level. The Civil Protection Unit provides regular information about on-going projects and actions at Member State level. 2.3 In reply to the Commission's opinion, the complainant argues that only one of the projects listed by the Commission satisfies the condition that the action should contribute to public information, education and awareness, as required by Article 3 of the Council Decision establishing the Community Action Programme in the field of Civil Protection. The complainant further argues that the only further action that the Commission refers to is the European forum for officials, which, to the complainant's knowledge, is not yet operational. 2.4 The Ombudsman has consistently emphasised the importance of empowering the citizens of the European Union and informing them of their rights. Accordingly, the Ombudsman understands the complainant's aspirations in this regard. However, as regards the context of the present complaint, the Ombudsman points out that, in implementing its work programmes, the Commission necessarily enjoys a degree of discretion, for the exercise of which it is accountable to the European Parliament through the budgetary procedure. Furthermore, the Ombudsman's role in dealing with allegations of maladministration is to act as a guardian of the rule of law, of good administration and of fundamental and human rights. In the present case, the relevant question for the Ombudsman is whether the Commission has acted in accordance with the rules and principles that are binding on it, including the principles of good administration set out in the European Code of Good Administrative Behaviour(20). The Ombudsman takes into account in this context that the twelfth recital of the Universal Service Directive recognises that an important interest of citizens is involved by stating that "[i]nsufficient information about the existence of '112' deprives citizens of the additional safety ensured by the existence of this number at European level especially during their travel in other Member States". The Ombudsman also notes, however, that Article 26 (4) of the Directive makes Member States responsible for provision of adequate information about 112. Against this background and after careful examination of the arguments put forward by the complainant and the Commission and of the documents referred to during the course of the inquiry, the Ombudsman does not find any evidence that, in implementing the work programmes concerned (including the European forum for officials, mentioned in the complainant's observations), the Commission has acted outside the scope of its discretionary powers or breached any rule or principle that is binding upon it. 2.5 The Ombudsman notes, however, that in his observations, the complainant argues that the Commission failed to choose projects in the 112 field in accordance with Article 3 of the Council Decision establishing the Community Action Programme in

372

the field of Civil Protection. The complainant argues that only one of the projects referred to by the Commission in its opinion satisfies the criterion that actions shall be selected primarily on the basis of their contribution to public information, education and awareness, so as to help citizens to protect themselves more effectively. The Ombudsman considers this argument to constitute a new allegation, which the complainant does not appear to have previously brought to the Commission's attention(21). The Ombudsman therefore finds no ground to pursue the matter within the context of the present inquiry. If the complainant wishes to pursue the allegation further, he should approach the Commission directly with his arguments. If he does not receive a satisfactory reply within a reasonable time, he could consider making a new complaint to the Ombudsman. 2.6 On the basis of the above, the Ombudsman finds no maladministration by the Commission as regards this part of the complaint. However, the Ombudsman points out that the complainant could consider submitting a petition to the European Parliament regarding the relevant work programmes of the Commission and their implementation. 3. The alleged failure relating to the website and related claim 3.1 The complainant argues that the Commission does not properly update its 112 website. The last substantive update appears to be the inclusion of the conclusions of the workshop on the implementation of 112, held in Sweden in March 2002. According to the complainant, the site still contains links to obsolete legislation and it does not contain any information about the projects "Analysis of the 112 Service in Portugal" or "SOS-112". The complainant also argues that the Commission's Civil Protection website does not contain information about projects financed after 31 December 2001, which is direct violation of Article 169 of Commission Regulation 2342/2002 and Article 12 of Regulation 1049/2001. The complainant alleges that the Commission has failed to supply updated and relevant information concerning 112 on its website. The complainant claims that the Commission should ensure better information to the citizens by correcting and updating its website. 3.2 The Commission argues that it seeks to regularly update the website which, despite certain delays in the past, now is up to date. The website contains links to other Commission services dealing with 112. It also contains links to projects - such as the project "Analysis of the 112 services in Portugal" - legislation and organisations. 3.3 In reaction to the Commission's opinion, the complainant provides further arguments to support his allegation and claim regarding the website. He argues, essentially, that the website lacks user-friendliness. According to the complainant, the website is still only available in English and that it is hidden amongst thousands of sites on the Europa server, with no links from other relevant EU policies. He also argues that the part of the site relating to the "State of implementation of the 112" has not been updated since 2001 and information about the 15 Member States before

373

enlargement is out of date while there is still no information about the 10 new Member States. The complainant acknowledges that the project "Analysis of the 112 services in Portugal" has been published on the website, but argues that it has not been promoted correctly and no follow-up activities have been reported on the website. 3.4 The Ombudsman's services have accessed the 112 website during the course of the present inquiry and note that it states that it was last updated on 21 September 2004. This appears substantially correct, given that the website contains links to, inter alia, a survey from the summer of 2004 concerning the implementation of 112 in the Member States. The Ombudsman further notes that the complainant is correct in stating that the website contains links to obsolete legislation. However, these links clearly refer to how 112 was established and there is also a link to the Universal Service Directive, stating that the relevant legal provisions are now incorporated in its Article 26. The Ombudsman therefore considers that citizens accessing the website are made aware that the links in question contain historical information. As regards projects financed after 31 December 2001, the Ombudsman recalls that Article 169 of Regulation 2342/2002 stipulates that "[a]ll grants awarded in the course of a financial year /.../ shall be published on the Internet site of the Community institutions during the first half of the year following the closure of the budget year in respect of which they were awarded". The Ombudsman notes that the Commission's DG Environment has published lists of grants awarded in 2003 on its website(22) and that the deadline for publishing such lists for 2004 has not yet expired. As regards the question of direct accessibility to documents, as governed by Article 12 of Regulation 1049/2001, the Ombudsman considers that the complainant has not specified which the documents concerned are. 3.5 The Ombudsman also notes that the complainant, in his observations on the Commission's opinion, puts forward further arguments in support of his allegation that the Commission has failed to supply updated and relevant information on the 112 website. These arguments relate to language, links from other policies, the state of implementation of 112 and promotion and follow-up activities regarding the project "Analysis of the 112 Service in Portugal". The Ombudsman considers these arguments constitute new allegations which the complainant does not appear to have previously brought to the Commission's attention(23). The Ombudsman therefore finds no ground to pursue these arguments in the context of the present inquiry. If the complainant wishes to pursue these issues further, he should approach the Commission directly with his concerns. If he does not receive a satisfactory reply within a reasonable time, he could consider making a new complaint to the Ombudsman. 3.6 On the basis of the above, the Ombudsman finds no maladministration by the Commission as regards this part of the complaint.

374

4. Conclusion On 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,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Article 226 of the EC Treaty empowers the Commission to bring proceedings against a Member State in respect of infringements of Community law. See COM(2001)620 final, p. 10, third key action.

(2)

See COM(2002)590 final, Annex 2: list of legislative proposals and non-legislative acts (2003/ENV/77) corresponding to the political priorities stated on p. 6.
(4)

(3)

See COM(2004)133 final, p. 8, point 3.2. See COM(2004)200 final. Commissioner for Environment, 1999-2004. Commissioner for Enterprise Policy and the Information Society, 1999-2004.

(5)

(6)

(7)

(8)

Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities.

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. Article 226 of the EC Treaty empowers the Commission to bring proceedings against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law.
(10)

(9)

375

Point 8 of the Annex to the Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (COM(2002)141 final), published in Official Journal 2002 C 244/2.
(12)

(11)

Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive). http://europa.eu.int/comm/environment/civil/prote/112/112_en.htm.

(13)

(14)

999/847/EC: Council Decision of 9 December 1999 establishing a Community action programme in the field of civil protection. Article 3.2.e. See COM(2004)698 final, point 3.4. See COM(2004)133 final.

(15)

(16)

(17)

Point 8 of the Annex to the Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (COM(2002)141 final), published in Official Journal 2002 C 244/2.
(19)

(18)

Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (COM(2002)141 final), published in Official Journal 2002 C 244/2.

The European Code of Good Administrative Behaviour is available at the Ombudsman's website: http://www.euro-ombudsman.eu.int/code/pdf/en/code_en.pdf.
(21)

(20)

Article 2.4 of the Statute of the European Ombudsman stipulates that a complaint to the Ombudsman must be preceded by the appropriate administrative approaches to the institutions and bodies concerned. The Statute of the European Ombudsman is available at the following website: http://www.euroombudsman.eu.int/lbasis/en/statute.htm. http://www.europa.eu.int/comm/environment/funding/2003_grants.htm.

(22)

(23)

Article 2.4 of the Statute of the European Ombudsman stipulates that a complaint to the Ombudsman must be preceded by the appropriate administrative approaches to the institutions and bodies concerned. The Statute of the European Ombudsman is available at the following website: http://www.euroombudsman.eu.int/lbasis/en/statute.htm.

376

Decision of the European Ombudsman on complaint 1155/2004/TN against the European Commission

Strasbourg, 5 April 2005

Dear Mr F., Dear Mrs K., On 10 April 2004, you made a complaint to the European Ombudsman on behalf of the European School Parents Association Culham concerning the European Commission's actions in relation to the phasing out of two language sections in the European School Culham. On 3 May 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 3 August 2004 and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainants, the relevant facts are, in summary, the following: On 28 January 2004, the Board of Governors of the European Schools took a decision to progressively phase out two language sections in the European School Culham. According to the complainants, this decision seriously affects the good functioning of the school. Furthermore, the decision was not taken in conformity with the rules of procedure of the Board of Governors, which say that documents shall arrive in national capitals ten working days before the meeting and that decisions of the Board of Governors should be prepared by a Teaching Committee and an Administrative and Financial Committee. In addition, the procedure for making a decision on the closure of a school or a language section, as set out in point 3.3 of the "Gaignage(1) document", was not followed. The working group which was set up to evaluate the matter confirmed the continued viability of the European School Culham, but the mandate for the working group did not provide for an evaluation of the two language sections. The working group did not state that the two language sections were no longer viable and no measures of a social nature were included in the analysis and proposals submitted to the Board of Governors by the working group.

377

At the meeting of the Board of Governors on 28 January 2004, the European Commission proposed and voted in favour of the decision to phase out the two language sections. According to the complainants, the European Commission thereby failed to live up to its responsibility to promote good administration in the European Schools, especially as regards the transparency and reasoning of decisions, as required by the Charter of Fundamental Rights. The complainants allege that the Commission has failed to promote good administration in the European Schools, especially as regards the transparency and reasoning of decisions, as required by the Charter of Fundamental Rights.

THE INQUIRY The Commission's opinion In its opinion, the Commission makes, in summary, the following comments: The "Gaignage criteria" were adopted unanimously by the Board of Governors in 2000, to be applied when, for instance, closing language sections of the European Schools. These criteria lay down that a language section should be closed if, over a 2year period, there are 37 or fewer pupils in the entire primary section and 42 or fewer pupils in the entire secondary section, or if the number of pupils defined as category 1(2) is low. In connection herewith, the Commission recalls that according to Article 1 of the Convention defining the Statute of the European Schools, the primary purpose of the European Schools is to "educate together children of the staff of the European Communities". In the case of Culham, the Italian section had, for the year 2003/2004, 23 pupils in primary school, down from 33 pupils the year before, and 51 pupils in secondary school, compared with 50 pupils the year before. As regards the Dutch section, there were 32 pupils in primary school in 2003/2004 and 31 pupils the year before. At secondary school level, there were 33 pupils in 2003/2004 and 34 pupils the year before. None of the pupils attending the two language sections in question were children of EU staff. The European School Culham employed in 2003/2004 eight seconded Italian teachers and seven seconded Dutch teachers at an estimated cost of almost EUR 1.36 million per year. Annual fees are currently EUR 2 680 per primary pupil and EUR 3 657 per secondary pupil, whereas the total annual cost per pupil is almost EUR 16 500. In reply to the complainant's allegation, the Commission first points out that the European Schools are not bodies of the Union within the meaning of Article 51 of the Charter of Fundamental Rights. The fundamental rights referred to by the complainant are therefore ensured, in relation to decisions of the Board of Governors, by applicable provisions of national laws and international agreements. The Commission itself,

378

however, is bound by the principles of good administration laid down in the Charter in relation to its own actions. As regards the distribution of documents, the Commission states that it can only comment as a member of the Board and that, to its knowledge, the documents in question were distributed in the usual way. The date of arrival in the capitals was not an issue raised at the meeting of 28 January 2004. The Commission further points out that preparatory discussions in the Teaching or Administrative and Finance Committees are not a legal requirement. It has to be remembered that neither of these bodies is provided for in the Statute of the European Schools and that any discussions therefore are of a purely consultative nature. The complainants argue that the correct procedure was not followed because the closure of language sections was not specifically proposed by the group which was set up by the Board of Governors to assess the continued viability of the European School Culham. The Commission agrees that the advisory group did not specifically propose to close the two language sections. However, it did consider the possibility of this happening and it therefore discussed what measures could soften the impact of the phasing out of language sections and made various proposals to that end. The result of these discussions was presented to the Board of Governors at its meeting in Parma on 28-29 April 2004. The complainants are therefore wrong to argue that no such measures have been provided for. In terms of social measures for the children, it is foreseen that existing primary and secondary pupils will be able complete their cycle of studies. The only pupils likely to be affected in the short term are the eight pupils currently attending the fifth primary class in the Italian section and the eight pupils attending the fifth primary class in the Dutch section, who will not be able to continue secondary school in the same language section. The Commission again stresses that none of these pupils are the children of EU staff. The Commission considers that the school cannot be expected to keep a language section open in such circumstances and that doing so would constitute mismanagement of the Community budget. The European School Culham will, however, offer an alternative to the children concerned and will admit them into one of the other language sections provided this does not involve splitting any class. With the Commission's full support, the Board of Governors adopted a new budget for helping pupils who are not attending a language section corresponding to their mother tongue. The Commission further maintains that its request to the Board of Governors to apply the "Gaignage criteria" was done in a transparent way and was motivated by the need for good administration. The Commission would have failed its duties if it had not made the request, both in view of the content of the criteria themselves, the comments made by the European Parliament in the Bsch Report in 2002 and the costs involved, which are no longer justified.

379

The Commission also argues that its proposal to the Board of Governors on 28 January 2004 was not sudden or unannounced. The Director-General for Personnel and Administration sent a letter with the proposal to implement the "Gaignage criteria", giving detailed reasoning and providing figures, to the Secretary-General of the Board of Governors on 19 December 2003. The letter was copied to the President of the Board of Governors and was subsequently widely circulated. Prior to sending the letter, the Commission had consulted both the Central Staff Committee and the Director-General of the Joint Research Centre. The Commission also presented the letter to the representatives of "Interparents(3)" at the consultation meeting, which was held in Brussels on 15 January 2004 to prepare the Board of Governors meeting. On 16 January 2004, the Secretary-General of the Board of Governors wrote to the Delegations of the Member States affected by the proposal to ask if their governments would be prepared to finance the language sections in question. At the Board of Governors meeting of 28 January 2004, the heads of the Dutch, Belgian and Italian delegations to the Board of Governors had not yet received instructions from the relevant Ministers, but confirmed that answers would be given before the Board of Governors meeting in Parma in April 2004. The Commission also notes that the same complaint as the one presented to the Ombudsman has been presented to the Members of the Board of Governors. However, at its meeting in Parma in April 2004, the Board decided unanimously to confirm its decision to phase out the Italian and Dutch language sections at the European School Culham. The Ombudsman invited the complainants to submit observations on the Commission's opinion. No observations appear to have been submitted by the complainants.

THE DECISION 1. The alleged failure to promote good administration 1.1 The complaint concerns the European Commission's actions in relation to the phasing out of two language sections in the European School Culham. The complainants argue that the decision made by the Board of Governors of the European Schools on 28 January 2004, i.e. to phase out the Italian and Dutch language sections in the European School Culham, was not taken in conformity with the Board's rules of procedure. These rules say that documents shall arrive in national capitals ten working days before the meeting and that decisions of the Board of Governors should be prepared by a Teaching Committee and an Administrative and Financial Committee. The complainants also argue that the procedure for making a decision on the closure of a language section, as set out in point 3.3 of the "Gaignage document", was not followed because the mandate for the Gaignage working group did not provide for an evaluation of the two language sections. The working group did not state that the two language sections were no longer viable and no measures of a social nature were

380

included in the analysis and proposals submitted to the Board of Governors by the working group. The complainants allege that the Commission has failed to promote good administration in the European Schools, especially as regards the transparency and reasoning of decisions, as required by the Charter of Fundamental Rights. 1.2 The Commission argues that by making the proposal to close the two language sections in question, it applied the "Gaignage criteria" for when to close language sections of the European Schools. The Commission points out that none of the pupils affected by the decision are children of EU staff while the primary purpose of the European Schools is to educate children of the staff of the European Communities. The Commission considers that the school cannot be expected to keep a language section open when none of the pupils are children of EU staff and that doing so would constitute mismanagement of the Community budget. The Commission's request to the Board of Governors to apply the "Gaignage criteria" was motivated by the need for good administration based on the content of the criteria themselves, the comments made by the European Parliament in the Bsch Report in 2002 and the costs involved, which are no longer justified. As regards the complainants' arguments, the Commission states that the relevant documents were distributed the usual way and that the date of their arrival in the capitals was not an issue raised at the meeting of 28 January 2004. The Commission further contends that preparatory discussions in the Teaching or Administrative and Finance Committees are purely consultative and not a legal requirement. The Commission acknowledges that the Gaignage working group did not specifically propose to close the two language sections in question. The group did, however, consider the possibility of this happening and discussed what measures could soften the impact, making various proposals to that end. The Commission further argues that its proposal to the Board of Governors on 28 January 2004 was made in a transparent way and that it was not sudden or unannounced. Before the meeting on 28 January 2004, the matter was brought to the attention of the President and the Secretary-General of the Board of Governors. Also "Interparents" was informed. The Commission had furthermore consulted both the Central Staff Committee and the Director-General of the Joint Research Centre. 1.3 The Ombudsman has consistently taken the view that the European Schools are not a Community institution or body and are therefore not within the mandate of the European Ombudsman under Article 195 of the EC Treaty. The Ombudsman has considered, however, that the Commission has a certain responsibility for the European Schools' operation, since it is represented in their Board of Governors and contributes largely to their financing. The Ombudsman has also considered that the Commission has a general responsibility to promote good administration in the European Schools(4).

381

1.4 The Ombudsman understands the complainants to allege that by proposing and voting in favour of the phasing out of the two language sections in question, the Commission failed to promote good administration in the European Schools since the process leading up to the Board of Governors' decision lacked transparency and the decision itself lacked reasoning. The complainants have provided a number of arguments to support their allegation. 1.5 As regards the process leading up to the Board of Governors' decision concerning the two language sections, the Ombudsman notes that the Commission appears to have brought the proposal to the attention of the parties concerned. The Ombudsman has found nothing to suggest that, at the meeting on 28 January 2004, any of the national delegations objected to the consideration of the matter on the basis of not having received the documents on time, as provided for in Article 9 c) of the Rules of Procedure for the Board of Governors. The Ombudsman has carefully studied Article 11 of the Rules of Procedure for the Board of Governors in relation to the complainants' argument that decisions of the Board of Governors shall be prepared by a Teaching Committee and an Administrative and Financial Committee and considers that the Commission's view that such preparatory discussions are not a legal obligation appears reasonable. As regards the mandate of the Gaignage working group, the Ombudsman has not been provided with any evidence to show its extent. The Ombudsman acknowledges that the working group's report on Culham does not state that the two language sections are no longer viable. The Ombudsman notes, however, that the reason for this appears to be that the working group considered it too early to make a decision on the future number of language sections in the European School Culham. Nevertheless, the report contains a number of measures of a social nature to be adopted in the event of a phasing out of (a) language section(s). 1.6 As regards the alleged lack of reasoning, the Ombudsman notes that the Commission refers to the "Gaignage criteria", which lay down the prerequisites for, inter alia, the closing of language sections in the European Schools. The complainants do not appear to have questioned the applicability of these criteria to the case in question. The Ombudsman further notes the Commission's argument that to keep open and financially contribute to language sections without any of the pupils being children of EU staff would constitute mismanagement of the Community budget. The Ombudsman recalls in this regard that the Commission indeed represents the Communities' interests in the Board of Governors. It should be noted, however, that in doing so, the Commission is at the same time bound by the Charter of Fundamental Right and its Article 24(2), which states that in all actions relating to children, the child's best interests must be a primary consideration. The Ombudsman notes in this connection that measures appear to be planned in order to facilitate the continuing schooling of affected pupils. 1.7 In view of the above, the Ombudsman does not consider that his inquiry into the Commission's actions in relation to the Board of Governor's decision to phase out the two language sections in question has revealed any instance of maladministration.

382

2. A point of concern in the Commission's opinion 2.1 The Ombudsman recalls that during the course of some of his earlier inquiries(5), the Commission acknowledged that the principles laid down in the Charter of Fundamental Rights, and particularly the right to good administration (Article 41) and the rights of the child (in particular Article 24(2)), apply in full to the European Schools and are binding upon them. The Ombudsman welcomed this acknowledgement. 2.2 The Ombudsman notes, however, that the Commission, in its opinion on the present complaint, appears to argue that the Charter of Fundamental Rights does not apply to the European Schools, but that fundamental rights in relation to decisions of the Board of Governors are protected by national laws and international agreements. 2.3 As explained in 1.3 above, the Ombudsman has no direct power of investigation as regards the European Schools. The Ombudsman considers, however, that the Commission's acknowledgement of the Charter's binding force on the European Schools constitutes an important part of the Commission's responsibility for promoting good administration in these Schools. In order to clarify the Commission's stance and commitment to this matter, the Ombudsman considers that it would be useful if the Commission communicated to him the status of the reform measures referred to during his own-initiative inquiry OI/5/2003/IJH. According to the Commission, these reform measures would include the observance of the Charter of Fundamental Rights in all the European Schools. The Ombudsman will make a further remark to this effect below. 3. Conclusion On 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.

383

FURTHER REMARK The Ombudsman considers that the Commission's acknowledgement of the Charter's binding force on the European Schools constitutes an important part of the Commission's responsibility for promoting good administration in these Schools. In order to clarify the Commission's stance and commitment to this matter, the Ombudsman considers that it would be useful if the Commission communicated to him the status of the reform measures referred to during his own-initiative inquiry OI/5/2003/IJH. According to the Commission, these reform measures would include the observance of the Charter of Fundamental Rights in all the European Schools. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------The notions "Gaignage document", "Gaignage criteria" etc. appear to derive from the name of Mr Gaignage, who was the first president of the working group drafting the "Criteria for the setting up, closure or maintenance of European Schools", which were adopted in their final form by the Board of Governors in 2000.
(2) (1)

Children of the staff of the European Communities.

The organism which gathers the representatives of the Parents Associations of the twelve European schools. See the Ombudsman's decision in case 845/2002/IJH and his decision in owninitiative inquiry OI/5/2003/IJH, available at the Ombudsman's website: http://www.euro-ombudsman.eu.int. Case 845/2002/IJH and the Ombudsman's own-initiative inquiry OI/5/2003/IJH, available at the Ombudsman's website: http://www.euro-ombudsman.eu.int.
(5) (4)

(3)

384

Decision of the European Ombudsman on complaint 1273/2004/GG against the European Commission

Strasbourg, 29 June 2005

Dear Mr C., On 29 April 2004, you made a complaint to the European Ombudsman concerning the way in which the European Commission had handled a complaint that had been submitted to it in relation to the alleged breach of Regulation 685/95 by Spain and the Commission's handling of queries concerning the entry into force of certain provisions of Regulation 1954/2003. On 14 May 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 2 August 2004. I forwarded it to you on 11 August 2004 with an invitation to make observations, which you sent on 20 September 2004. On 15 December 2004, I wrote to the Commission in order to ask for further information in relation to your case. The Commission sent its reply on 9 March 2005. I forwarded it to you on 10 March 2005 with an invitation to make observations, which you sent on 12 April 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT Background The present complaint concerns the extent to which fishing was permitted prior to 1 August 2004 in the waters surrounding the Azores, a group of islands in the Atlantic ocean belonging to Portugal. The relevant zones up to 200 nautical miles from the baseline of the Azores (the "Azorean waters") are classified in accordance with the nomenclature of the International Council for the Exploration of the Sea (ICES) and of the Committee for Eastern Central Atlantic Fisheries (CECAF). The Azorean waters are in ICES area X and in CECAF area 34.2.0. The legislative background Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 no. L 261, p. 1) set up

385

certain rules for the monitoring of conservation and resource management measures in the fisheries sector. Since the accession of Spain and Portugal to the Communities in 1986, certain transitional provisions were applicable to fisheries. Article 353 of the Treaty concerning the Accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community (the "Act of Accession") provided that the transitional regime was to remain in force until 31 December 2002. An adjusted transitional regime was adopted in the form of Council Regulation (EC) No 1275/94 of 30 May 1994 on adjustments to the arrangements in the fisheries chapters of the Act of Accession of Spain and Portugal (OJ 1994 no. L 140, p. 1). This regulation laid down the institutional framework for the adoption of further measures by the Council. On this basis, the Council adopted Regulations 685/95 and 2027/95. These two regulations adopted in 1995 governed access to waters under Portuguese jurisdiction, including Azorean waters. They laid down, inter alia, a limitation regime concerning fishing effort which specifically excluded access of foreign vessels to Azorean waters. According to Article 8 of Council Regulation (EC) No 685/95 of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources (OJ 1995 No L 71, p. 5), the Member States were to take the measures referred to in Annex III (Community criteria for the evaluation of fishing effort) of the regulation before 1 January 1996. Annex III provided as follows: 2. Surface longlines and troll line tuna fishing The fishing activities of vessels flying the flag of Spain in continental waters under the sovereignty or jurisdiction of Portugal in ICES area IX and Cecaf and the fishing activities of vessels flying the flag of Portugal in continental waters under the sovereignty or jurisdiction of Spain in ICES areas VIII and IX and Cecaf are authorized in accordance with the Community provisions in force. 3. Tuna fishing The access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES area X and Cecaf and that of Portuguese vessels to island waters under the sovereignty or jurisdiction of Spain in Cecaf is excluded, except, where appropriate, in the case of vessels engaging in fishing activities which involve the use of traditional gear under a joint agreement between these two Member States.

386

Council Regulation (EC) No 2027/95 of 15 June 1995 establishing a system for the management of fishing effort relating to certain Community fishing areas and resources (OJ 1995 no L 199, p. 1) sets out, in its Annex I, the maximum annual fishing effort for each Member State and for each fishery. In Azorean waters, the fishing effort was entirely allocated to Portugal in respect of demersal and deep-water species using fixed gear. In addition, the Annex allocates a zero quota for fishing with towed gear in Azorean waters and thus prohibits the use of towed gear in Azorean waters. Articles 1 and 2 of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59) provide that the Common Fisheries Policy of the EU is to cover "conservation, management and exploitation of living aquatic resources" and that it shall "ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions". To achieve these objectives, Article 4 of the regulation empowers the Council to adopt measures governing access to waters and resources. These measures can target individual species or groups and can include measures "establishing targets", "limiting catches", "limiting fishing effort", "technical measures" and specific measures to reduce the impact of fishing activities on marine ecosystems and non-target species. Regulation 2371/2002 contains provisions (Articles 7 and 8) which empower the Commission and Member States respectively to adopt emergency measures in cases of serious threat to the marine ecosystem or fish stock. Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (OJ 1998 L 125, p. 1) prescribes minimum mesh sizes for towed nets and applies, inter alia, to Azorean waters. Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the Common Fisheries Policy (OJ 1993 L 261, p. 1) establishes a regime for the use of the so-called 'Vessel monitoring System' which obliges vessels to carry on board a functioning system allowing detection and identification of vessels. Regulation 1954/2003 Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 (OJ 2003 no. L 289, p. 1) effectively repealed the old system governing access to Azorean waters, as set out in Regulations 685/95 and 2027/95. According to Article 3 of Regulation 1954/2003, Member States have to assess and allocate the levels of fishing effort exerted by vessels equal to or more than 15 metres

387

in length in each of the ICES and CECAF zones. Article 4 of the Regulation contains special provisions for vessels that are less than 15 metres in length. Pursuant to Articles 7 and 8 of Regulation 1954/2003, Member States have to establish a list of fishing vessels flying their flag which are authorised to carry out their fishing activities in the relevant fisheries and must take the necessary measures to regulate the fishing effort by monitoring the activity of their fleet. Article 11 provides for the adoption of a Regulation (the Article 11 Regulation) fixing the maximum annual fishing effort for each Member State and for each fishery as defined in Article 3 of the Regulation. A proposal for such a regulation was to be submitted to the Council by the Commission by 29 February 2004. In case the Council failed to take a decision by 31 May 2004, the Commission was to adopt the regulation itself by 31 July 2004. According to Article 13 of the Regulation, Articles 19a(3), 19b, 19c, 19d and 19e(3) of Regulation (EEC) No 2847/93 were no longer to apply to (inter alia) the Azorean waters. Article 15 of Regulation 1954/2003 provided that Regulations 685/95 and 2027/95 were to be repealed with effect from the date of entry into force of the Article 11 Regulation or 1 August 2004, whichever was the earlier. Article 16 stipulated that Regulation 1954/2003 was to enter into force on the seventh day following that of its publication in the Official Journal of the European Union. Given that Regulation 1954/2003 was published in the OJ of 7 November 2003, it entered into force on 14 November 2003. Article 5 (1) of Regulation 1954/2003 provides as follows: In the waters up to 100 nautical miles from the baselines of the Azores, Madeira and the Canary Islands, the Member States concerned may restrict fishing to vessels registered in the ports of these islands, except for Community vessels that traditionally fish in those waters in so far as these do not exceed the fishing effort traditionally exerted. (). The issues in dispute in the present case The present case concerns the question as to when Regulation 1954/2003 became effective, that is to say from which date it repealed Regulations 685/95 and 2027/95. The Kingdom of Spain assumed that the relevant date was 14 November 2003. The complainant contended that, as foreseen in Article 15 of Regulation 1954/2003, the relevant regulations would only be repealed with effect from the date of entry into force of the Article 11 Regulation or 1 August 2004, whichever was the earlier. It was the position the Commission took in this matter and the information that it provided in this context that gave rise to the present complaint.

388

Legal challenges against Regulation 1954/2003 In Case C-36/04, the Kingdom of Spain asked the Court of Justice to declare Articles 3, 4 and 6 of Regulation 1954/2003 void. This case is pending before the Court(1). The Autonomous Region of the Azores applied to the Court of First Instance for the annulment of Articles 3, 5 (1), 11, 13(b) and 15 and of the Annex to Regulation 1954/2003 in so far as they adversely affect Azorean waters (Case T-37/04)(2). This case is pending before the Court of First Instance(3). In his complaint to the Ombudsman, the complainant stressed that neither of these cases concerned the two issues that were central to his present complaint. The relevant facts In January 2004, Spanish fishing vessels were detected in the zone between 100 and 200 miles off the Azores. In a fax sent to (undisclosed) recipients on 12 January 2004, the Spanish Ministry for Agriculture, Fishery and Foodstuffs pointed out that fishing for swordfish and related species was allowed in 2004 in the Azorean waters, with the exclusion of the waters up to 100 nautical miles from the Azores. On 21 January 2004, Spain submitted to the Council a paper entitled Application of Regulation (EC) No 1954/2003. In this paper, the Spanish authorities expressed the view that apart from the provisions on the management of fishing effort that still needed to be implemented, Regulation 1954/2003 was already applicable. They further stated that Spain considered it crucial to seek the opinion of the Councils Legal Service on this point and therefore asked for the matter to be put on the agenda of the Working Party on Internal and External Fisheries Policies on 29 January 2004. On 3 February 2004, the Commission published its proposal for a Council Regulation amending Regulation (EC) No 850/98 as regards the protection of deep-water coral reefs from the effects of trawling in certain areas of the Atlantic Ocean (COM(2004) 58 final). The Explanatory Memorandum for this proposal contains the following passage: Moreover, the Community fishing zone around the Azores, Madeira and Canary Islands contains several known or potential deep water habitats that have so far been preserved from trawling due to the special access regime defined in Council Regulation (EC) No 2027/95. As this regime will cease to apply in 2004, it is now important [to] guarantee a continuity of the protection of these areas as part of Community legislation. This text is repeated in recital 5 of the proposed regulation where a footnote is added to provide the reference to Regulation 2027/95 in the Official Journal. This reference

389

is completed by the phrase Regulation as amended by Regulation (EC) No 1954/2003 (OJ L 289, 7.11.2003, p.1). Also on 3 February 2004, the Commission published a press release (IP/04/153) to announce its proposal to the public. This press release contained the following statement: Bottom trawling is currently banned in the areas concerned under the rules governing access to the so-called western waters, established during the process of integration of Portugal and Spain into the Common Fisheries Policy. As these rules will end this year, restrictions are needed to ensure continued protection for these habitats. On 6 February 2004, a member of the Commissions Legal Service drew up a Note for the file concerning the entry into force of Articles 5 and 13 of Regulation 1954/2003. The author noted that these articles had set up a system that differed from the one that had applied under the previous legislation and that Article 16 provided that the Regulation was to enter into force on the seventh day after its publication. In these circumstances, the author of the note concluded that the rule lex posterior derogat legi priori was applicable and that Articles 5 and 13 of Regulation 1954/2003 had thus entered into force on 14 November 2003. In a press release published on 9 February 2004, the Spanish Ministry for Agriculture, Fishery and Foodstuffs arrived at the conclusion that on 14 November 2003, the zone between 100 and 200 nautical miles from the Azores had been liberalised. On 9 February 2004, the Regional Secretary in charge of Agriculture and Fishery of the Autonomous Region of the Azores submitted a complaint against Spain to the Commission in which he pointed out that Spanish fishing vessels had begun fishing in the Azorean waters. The Regional Secretary expressed the view that this activity was in breach of Regulations 685/95 and 2027/95 and presented a serious and imminent threat to living aquatic resources in Azorean waters. He therefore asked the Commission (1) to take urgent preventive measures under Regulation 2371/2002 and (2) to commence infringement proceedings against Spain under Article 226 of the EC Treaty. On 13 February 2004, a report appeared in the Spanish press according to which the Legal Service of the Commission had confirmed that Spanish boats were authorised to fish in the waters between 100 and 200 nautical miles off the coasts of the Azores. The report referred to the Spanish Ministry for Agriculture, Fishery and Foodstuffs as its source. On 16 February 2004, a further report appeared in the Spanish press. This report reproduced many of the points of the report of 13 February but also stated the following:

390

This was also confirmed by the Legal Service of the Commission, which stated that when the same aspect is ruled by two provisions, the most recent applies (i.e. the 2003 Regulation) and that as Article 5 of Regulation 1954/2003 is fully in force, in consequence, Spain can grant licences to fish in the waters around the Azores and Madeira between 100 and 200 miles. In a letter of 18 February 2004 addressed to Mr Fischler, the Member of the Commission in charge of fisheries, the complainant asked the Commission to clarify matters. He specifically requested the Commission to confirm that (having regard to Articles 5 and/or 15 of Regulation 1954/2003) it was not entitled to abrogate Council Regulations in total or in part, that until the courts declared otherwise, Articles 5 and 15 of Regulation 1954/2003 were fully in force and that Regulations 685/95 and 2027/95 remained in force until the entry into force of a further regulation or until 1 August 2004, at the latest. At a meeting of the Councils Working Party on Internal and External Fisheries Policies on 19 February 2004, the Commission confirmed that Articles 5 and 13 of Regulation 1954/2003 had entered into force on 14 November 2003. The "Speaking Note" distributed by the Commission representative reproduced the points that had been made in the Note for the file of 6 February 2004. In a letter of 5 March 2004 to the complainant, Mr Fischler put forward the same views. Mr Fischler stressed that there was therefore no need for any emergency measures. During oral questions in the European Parliament on 9 March 2004, Mr Fischler reiterated this view. He submitted that no emergency measures could be adopted regarding the presence of Spanish vessels outside the 100 nautical mile zone because these boats complied with the rules in force. Mr Fischler assured the complainant that the Commissions Legal Service had been consulted and that it shared this view. In his reply of 11 March 2004 to a written question by Mr Jos Ribeiro e Castro MEP, Mr Fischler confirmed this position. On 12 March 2004, Mr Fischler replied to the complainants letter of 18 February 2004. In this letter, Mr Fischler pointed out that Regulation 1954/2003 had been in force since 14 November 2003 and that this meant "that the special conditions for fishing in the waters around the Azores, Madeira and the Canary Islands are applicable from that date onwards." Mr Fischler also stressed that Article 15 of Regulation 1954/2003 clearly stated that Regulations 685/95 and 2027/95 are repealed with effect from either the date of entry into force of the Regulation mentioned in Article 11 of Regulation 1954/2003 or 1 August 2004, whichever is the earlier. On 16 March 2004, the Spanish Ministry for Agriculture, Fishery and Foodstuffs sent a fax to the Commissions Directorate-General (DG) Fisheries in which it informed

391

the Commission that a Spanish vessel which had been fishing in the zone between 100 and 200 nautical miles off the coast of the Azores had been detained by the authorities of the Azores. This fax was forwarded to the Portuguese authorities the same day by the Commission, with a request to provide an opinion. On 17 March 2004, the Commission forwarded to the Portuguese authorities a copy of the "Speaking Note" distributed at the meeting on 19 February 2004. In a letter of 17 March 2004, the complainant asked Mr Fischler to confirm that the restrictions contained in Regulations 685/95 and 2027/95 continued to apply in the waters of the Azores, until their repeal. On 25 March 2004, the Regional Secretary in charge of Agriculture and Fishery of the Autonomous Region of the Azores submitted the reply of the Autonomous Region of the Azores to the Commissions letters of 16/17 March 2004. In his reply of 13 April 2004 to the complainants letter of 17 March 2004, Mr Fischler pointed out that Regulations 685/95 and 2027/95 were still in force and had not been repealed yet. He submitted, however, that the new regime for the zone between 100 and 200 nautical miles was in force since 14 November 2003 and prevailed over the 1995 Regulations. The complaint to the Ombudsman In his complaint to the Ombudsman, the complainant alleged that the Commission was guilty of maladministration in relation to its handling of a complaint that had been submitted to it in relation to the alleged breach of Regulation 685/95 by the Spanish authorities, together with its handling of queries concerning the entry into force of certain provisions of Regulation 1954/2003. According to the complainant, this maladministration consisted of

error in law as to the date of repeal of management measures contrary to the clear wording of Regulation 1954/2003; reliance on an informal note prepared by a member of the Commissions Legal Service, and holding it out as if it were a formal opinion of the Legal Service; inconsistency, contrary to Article 10 of the European Code of Good Administrative Behaviour; abuse of power leading to failure to comply with Article 211 of the EC Treaty; absence of impartiality, in breach of Article 8 of the European Code of Good Administrative Behaviour; and

392

failure to notify the person concerned of the Commissions position whilst announcing that position publicly to third parties, contrary to Article 20 of the European Code of Good Administrative Behaviour.

In support of his allegations, the complainant submitted the following considerations: 1. Error in law The previous regime provided for mutual access restrictions between Spanish and Portuguese vessels as regards certain types of fishing (Regulation 685/95) and for a maximum fishing effort regime for demersal and deep-sea species, albeit one which limited fishing for these species to vessels of the relevant Member State (Regulation 2027/95). These provisions did not conflict with the access restriction in Article 5 of Regulation 1954/2003 but rather complemented it, leading to: (1) an access restriction up to 100 nautical miles for all species; (2) an access restriction between 100 and 200 nautical miles for tuna and tuna-like species and for surface longline and troll line fishing (Regulation 685/95), and (3) a maximum annual fishing effort (Regulation 2027/95) which prevented fishing for demersal and deep-sea species by vessels from Member States other than Portugal. The fishing effort limitation regime set down in Regulation 2027/95 could not be in conflict with Article 5, given that Article 11 provided for a similar fishing effort management regulation to be adopted for demersal species. The Commission had adopted a proposal for such a regulation (COM(2004) 166 final). If the legislator had wished to repeal Regulations 685/95 and 2027/95 as from 14 November 2003, Regulation 1954/2003 would have said so. It should also be noted that the revocation of legislative acts was an exceptional measure and therefore needed to be done explicitly. In his reply to written question P-0026/03(4), regarding the uncertainty as to the validity of Regulation 685/95 and Regulation 2027/95, Mr Fischler had stated the following: "Until rules laid down in the Regulations are amended or repealed by the Community legislator they continue to apply, subject to a decision by the Court of Justice on the conformity of such rules with general principles of Community law." As the above-mentioned document published on 3 February 2004 showed, the Commission itself had assumed until that day that the previous regime in the Azores was still in place.

393

2. Reliance on informal note The "Speaking note" and the "Note for the file" were not a formal opinion of the Commissions Legal Service. However, they had been held out and relied upon as if they were. 3. Inconsistency (As regards this issue, the complainant referred to the points he had made under 1 above.) 4. Abuse of power The Commission had deliberately tried to avoid answering the question as to when the former regime ceased to apply until the issue became no longer relevant (i.e., after 1 August 2004). It had deliberately manipulated its responses to letters and Parliamentary questions so as to be as ambiguous as possible. 5. Absence of impartiality The Commission had granted preferential treatment to the Spanish authorities whose complaint had been taken up the day on which it had been lodged (whereas the Azores had only received an acknowledgement of receipt regarding their complaint after having sent a reminder to the Commission). 6. Failure to notify the Azores of the decision In its letter of 9 February 2004, the Regional Government of the Azores had called upon the Commission to take preventive measures under Article 26 (3) of Regulation 2371/2002. To this date, the Azores had not received a reply to their letter of 9 February 2004. However, in the European Parliament's oral questions on 9 March 2004, Mr Fischler had told the complainant that "the presence of Spanish vessels in the waters of the Azores outside the 100 nautical mile zone...does not justify emergency measures." Article 20 of the European Code of Good Administrative Behaviour stated that decisions should be communicated in writing to the persons concerned (paragraph 1) and should not be communicated to third parties "until the person or persons concerned have been informed". This had not happened in the present case. Urgency The complainant considered that the issue required urgent attention, given that it would cease to be relevant on 1 August 2004. In his view, it was therefore imperative that it be dealt with properly as soon as possible.

394

The complainant therefore asked the Ombudsman to take steps to ensure that the complaint was dealt with as a matter of priority, in accordance with Article 10.2 of the Ombudsman's Implementing Provisions. Confidentiality aspects The complainant requested that his complaint should remain confidential and that his identity should not be disclosed. The complaint was therefore treated as confidential(16).

THE INQUIRY The Ombudsman's approach The complaint, that had been received by the Ombudsman on 4 May 2004, was forwarded to the Commission for an opinion on 14 May 2004. The Ombudsman noted that the complainant appeared to argue that the Commission's interpretation of the relevant legislation could result in a possible temporary gap as regards the protection of fish stocks between the date on which, according to the Commission, Regulations 685/95 and 2027/95 were effectively superseded by Regulation 1954/2003 (14 November 2003) and the date on which the Regulation to be adopted on the basis of Article 11 of Regulation 1954/2003 was to come into force (which could be as late as 1 August 2004). Seen from this perspective, time indeed appeared to be of the essence. In these circumstances, the Ombudsman decided to accept the complainants request to treat his complaint as being urgent and as meriting priority treatment. The Ombudsman therefore requested the Commission to submit its opinion as rapidly as possible and by 15 July 2004 at the latest. The Commission's opinion The Commission submitted the French original of its opinion to the Ombudsman on 28 July 2004. The translation into English (the language of the complaint) was forwarded to the Ombudsman on 2 August 2004. In its opinion, the Commission made the following comments: As regards the alleged error in law, the Commission had given its views on the entry into force of certain provisions of Regulation 1954/2003 (Articles 5 and 13), and of the implications of this, in a note that had been distributed to the Member States' Delegations in the Council's Working Party on Internal/External Fisheries Policy on 19 February 2004. The sixth and seventh paragraphs of this note set out the

395

Commission's interpretation of the relevant articles. Reference should also be had to the "Note for the file" of 6 February 2004. As regards the alleged reliance on an informal note, the note in question represented the official position of the Legal Service. It had been submitted to the Commission pursuant to internal Commission procedures which are used to obtain opinions from the Legal Service and which concern the question how these opinions are used. The points made by the complainant in this regard were therefore irrelevant. There was no evidence for any inconsistency regarding the Commission's position. The Commission had set out its position in the note of 19 February 2004. The statements made by the Commission before Regulation 1954/2003 came into force (in particular, the answer to written question P-0026/2003) were a reflection of the legal situation that existed before the Regulation was adopted. As regards the alleged abuse of power, the Commission had, in its "Speaking Note", adopted a clear position concerning the application of Article 5 of Regulation 1954/2003. All the positions it had adopted when replying to letters and when answering parliamentary questions had been based on this assessment. In so far as the alleged absence of impartiality was concerned, the information provided by the Spanish authorities regarding the vessel inspected near the Azores (accusation of illegal fishing, detention of the vessel in port, obligation to appear before the competent court the following day) suggested to the Commission that the situation should be clarified as soon as possible. There were two main reasons for this: first, the detention of a vessel constituted a situation which could not be prolonged for an excessive length of time, and second, at the time when the events occurred (March 2004), the Commission was already in the position to adopt a consolidated approach regarding the application of Regulation 1954/2003. However, the situation was very different as regards the complaint submitted by the Regional Government of the Azores. The Secretariat-General of the Commission had acknowledged receipt by letter of 17 February 2004. It was regretted that this letter did not reach the addressee until 15 March 2004. However, this point was beyond the Commission's control. The Government had asked the Commission to adopt preventive measures within the meaning of Article 26 (3) of Regulation 2371/2002 and to launch infringement proceedings against Spain under Article 226 of the EC Treaty. The complaint was currently being examined in line with the procedural rules that apply and by virtue of the investigative powers granted to the Commission. As regards the alleged failure to notify the Azores of its position, it could not be said at present that the Commission had no intention of taking measures. Given that the complaint was currently being examined, the comment that emergency measures were not justified did not mean that other possible courses of Community action could not be explored. There had been an exchange of correspondence on technical matters with the Spanish and the Portuguese authorities, since the Commission was not yet in

396

possession of all the facts. The latest deadline for the provision of information by the Spanish authorities was 30 July 2004, and the file would then undergo a final examination by the Commission's Legal Service. The authorities of the Azores would be informed as soon as the examination of the complaint was completed. The Commission concluded by expressing the view that no maladministration had therefore occurred. The complainant's observations In his observations, the complainant maintained his complaint and made the following further comments: As regards the alleged error in law, the Commission had not even attempted to address the legal arguments presented in paragraph 17 of the complaint or to explain its diametrically opposing assessments of the legal situation as described in paragraphs 18 to 23 of the complaint. The Commission's position, as set out in the "Speaking Note", was plainly wrong. The President of the Court of First Instance, in paragraph 143 of his order of 7 July 2004 in Case T-37/04 R had considered that Regulation 1954/2003 had the effect that the 1995 Regulations would be repealed on 1 August 2004 at the latest and added: "This appears to be the most reasonable interpretation given that Article 15 is a specific provision governing the repeal of the 1995 Regulations." In the explanatory memorandum accompanying its proposal for a ban on bottom trawling (COM(2004) 58 final) of 3 February 2004 the Commission had stated that the special access regime defined in Regulation 2027/95 "will cease to apply in 2004". The legislative process for this proposal was ongoing. On 16 August 2004, the Commission had therefore proposed an amendment to Community legislation in order to incorporate a temporary ban (COM(2004) 555 final). In its explanatory memorandum on this new proposal, the Commission stated that the special access regime defined in Regulation 2027/95 "has ceased to apply on 15 November 2003". This inconsistency was further evidence that the Commission's position constituted a manifest error in law. The fishing effort limitation in Regulation 2027/95 could not be in conflict with Article 5 of Regulation 1954/2003, given that Article 11 of that regulation provided for a similar fishing effort restriction regulation to be adopted. This new implementing regulation - Council Regulation (EC) No 1415/2004 of 19 July 2004 fixing the maximum annual fishing effort for certain fishing areas and fisheries (OJ 2004 L 258, p. 1) - performed the same role as Regulation 2027/95 and existed alongside Article 5 of Regulation 1954/2003. If there was no conflict between Regulation 1415/2004 and Article 5, then neither could there be any conflict between Regulation 2027/95 and Article 5. Therefore, even if the Commission's argument that in the event of a conflict the later provision prevailed were to be accepted, the fishing effort regime in

397

Regulation 2027/95 could not have ceased to produce legal effects until 1 August 2004. As regards the alleged reliance on an informal note, it was noted that the "Note for the file" represented the official position of the Commission In so far as the inconsistency of the Commission's position was concerned, the statement made by Mr Fischler in reply to written question P-0026/2003 was a clear, unequivocal statement of the Commission's understanding of Community law. In any event, the Commission had omitted to comment on the view it had expressed in its proposal of 3 February 2004. This proposal had been made nearly three months after the adoption of Regulation 1954/2003. As regards the alleged abuse of power, the Commission had deliberately tried to avoid answering the question as to when the former regime ceased to apply. Over a number of months, the Commission had simply reiterated the uncontroversial statement that Article 5 of Regulation 1954/2003 had entered into force on 14 November 2003 but failed to address the more fundamental question of what the implications of this were. It was not until Mr Fischler's letter of 13 April 2004 that it was expressly stated that the Commission's view was that the effect of the entry into force of Article 5 of Regulation 1954/2003 had been that Regulations 685/2003 and 2027/95 ceased to apply with effect from 14 November 2003. The comments made by the Commission in its opinion reinforced the view that there had been an abuse of power. In so far as the alleged absence of impartiality was concerned, the urgency of the measures requested by the Regional Government of the Azores must have been obvious to the Commission, given that the subject-matter of this complaint was only an issue until 1 August 2004. The Commission was aware of the serious issues that were involved, given that it was at the same time involved in the legislative process for the adoption of legislation aimed at protecting the marine environment and fish stocks in Azorean waters. The Commission had stated that at the time of the complaint lodged by Spain (in March 2004), it had already been in a position to adopt a consolidated approach. It could be reasonably inferred from this statement that the Commission meant that its being in a position to adopt a consolidated approach had been the result of its having formulated and distributed the "Speaking Note" of 19 February 2004. However, the "Speaking Note" reproduced in all material respects the text of the "Note for the file" of 6 February 2004. The Commission's legal position had therefore been formed on 6 February 2004. The complaint by the Regional Government of the Azores had been lodged on 9 February 2004. At the very latest, the Commission would have been in a position to deal with this complaint on 19 February 2004. If the Commission had acted impartially and without undue delay, it would have taken urgent steps to deal with the complaint of the Regional Government of the Azores and would have engaged in discussions with the latter. However, the Regional

398

Government of the Azores had not received any correspondence from the Commission in relation to its complaint. As regards the alleged failure to notify the Azores of its position, Mr Fischler had expressed the view, in his reply of 9 March 2004 to an oral question in the European Parliament, that the presence of Spanish vessels in Azorean waters outside the 100 nautical mile zone did not justify "any emergency measures". This statement was based on the view that the Commission did not consider that the Spanish vessels were acting illegally. It was therefore reasonable to infer that Mr Fischler had also been referring to the emergency measures requested by the Regional Government of the Azores. Further inquiries After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. On 15 December 2004, the Ombudsman therefore asked the Commission (1) to address the legal arguments presented in paragraphs 17 to 23 of this complaint regarding the legal error the Commission had allegedly committed, (2) to comment on the view it had expressed in its explanatory memorandum accompanying its proposal for a ban on bottom trawling (COM(2004) 58 final) of 3 February 2004, according to which the special access regime defined in Regulation 2027/95 "will cease to apply in 2004", (3) to comment on the complainant's argument that the urgency of the measures requested by the Regional Government of the Azores must have been obvious to the Commission, (4) to comment on the complainant's argument that it was reasonable to infer from Mr Fischler's reply of 9 March 2004 to an oral question in the European Parliament that Mr Fischler had also been referring to the emergency measures requested by the Regional Government of the Azores and (5) to forward a copy of the letter by which it acknowledged receipt of the complaint lodged by the Regional Government of the Azores and of any further letters it might have sent concerning this complaint. The Ombudsman further asked the Commission to provide more specific information as to how this complaint was handled. The Commission's reply In its reply, the Commission made the following comments: As regards the Ombudsman's first question, Article 5 of Regulation 1954/2003 laid down a fishing effort limitation regime that differed from the regime applying under Regulation 2027/95. Article 13 of Regulation 1954/2003 also modified the regime that had been laid down in the pertinent provisions of the control system. A change in regime had thus taken place and had become effective on 14 November 2003. The fact that the 1995 regulations had not been formally repealed in November 2003 had no effect on the application of the new provisions. Being different in nature, these new

399

provisions had replaced the previous regime as from the entry into force of Regulation 1954/2003. The press release concerning the publication of the proposal for a ban on bottom trawling had been prepared at the end of January 2004 and issued on 3 February 2004. The explanatory memorandum for this proposal had been drawn up at the beginning of November 2003 and sent for interdepartmental consultation on 7 November 2003. The opinion of the Commission's Legal Service had been received by the DirectorateGeneral for Fisheries on 21 November 2003. This opinion had not explicitly covered the phrase emphasised by the complainant. At the start of the procedure, the entry into force of Regulation 1954/2003 had not been at issue. This issue had only arisen when the Regional Government of the Azores submitted its complaint on 9 February 2004. The statement made by Mr Fischler in reply to written question P-0026/03 had been correct. However, the relevant consideration was that the provisions of Regulation 1954/2003 prevailed over the 1995 regime although the latter had not been formally repealed, in accordance with the interpretation set out in the "Speaking Note" of 19 February 2004. As regards the Ombudsman's second question, this point was addressed in the reply to the first question. As to the third question, the Commission had not considered that the fishing operations of non-Portuguese vessels in the zone between 100 and 200 nautical miles of the Azores following the entry into force on 14 November 2003 of Regulation 1954/2003 would justify taking the preventive measures sought by the Regional Government of the Azores. The protection of the Azores zone was effectively ensured by technical conservation measures or other measures under the Common Fisheries Policy, and not by restricting access to this zone. The Commission had therefore submitted a proposal for a Regulation in February 2004 specifically in order to address this situation. As regards the Ombudsman's fourth question, Mr Fischler had, in his statement of 9 February 2004, replied to the complainant's request and not to that of the Regional Government of the Azores. As to the fifth question, copies of all the correspondence the Commission had sent to the Portuguese and Spanish authorities in the process of examining the complaint were submitted to the Ombudsman. The complaint of the Regional Government of the Azores had sought preventive action by the Commission under Article 26 (3) of Regulation 2371/2002. The Commission's view was that the best response to any risks to the marine environment in the zone was to take measures under the Common Fisheries Policy (e.g., technical conservation measures or closed areas) and not to exclude all Community vessels apart from the Azores fleet. This approach was incompatible with taking preventive action intended solely to exclude Community vessels other than those under the Portuguese flag from the relevant zone. As regards

400

a possible breach of Community law by Spain, it followed from Article 5 of Regulation 1954/2003 that non-Portuguese vessels could operate in the relevant zone as from the date on which this provision had entered into force (14 November 2003). Consequently, the Spanish vessels identified by the Regional Government of the Azores had not infringed Regulation 1954/2003. This conclusion followed from the Commission's view on interpreting the relevant regulation that had been formulated in the "Speaking Note" of 19 February 2004. From the documents enclosed with the Commission's reply, the following information could be deduced: On 18 February 2004, the Commission asked the Regional Government of the Azores whether it agreed that its identity could be disclosed to the Spanish authorities. A reminder was sent on 4 March 2004. By letter of 12 March 2004, the Commission asked the Spanish authorities for its comments on the complaint. These comments were to be submitted within 30 days of receipt of this letter. On 15 April 2004, the Commission sent a reminder to the Spanish authorities. By letter of 4 June 2004, the Commission asked the Regional Government of the Azores for further information in relation to its complaint. On 9 July 2004, and on the basis of the reply to this request, the Commission asked the Spanish authorities for further information. This information was to be provided by 30 July 2004. On 4 August 2004, the Commission sent a reminder to the Spanish authorities. By letter of 12 October 2004, the Commission asked the Regional Government of the Azores for further information in relation to its complaint. The complainant's observations In his observations, the complainant maintained his complaint and made the following further comments: The Commission had failed to reply to the first question put to it by the Ombudsman. As to the issue of the entry into force of Regulation 1954/2003, this issue had already been raised by the paper submitted to the Council by Spain on 21 January 2004 and not only by the complaint of the Regional Government of the Azores of 9 February 2004. Besides, the "Note for the file" on which the "Speaking Note" had been based was dated 6 February 2004, three days before the said complaint. As to the urgency of the complaint of the Regional Government of the Azores, this complaint had only asked for the restrictions in Regulations 685/95 and 2027/95 to continue to be applied until their proper date of repeal. Moreover, if the Commission was so adamantly of the view that this complaint was unfounded, it was surprising that the Commission's consideration of the complaint appeared to be ongoing, with the most recent correspondence being dated 12 October 2004. If the complaint was clearly unfounded, the Commission should have closed the file immediately.

401

THE DECISION 1. The relevant elements of fact and law 1.1 The present complaint, which was lodged by a Member of the European Parliament, concerns the extent to which fishing was permitted prior to 1 August 2004 in the waters surrounding the Azores, a group of islands in the Atlantic ocean belonging to Portugal. The area concerned comprises the zones up to 200 nautical miles from the baseline of the Azores (the "Azorean waters"). 1.2 Given that the legislative background is complicated and that the complainant and the Commission have presented voluminous submissions in the context of the present inquiry, the Ombudsman considers it useful briefly to summarise the main elements of law and fact that are relevant for this case. 1.3 Since the accession of Portugal to the European Communities in 1986, certain transitional provisions were applicable to fisheries in the Azorean waters. Article 353 of the Treaty concerning the Accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community (the "Act of Accession") provided that this transitional regime was to remain in force until 31 December 2002. 1.4 The most important rules regarding fishing activities in Azorean waters were laid down in Council Regulation (EC) No 685/95 of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources(5) and in Council Regulation (EC) No 2027/95 of 15 June 1995 establishing a system for the management of fishing effort relating to certain Community fishing areas and resources(6) (the "1995 Regulations"). Regulation 685/95 excluded access by Spanish vessels fishing for tuna in Azorean waters. According to Regulation 2027/95, Portugal was the only Member State entitled to fish for deep-sea species in Azorean waters. In addition, Regulation 2027/95 established a zero quota for fishing with towed gear for demersal and deep-sea species in Azorean waters, thus effectively prohibiting the use of towed gear in Azorean waters(7). 1.5 Three further regulations need to be mentioned here: Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy(8), which set up certain rules for the monitoring of conservation and resource management measures in the fisheries sector; Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms(9), which prescribes minimum mesh sizes for towed nets, and Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy(10), which empowers the Council to adopt measures governing access to waters and resources.

402

1.6 Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95(11) effectively repealed the old system governing access to Azorean waters, as set out in Regulations 685/95 and 2027/95. Article 11 provides for the adoption of a Regulation (the Article 11 Regulation) fixing the maximum annual fishing effort for each Member State and for each fishery as defined in Article 3 of the Regulation. A proposal for such a regulation was to be submitted to the Council by the Commission by 29 February 2004. In case the Council should fail to take a decision by 31 May 2004, the Commission was to adopt the regulation itself by 31 July 2004. According to Article 13 of the Regulation, certain provisions of Regulation 2847/93 were no longer to apply to (inter alia) the Azorean waters. Article 15 of Regulation 1954/2003 provided that Regulations 685/95 and 2027/95 were to be repealed with effect from the date of entry into force of the Article 11 Regulation or 1 August 2004, whichever was the earlier. Article 16 stipulated that Regulation 1954/2003 was to enter into force on the seventh day following that of its publication in the Official Journal of the European Union. Given that Regulation 1954/2003 was published in the OJ of 7 November 2003, it entered into force on 14 November 2003. Article 5 (1) of Regulation 1954/2003 provides as follows: In the waters up to 100 nautical miles from the baselines of the Azores, Madeira and the Canary Islands, the Member States concerned may restrict fishing to vessels registered in the ports of these islands, except for Community vessels that traditionally fish in those waters in so far as these do not exceed the fishing effort traditionally exerted. (). 1.7 The present case concerns the question of the date from which Regulation 1954/2003 repealed Regulations 685/95 and 2027/95. 1.8 In January 2004, Spanish fishing vessels were detected in the zone between 100 and 200 miles off the Azores. On 21 January 2004, Spain submitted to the Council a paper entitled Application of Regulation (EC) No 1954/2003. In this paper, the Spanish authorities expressed the view that apart from the provisions on the management of fishing effort that still needed to be implemented, Regulation 1954/2003 was already applicable. 1.9 On 3 February 2004, the Commission published its proposal for a Council Regulation amending Regulation (EC) No 850/98 as regards the protection of deepwater coral reefs from the effects of trawling in certain areas of the Atlantic Ocean (COM(2004) 58 final). The Explanatory Memorandum for this proposal contains the following passage:

403

"Moreover, the Community fishing zone around the Azores, Madeira and Canary Islands contains several known or potential deep water habitats that have so far been preserved from trawling due to the special access regime defined in Council Regulation (EC) No 2027/95. As this regime will cease to apply in 2004, it is now important [to] guarantee a continuity of the protection of these areas as part of Community legislation." This text is repeated in recital 5 of the proposed regulation where a footnote is added to provide the reference to Regulation 2027/95 in the Official Journal. This reference is completed by the phrase Regulation as amended by Regulation (EC) No 1954/2003 (OJ L 289, 7.11.2003, p.1). 1.10 Also on 3 February 2004, the Commission published a press release (IP/04/153) to announce its proposal to the public. This press release contained the following statement: "Bottom trawling is currently banned in the areas concerned under the rules governing access to the so-called western waters, established during the process of integration of Portugal and Spain into the Common Fisheries Policy. As these rules will end this year, restrictions are needed to ensure continued protection for these habitats." 1.11 On 6 February 2004, a member of the Commissions Legal Service drew up a Note for the file concerning the entry into force of Articles 5 and 13 of Regulation 1954/2003. The author noted that these articles had set up a system that differed from the one that had applied under the previous legislation and that Article 16 provided that the Regulation was to enter into force on the seventh day after its publication. In these circumstances, the author of the note concluded that the rule lex posterior derogat legi priori was applicable and that Articles 5 and 13 of Regulation 1954/2003 had thus entered into force on 14 November 2003. 1.12 On 9 February 2004, the Regional Government of the Azores submitted a complaint against Spain to the Commission on the grounds that Spanish fishing vessels had begun fishing in Azorean waters. According to the Government, this activity was in breach of Regulations 685/95 and 2027/95 and presented a serious and imminent threat to living aquatic resources in Azorean waters. The Government therefore asked the Commission (1) to take urgent preventive measures under Regulation 2371/2002 and (2) to commence infringement proceedings against Spain under Article 226 of the EC Treaty. 1.13 In a letter of 18 February 2004 addressed to Mr Fischler, the Member of the Commission in charge of fisheries, the complainant asked the Commission to clarify matters. He specifically requested the Commission to confirm that (having regard to Articles 5 and/or 15 of Regulation 1954/2003) Regulations 685/95 and 2027/95 remained in force until the entry into force of a further regulation or until 1 August 2004, at the latest.

404

1.14 At a meeting of the Councils Working Party on Internal and External Fisheries Policies on 19 February 2004, the Commission confirmed that Articles 5 and 13 of Regulation 1954/2003 had entered into force on 14 November 2003. The "Speaking Note" distributed by the Commission representative reproduced the points that had been made in the Note for the file of 6 February 2004. 1.15 In a letter of 5 March 2004 to the complainant, Mr Fischler put forward the same views. Mr Fischler stressed that there was therefore no need for any emergency measures. During oral questions in the European Parliament on 9 March 2004, Mr Fischler reiterated this view. He submitted that no emergency measures could be adopted regarding the presence of Spanish vessels outside the 100 nautical mile zone because these boats complied with the rules in force. Mr Fischler assured the complainant that the Commissions Legal Service had been consulted and that it shared this view. 1.16 On 12 March 2004, Mr Fischler replied to the complainants letter of 18 February 2004. In this letter, Mr Fischler pointed out that Regulation 1954/2003 had been in force since 14 November 2003 and that this meant "that the special conditions for fishing in the waters around the Azores, Madeira and the Canary Islands are applicable from that date onwards." Mr Fischler also stressed that Article 15 of Regulation 1954/2003 clearly stated that Regulations 685/95 and 2027/95 are repealed with effect from either the date of entry into force of the Regulation mentioned in Article 11 of Regulation 1954/2003 or 1 August 2004, whichever is the earlier. 1.17 On 16 March 2004, the Spanish authorities sent a fax to the Commission informing it that a Spanish vessel which had been fishing in the zone between 100 and 200 nautical miles off the coast of the Azores had been detained by the authorities of the Azores. This fax was forwarded to the Portuguese authorities the same day by the Commission, with a request to provide an opinion. 1.18 In a letter of 17 March 2004, the complainant asked Mr Fischler to confirm that the restrictions contained in Regulations 685/95 and 2027/95 continued to apply in the waters of the Azores, until their repeal. 1.19 In his reply of 13 April 2004, Mr Fischler pointed out that Regulations 685/95 and 2027/95 were still in force and had not been repealed yet. He submitted, however, that the new regime for the zone between 100 and 200 nautical miles was in force since 14 November 2003 and prevailed over the 1995 Regulations. 2. The complaint and its handling by the Ombudsman 2.1 On 29 April 2004, the complainant turned to the Ombudsman. In his complaint, the complainant submitted that the issue required urgent attention, given that it would cease to be relevant on 1 August 2004. He therefore asked the Ombudsman to take

405

steps to ensure that the complaint was dealt with as a matter of priority, in accordance with Article 10.2 of the Ombudsman's Implementing Provisions(12). 2.2 On 14 May 2004, the Ombudsman forwarded the complaint to the Commission for its opinion. In his letter forwarding the complaint, the Ombudsman noted that the Commission's interpretation of the relevant legislation could result in a possible temporary gap as regards the protection of fish stocks between the date on which, according to the Commission, Regulations 685/95 and 2027/95 were effectively superseded by Regulation 1954/2003 (14 November 2003) and the date on which the Regulation to be adopted on the basis of Article 11 of Regulation 1954/2003 was to come into force (which could be as late as 1 August 2004). Seen from this perspective, time indeed appeared to be of the essence. The Ombudsman therefore informed the Commission that he had decided to accept the complainants request to treat his complaint as being urgent and as meriting priority treatment. He accordingly asked the Commission to submit its opinion as rapidly as possible and by 15 July 2004 at the latest. 2.3 The Commission submitted its opinion on 27 July 2004 in French. A translation into English (the language of the case) was forwarded to the Ombudsman on 2 August 2004. 2.4 It should be noted that the Ombudsman usually grants Community institutions and bodies a period of three months in order to provide their opinion on a complaint. In the present case, the Commission submitted its opinion in less than 2 and months after having received the complaint. In its cover letter accompanying the opinion, the Commission furthermore expressed its regrets at the slight delay that had occurred. The Ombudsman considers that the Commission has thus made a genuine effort to comply with his request to handle the complaint urgently. 2.5 In his complaint, the complainant made six allegations. However, two of them (according to which there was a legal error and an inconsistency as regards the Commission's position) appear to be closely linked. As a matter of fact, the complainant himself, in his complaint, referred to his comments on the first of these allegations when presenting the second one. The Ombudsman therefore considers that these two allegations should be examined together. 3. Alleged legal error and alleged inconsistency 3.1 The complainant alleged that the Commission had committed a legal error in holding that Regulations 685/95 and 2027/95 had effectively been repealed on 14 November 2003. According to the complainant, the regime set up by the 1995 Regulations did not conflict with the access restriction in Article 5 of Regulation 1954/2003 but rather complemented it. The complainant further argued that if the legislator had wished to repeal Regulations 685/95 and 2027/95 as from 14 November 2003, Regulation 1954/2003 would have said so. In this context, the complainant stressed that the revocation of legislative acts was an exceptional measure and

406

therefore needed to be done explicitly. The complainant pointed out that Mr Fischler had himself made a statement to this effect in his reply to written question P-0026/03. The complainant further argued that the Commission's position had been inconsistent, given that the documents the Commission had published on 3 February 2004 showed that the Commission itself had assumed until that day that the previous regime applicable to Azorean waters was still in place. 3.2 In its opinion, the Commission stressed that it had given its views on the entry into force of certain provisions of Regulation 1954/2003 (Articles 5 and 13), and of the implications of this, in a note that had been distributed to the Member States' Delegations in the Council's Working Party on Internal/External Fisheries Policy on 19 February 2004. The sixth and seventh paragraphs of this note set out the Commission's interpretation of the relevant articles. Reference should also be made to the "Note for the file" of 6 February 2004. The Commission further argued that there was no evidence for any inconsistency in its position. It stressed that it had set out its position in the note of 19 February 2004, whereas the statements it had made before Regulation 1954/2003 had come into force (in particular, the answer to written question P-0026/2003) had been a reflection of the legal situation that had existed before the Regulation was adopted. 3.3 In his observations, the complainant submitted that the Commission had not even attempted to address the legal arguments he had presented in his complaint. In the complainant's view, the Commission's position, as set out in the "Speaking Note", was plainly wrong. The complainant pointed out that the President of the Court of First Instance, in paragraph 143 of his order of 7 July 2004 in Case T-37/04 R, had considered that Regulation 1954/2003 had the effect that the 1995 Regulations would be repealed on 1 August 2004 at the latest and had added: "This appears to be the most reasonable interpretation given that Article 15 is a specific provision governing the repeal of the 1995 Regulations." The complainant further submitted that in the explanatory memorandum accompanying its proposal for a ban on bottom trawling (COM(2004) 58 final) of 3 February 2004, the Commission had stated that the special access regime defined in Regulation 2027/95 "will cease to apply in 2004". In so far as the inconsistency of the Commission's position was concerned, the complainant pointed out that the Commission had omitted to comment on the view it had expressed in its proposal of 3 February 2004. This proposal had been made nearly three months after the adoption of Regulation 1954/2003. 3.4 In its reply to a request for further information made by the Ombudsman, the Commission stressed that Article 5 of Regulation 1954/2003 laid down a fishing effort limitation regime that differed from the regime applying under Regulation 2027/95. Article 13 of Regulation 1954/2003 also modified the regime that had been laid down in the pertinent provisions of the control system. In the Commission's view, a change

407

in regime had thus taken place and had become effective on 14 November 2003. The Commission added that the fact that the 1995 Regulations had not been formally repealed in November 2003 had no effect on the application of the new provisions. Being different in nature, these new provisions had, according to the Commission, replaced the previous regime as from the entry into force of Regulation 1954/2003. As regards the press release concerning the publication of the proposal for a ban on bottom trawling, the Commission pointed out that it had been prepared at the end of January 2004 and issued on 3 February 2004. The Commission further explained that the explanatory memorandum for this proposal had been drawn up at the beginning of November 2003 and sent for interdepartmental consultation on 7 November 2003. The opinion of the Commission's Legal Service had been received by the DirectorateGeneral for Fisheries on 21 November 2003. The Commission submitted that this opinion had not explicitly covered the phrase emphasised by the complainant. According to the Commission, the issue of the entry into force of Regulation 1954/2003 had only arisen when the Regional Government of the Azores had submitted its complaint on 9 February 2004. The Commission further submitted that the statement made by Mr Fischler in reply to written question P-0026/03 had been correct. In its view, however, the relevant consideration was that the provisions of Regulation 1954/2003 prevailed over the 1995 regime although the latter had not been formally repealed, in accordance with the interpretation set out in the "Speaking Note" of 19 February 2004. 3.5 In his observations on this reply, the complainant submitted that the Commission had failed to reply to the question put to it by the Ombudsman. As to the issue of the entry into force of Regulation 1954/2003, the complainant stressed that this issue had already been raised by the paper submitted to the Council by Spain on 21 January 2004. Besides, the "Note for the file" on which the "Speaking Note" had been based was dated 6 February 2004, three days before the said complaint. 3.6 The Ombudsman considers it useful to recall at the outset that the present case does not concern the merits of Regulation 1954/2003, but the interpretation of this regulation by the Commission. It should be noted that Article 195 of the EC Treaty entrusts the European Ombudsman with the task of examining instances of maladministration. Complaints directed at the merits of Community legislation would therefore in any event not fall within the Ombudsman's mandate. The Ombudsman further considers it useful to recall that the European Court of Justice is the highest authority as regards the interpretation of Community law. Moreover, the Ombudsman has no power to give binding interpretations of Community law. However, Article 195 of the EC Treaty entrusts the Ombudsman with the mission of examining instances of maladministration in the activities of the Community institutions and bodies. In the Ombudsman's view, such maladministration can exist where a Community institution or body makes public

408

statements about the interpretation of Community law that are erroneous or inconsistent. 3.7 It is good administrative practice for the administration to avoid legal errors and inconsistencies in its public statements and to acknowledge and correct any errors that may occur. The Ombudsman notes that the Commission's interpretation of the relevant rules is based on the assumption that Article 5 of Regulation 1954/2003 was applicable as from 14 November 2003 and prevailed over Regulations 685/95 and 2027/95 on the basis of the rule lex posterior derogat legi priori. In the Ombudsman's view, the application of this legal maxim is justified if two conditions are fulfilled, namely (1) that the more recent act is incompatible with the older one and (2) that the issue of the relationship between the two acts has not been settled by the legislator in a different way. 3.8 As regards the first of these conditions, the Ombudsman considers that the Commission's view according to which the regime set up by Regulations 685/95 and 2027/95 is irreconcilable with the contents of Article 5 (1) of Regulation 1954/2003 does not appear to be unreasonable at first sight. On an admittedly simplistic interpretation, the 1995 Regulations basically excluded non-Portuguese vessels from fishing in Azorean waters, whereas Article 5 (1) of Regulation 1954/2003 limits this protection to the waters up to 100 nautical miles from the baseline of the Azores. It is undisputed that this means that such protection should no longer be available as regards the remainder of Azorean waters, i.e., the waters between 100 and 200 nautical miles, pursuant to Article 5 (1) of Regulation 1954/2003. If Regulations 685/95 and 2027/95 continued to be applicable even after 14 November 2003, the date of the entry into force of Regulation 1954/2003 and of its Article 5 (1), the opening up of the relevant part of Azorean waters (between 100 and 200 nautical miles) that this provision intended could hardly have been achieved with immediate effect. 3.9 It should however be noted that the lex posterior rule, as a rule of interpretation, can only be applied where the legislator has not himself settled the issue of the relationship between two acts of legislation. 3.10 Article 15 ("Repeal") of Regulation 1954/2003 is worded as follows: "1. Regulations (EC) No 685/95 and (EC) No 2027/95 shall be repealed with effect from: (a) the date of entry into force of the Regulation referred to in Article 11 (2) or (3); (b) 1 August 2004, whichever is the earlier. 2. (...)"

409

3.11 The Ombudsman notes that Regulation 1954/2003 thus contains an explicit provision concerning the date on which the repeal of the 1995 Regulations was to take effect. It is further clear that this date was not 14 November 2003, as the Commission argued, but a subsequent date that could be as late as 1 August 2004(13). The Ombudsman considers that the most logical interpretation of this provision is that the legislator intended that the 1995 Regulations should not be repealed with immediate effect but only after the "Article 11 Regulation" had been adopted or after a period sufficient for its adoption had passed, a period the end of which the legislator fixed at 1 August 2004. 3.12 The Ombudsman considers that this interpretation is confirmed by Article 14 of Regulation 1954/2003 which laid down certain amendments to Regulation 2847/93. Both from the wording of this provision ("...is hereby amended") and the structure of the Regulation, it emerges that these amendments were to take effect with the entry into force of Regulation 1954/2003. In the Ombudsman's view, the fact that Article 15 of Regulation 1954/2003 established a different date as regards the repeal of Regulations 685/95 and 2027/95 must therefore be interpreted as a deliberate choice of the legislator. 3.13 The Ombudsman furthermore considers that this interpretation is also consistent with the purpose that Article 15 of Regulation 1954/2003 appears to have served. Recital 4 of Regulation 1954/2003 states that a new fishing effort management regime needed to be established "[i]n order to ensure that there is no increase in the overall levels of existing fishing effort". According to Recital 12, Regulations 685/95 and 2027/95 should be repealed "in order to ensure legal certainty, to avoid alterations in the current balance in the areas and resources involved and to guarantee that the fishing effort deployed is in balance with available sources". It is difficult to see how these aims could properly be achieved on the basis of the interpretation defended by the Commission. It should be recalled that the "Article 11 Regulation" fixing the maximum annual fishing effort for each Member State and for each area and fishery was only adopted in July 2004. It should further be recalled that the regime established by Regulations 685/95 and 2027/95 prohibited the use of towed gear in Azorean waters. On 3 February 2004, the Commission published its proposal for a Council Regulation amending Regulation (EC) No 850/98 as regards the protection of deep-water coral reefs from the effects of trawling in certain areas of the Atlantic Ocean (COM(2004) 58 final). In this proposal, the Commission referred to the potentially damaging effects of trawling and submitted that a regulation should be adopted prohibiting the use of this fishing method in certain areas. In its proposal, the Commission explicitly referred to water habitats in Azorean waters as areas that needed to be protected. It should further be noted that on 16 August 2004, the Commission submitted a further proposal for the adoption of such a ban(14). In this proposal, the Commission submitted that the matter was urgent, that the European Parliament had not yet dealt with the proposal it had submitted in February 2004 and that the Council should therefore take the necessary measures itself(15). If the Commission's interpretation of Regulation 1954/2003 were correct, the

410

ban on trawling in Azorean waters was lifted with effect from 14 November 2003, only to be reintroduced nearly a year later and on the basis of two proposals made by the Commission in February 2004 and in July 2004. The Ombudsman considers that there is nothing in Regulation 1954/2003 to suggest that this is what the legislator intended by introducing Article 5 (1) in the said regulation. 3.14 Finally, the Ombudsman notes that the Commission itself, in its Explanatory Memorandum for the proposal that it submitted on 3 February 2004 (see point 3.13 above), confirmed that Regulations 685/95 and 2027/95 had not yet been abolished. In this text, the Commission pointed out that the existing regime had preserved Azorean waters from trawling, that "this regime will cease to apply in 2004" and that "it is now important [to] guarantee a continuity of the protection of these areas as part of Community legislation". 3.15 In these circumstances, the Ombudsman takes the view that the interpretation of Articles 5 (1) and 15 of Regulation 1954/2003 that the Commission defended in its statements was erroneous. 3.16 It should be noted that the Explanatory Memorandum for the proposal submitted on 3 February 2004 was based on the (correct) assumption that Regulations 685/95 and 2027/95 would only cease to apply "in 2004". However, the Commission subsequently took the view that these Regulations had already been repealed with effect from 14 November 2003. The Ombudsman considers that the explanations submitted by the Commission as regards this divergence are not convincing. Regardless of whether the relevant statement in the text of 3 February 2004 was or was not submitted to the Legal Service of the Commission previously, the fact remains that the Commission publicly let it be understood that it assumed that the 1995 Regulations had not yet been repealed. This position was made public nearly three months after the adoption of Regulation 1954/2003, which is furthermore referred to in a footnote of the proposed regulation. In these circumstances, the Ombudsman considers that the position adopted by the Commission was inconsistent with the position in the Explanatory Memorandum of 3 February 2004. 3.17 The Ombudsman considers that this legal error and this inconsistency constitute maladministration. A critical remark will be made in this context. 4. Allegedly illegal reliance on an informal note 4.1 The complainant submitted that the "Speaking note" and the "Note for the file" were not a formal opinion of the Commissions Legal Service. He criticised the fact that they had nevertheless been held out and relied upon as if they were. 4.2 In its opinion, the Commission stressed that the note in question represented the official position of the Legal Service and that it had been submitted to the

411

Commission pursuant to internal Commission procedures which were used to obtain opinions from the Legal Service and which concern the question how these opinions are used. 4.3 In his observations, the complainant stated that he took note of the fact that "Note for the file" represented the official position of the Commission. 4.4 In view of the above, the Ombudsman considers that the complainant has not established his allegation that the "Speaking note" and the "Note for the file" were not a formal opinion of the Commissions Legal Service. No maladministration is thus found as regards this aspect of the complaint. 5. Alleged abuse of power 5.1 The complainant alleged that the Commission had deliberately tried to avoid answering the question as to when the former regime ceased to apply until the issue became no longer relevant (i.e., after 1 August 2004). In the complainant's view, the Commission had deliberately manipulated its responses to letters and parliamentary questions so as to be as ambiguous as possible. 5.2 In its opinion, the Commission submitted that it had adopted a clear position as regards the application of Article 5 of Regulation 1954/2003 in its "Speaking Note". According to the Commission, all the positions it had adopted when replying to letters and when answering parliamentary questions had been based on this assessment. 5.3 In his observations, the complainant took the view that the Commission had deliberately tried to avoid answering the question as to when the former regime ceased to apply. According to the complainant, the Commission had, over a number of months, simply reiterated the uncontroversial statement that Article 5 of Regulation 1954/2003 had entered into force on 14 November 2003 but failed to address the more fundamental question of what the implications of this were. In the complainant's view, it had not been until Mr Fischler's letter of 13 April 2004 that it had expressly stated that the Commission's view was that the effect of the entry into force of Article 5 of Regulation 1954/2003 had been that Regulations 685/2003 and 2027/95 had ceased to apply with effect from 14 November 2003. 5.4 In its "Speaking Note" of 19 February 2004, the Commission stated that Regulation 1954/2003 had entered into force on 14 November 2003. It then noted that certain doubts as to the applicability, as from that date, of Articles 5 and 13 of the regulation had been raised with reference to Article 15. The Commission submitted that this provision did not affect the entry into force of Regulation 1954/2003, pointing to the lex posterior rule, and continued as follows: "Tel est le cas en ce qui concerne l'article 5 du rglement n o 1954/2003. Cet article donne une exclusivit moins tendue aux navires espagnoles et portugais que le rgime prcdent formellement pas encore abrog. Dans ce cas, c'est la rgle postrieure, donc le rglement n o 1954/2003 qui prvaut." [This is the case as regards Article 5 of

412

Regulation 1954/2003. This provision gives Spanish and Portuguese vessels less extensive exclusivity than the preceding scheme that has not yet formally been repealed. In this case, it is the later rule, i.e., Regulation 1954/2003, which prevails.] 5.5 The Ombudsman considers that it would have been useful if the Commission had from the very beginning clarified that this meant that, in its view, the restrictions on access to Azorean waters (as regards the zone between 100 and 200 nautical miles) that had been laid down in Regulations 685/95 and 2027/95 "no longer apply and have been replaced by the provisions of Article 5 of Council Regulation (EC) 1954/2003" (as Mr Fischler stated in his letter to the complainant of 13 April 2004). The Ombudsman considers, however, that it was not impossible to deduce from the "Speaking Note" that this was indeed the Commission's position. In the Ombudsman's view, there is furthermore not enough evidence to prove that the Commission had deliberately tried to avoid the issue or that it had deliberately manipulated its responses to letters and parliamentary questions so as to be as ambiguous as possible. 5.6 The Ombudsman therefore finds no maladministration as regards this aspect of the complaint. 6. Alleged absence of impartiality 6.1 The complainant alleged that the Commission had granted preferential treatment to the Spanish authorities whose complaint had been taken up the day on which it had been lodged (whereas the Azores had only received an acknowledgement of receipt regarding their complaint after having sent a reminder to the Commission). 6.2 In its opinion, the Commission submitted that the information provided by the Spanish authorities regarding the vessel inspected near the Azores (charge of illegal fishing, detention of the vessel in port, obligation to appear before the competent court the following day) had suggested to the Commission that the situation should be clarified as soon as possible. According to the Commission, there had been two main reasons for this: first, the detention of a vessel constituted a situation which could not be prolonged for an excessive length of time, and second, at the time when the events had occurred (March 2004), the Commission was already in a position to adopt a consolidated approach regarding the application of Regulation 1954/2003. The Commission submitted that the situation had been very different as regards the complaint submitted by the Regional Government of the Azores. 6.3 In his observations, the complainant submitted that the urgency of the measures requested by the Regional Government of the Azores must have been obvious to the Commission, given that the subject-matter of this complaint was only an issue until 1 August 2004. The complainant further argued that the "Speaking Note" reproduced in all material respects the text of the "Note for the file" of 6 February 2004. In his view, the Commission's legal position had therefore been formed on 6 February 2004. However, the complaint by the Regional Government of the Azores had been lodged

413

on 9 February 2004. In the complainant's view, the Commission would thus have been in a position to deal with this complaint on 19 February 2004 at the very latest. 6.4 In its reply to a request for further information made by the Ombudsman, the Commission stressed that it had not considered that the fishing operations of nonPortuguese vessels in the zone between 100 and 200 nautical miles of Azorean waters following the entry into force of Regulation 1954/2003 on 14 November 2003 would justify taking the preventive measures sought by the Regional Government of the Azores. In its view, the protection of the Azores zone was effectively ensured by technical conservation measures or other measures under the Common Fisheries Policy, and not by restricting access to this zone. The Commission noted that it had therefore submitted a proposal for a Regulation in February 2004 specifically in order to address this situation. It added that Mr Fischler had, in his statement of 9 February 2004, replied to the complainant's request and not to that of the Regional Government of the Azores. 6.5 In his observations, the complainant pointed out that the complaint of the Regional Government of the Azores had only asked for the restrictions in Regulations 685/95 and 2027/95 to continue to be applied until their proper date of repeal. The complainant further submitted that if the Commission was so adamantly of the view that this complaint was unfounded, it was surprising that its consideration of the complaint appeared to be ongoing. If the complaint was clearly unfounded, the Commission should have closed the file immediately. 6.6 The Ombudsman notes that the complainant argued that the Commission had granted preferential treatment to the letter submitted by the Spanish authorities as compared to the complaint of the Regional Government of the Azores. However, the only concrete information as to the handling of the letter of the Spanish authorities that was submitted to the Ombudsman concerns the fact that it appears to have been sent to the Portuguese authorities for its comments on the very day it was received by the Commission. It is thus in relation to this aspect that the complainant's submission needs to be assessed. 6.7 The Ombudsman notes that it emerges from the documents submitted to him by the Commission that on 18 February 2004, the Commission asked the Regional Government of the Azores whether it agreed that its identity could be disclosed to the Spanish authorities, that a reminder was sent on 4 March 2004 and that by letter of 12 March 2004, the Commission asked the Spanish authorities for their comments on the complaint (which were to be submitted within 30 days of receipt of this letter). It should further be noted that the complainant did not challenge the fact that the Commission considered it necessary to ask the Regional Government of the Azores for permission to disclose its identity before forwarding this complaint to the Spanish authorities. In view of these facts, the Ombudsman considers that the complainant has not substantiated his view that the Commission had awarded preferential treatment to the letter of the Spanish authorities.

414

6.8 No maladministration is thus found as regards this aspect of the case. 6.9 In his observations, the complainant submitted that the urgency of the measures requested by the Regional Government of the Azores must have been obvious to the Commission. The complainant thus seemed to argue that the Commission did not treat this complaint as urgently as it ought to have done. 6.10 The Ombudsman considers that it emerges from the Commission's submissions in this case that the Commission was of the view that the complaint of the Regional Government of the Azores was unfounded. It is therefore not obvious why the examination of this complaint appeared to be still pending at the time when the Commission replied, on 9 March 2005, to the Ombudsman's request for further information in this case. It should however be noted that the question as to whether the Commission had handled the complaint by the Regional Government of the Azores properly is an issue that was not as such raised in the original complaint and that was therefore not submitted to the Commission for its opinion. The Ombudsman considers that extending the scope of his inquiry to this further issue would delay his decision on the original complaint and that this would not be in the complainant's interest. He therefore takes the view that this further issue should not be taken up for inquiry in the present case. The complainant remains however free to submit a new complaint to the Ombudsman on this subject. 7. Alleged failure to notify the Azores 7.1 The complainant alleged that the Regional Government of the Azores had still not received a reply to their letter of 9 February 2004. He further noted that, on 9 March 2004, Mr Fischler had told him in the European Parliament that the presence of Spanish vessels in the waters of the Azores outside the 100 nautical mile zone did not justify emergency measures. The complainant pointed out that Article 20 of the European Code of Good Administrative Behaviour stated that decisions should be communicated in writing to the persons concerned and should not be communicated to third parties "until the person or persons concerned have been informed". According to the complainant, this had not happened in the present case. 7.2 In its opinion, the Commission submitted that the complaint was currently being examined. According to the Commission, there had been an exchange of correspondence with the Spanish and the Portuguese authorities, since it had not yet been in possession of all the facts. The latest deadline for the provision of information by the Spanish authorities was 30 July 2004, and the file would then undergo a final examination by the Commission's Legal Service. The Commission added that the authorities of the Azores would be informed as soon as the examination of the complaint was completed. 7.3 In his observations, the complainant submitted the view that Mr Fischler's statement, in his reply of 9 March 2004 to an oral question in the European Parliament, that the presence of Spanish vessels in Azorean waters outside the 100

415

nautical mile zone did not justify "any emergency measures", could reasonably be understood as also referring to the emergency measures requested by the Regional Government of the Azores. 7.4 In reply to a request for further information made by the Ombudsman, the Commission submitted copies of the letters it had sent out in the context of its examination of the complaint submitted by the Regional Government of the Azores. 7.5 The complainant did not submit specific observations as regards these documents. 7.6 The Ombudsman considers that it emerges from the documents submitted by the Commission that the latter was actively pursuing its examination of the complaint submitted by the Regional Government of the Azores and that in the course of this examination, it addressed several letters to the latter (in February 2004, in March 2004, in June 2004 and in October 2004). 7.7 In view of the above, the Ombudsman considers that the complainant's allegation according to which the Regional Government of the Azores had not received a reply to their letter of 9 February 2004 is not confirmed by the information that was submitted to him. The Ombudsman further notes that the Commission has declared that the authorities of the Azores would be informed as soon as the examination of the complaint was completed. 7.8 In these circumstances, no maladministration is found as regards this aspect of the complaint. 8. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: It is good administrative practice for the administration to avoid legal errors and inconsistencies in its public statements and to acknowledge and correct any error that may occur. Taking into account the wording, the structure and the purpose of the relevant rules in Regulation 1954/2003, the Ombudsman considers that the Commission's interpretation as to the date on which Article 5 (1) of this regulation became effective was erroneous. Furthermore, the position that the Commission adopted was inconsistent with a position it had taken in its Explanatory Memorandum concerning another draft regulation published on 3 February 2004. This legal error and inconsistency constitute maladministration. Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

416

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

P. Nikiforos DIAMANDOUROS ------------------------(1)

A summary of the action was published in OJ 2004 no. C 71, p. 15. Cf. the summary published in OJ 2004 no. C 94, p. 47.

(2)

(3)

An application for interim measures (Case T-37/04 R) was rejected by an order of the President of the Court of First Instance of 7 July 2004. OJ 2003 C 222 E, p. 138. OJ 1995 L 71, p. 5. OJ 1995 L 199, p. 1.

(4)

(5)

(6)

Cf. paragraphs 5 to 7 of the Order of the President of the Court of First Instance of 7 July 2004 in Case T-37/04 R).
(8)

(7)

OJ 1993 L 261, p. 1. OJ 1998 L 125, p. 1. OJ 2002 L 358, p. 59. OJ 2003 L 289, p. 1. Available on the Ombudsman's website (http://www.euro-ombudsman.eu.int).

(9)

(10)

(11)

(12)

In the end, the "Article 11 Regulation" was adopted on 19 July 2004 (Council Regulation (EC) No 1415/2004 of 19 July 2004 fixing the maximum annual fishing effort for certain fishing areas and fisheries, OJ 2004 L 258, p. 1). This regulation entered into force on the 20th day after its publication in the OJ (which occurred on 5 August 2004). Proposal for a Council Regulation amending Regulation (EC) No 2287/2003 as concerns the number of days at sea for vessels fishing for haddock in the North Sea and the use of bottom trawls in waters around the Azores, the Canary Islands and Madeira (COM/2004/0555 final).
(14)

(13)

417

(15)

The Council adopted the requested measure in October 2004 (Council Regulation (EC) No 1811/2004 of 18 October 2004, OJ 2004 L 319, p. 1).

After having received the Ombudsman's decision in this case, the complainant informed the Ombudsman's Office that he no longer insisted on his complaint being dealt with confidentially.

(16)

418

Decision of the European Ombudsman on complaint 1298/2004/PB against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 18 January 2005

Dear Mr X., On 16 January 2004, you sent me a complaint concerning the Commission's handling of an infringement complaint [ complaint 3 ]. I understood your complaint to be against the Commission's substantive decision in the matter, and I therefore rejected it because I had already decided on that matter in my decision on [complaint 2]. In a telephone conversation on 29 April 2004, you informed my services that you were also not satisfied with the Commissions correspondence relating to your infringement complaint. You identified the allegations in your letter of 16 January 2004 which you wanted me to investigate. You also stated that you would send the Ombudsman a copy of a letter from the Commission, which you did, on that same day. On that same date, I registered the present complaint. On 7 May 2004, my services telephoned the Commission regarding one aspect of your complaint. On 24 May 2004, I received a copy of a letter sent to you by the Commission. On 2 June 2004, I opened my inquiry into your complaint by letter to the President of the European Commission. The Commission sent its opinion on 31 August 2004. I forwarded it to you with an invitation to make observations, which you sent on 27 September 2004. You sent an email on 30 November 2004, making inquiries about my response to your observations. On 8 December 2004 I replied to your email, informing you that you would receive my findings on your complaint than by the end of January 2005 at the latest. I am writing now to let you know the results of the inquiries that have been made. To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European
419

Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

THE COMPLAINT Background On 14 April 1999, the chairman of the European Parliament's Committee on Petitions transmitted a petition to the Ombudsman, suggesting that it be dealt with as a complaint against the European Commission. The petitioner, the complainant in the present case, considered that the Commission had failed in its duty to ensure that a Community directive was properly applied in the United Kingdom. The directive was the Non-Life Insurance Directive (EC Directive 73/239/EEC(1)) the allegedly improper implementation of which was by some believed to have led to financial losses for Lloyd's underwriters (the so-called Names). The case was registered as [ complaint 1 ], and the complainant was subsequently informed that the complaint was inadmissible because no previous administrative approaches had been made. On 16 January 2004, the complainant submitted a new complaint to the Ombudsman [ complaint 3 ]. After a careful examination of that complaint, it appeared that the allegation against the European Commission concerned the United Kingdom's alleged breaches of Directive 73/239/EEC in the period before 2000. That issue had already been considered by the Ombudsman in his decision on [ complaint 2 ] in 2003, in which he concluded that : "the Commission is entitled to focus its Article 226 investigation on whether there is an infringement of Community law following the entry into force of the [ United Kingdom ] Financial Services and Markets Act 2000. The Ombudsman therefore finds no maladministration in relation to this aspect of the complaint." As it appeared that the complainant, in his complaint of 16 January 2004, wanted a review of the Commission's position on whether the United Kingdom had acted in breach of Community law before 2000, the complaint was rejected. The Ombudsman also noted in his reply to the complainant that he appeared to express dissatisfaction with the way in which the Commission had corresponded with him. However, the Ombudsman did not find that those remarks were precise enough to be taken up for inquiry as specific allegations. The Ombudsman informed the complainant accordingly, stating that he was free to submit precise allegations regarding the correspondence between himself and the Commission.

420

The present complaint In a telephone conversation on 29 April 2004, the complainant informed the Ombudsman's services that he was not satisfied with the Commissions correspondence relating to his infringement complaint. He identified the points in his complaint of 16 January 2004 (cf. above) which he wanted the Ombudsman to investigate. They were: (i) Failure to supply an interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State; Unsatisfactory and questionable explanations for the failure to reply to the complainants letter of 29 May 2003 to Mr T. (a Commission official); Unsatisfactory or missing replies to three questions addressed by the complainant to Mr T. in the same letter; Failure to provide information as to an established procedure in the United Kingdom which enables a citizen to obtain compensation for loss and/or damage caused by the infringement of Community law.

(ii)

(iii)

(iv)

Points (i), (ii) and (iii) were mentioned on the fourth page of the complainants letter of 16 January 2004. They related to the letter addressed to the complainant by the Commission (signed by Mr Th., another Commission official) on 10 December 2003. Point (iv) was mentioned on the fifth page of the complainants letter of 16 January 2004. The complainant explained to the Ombudsman's services that this point related to a different letter signed by Mr Th. The letter in question was dated 3 May 2002, bore the reference VM/430/2002 and was addressed to another of the Lloyds Names. The complainant stated that he would fax a copy of the letter to the Ombudsman. The fax was received on 29 April 2004. The present complaint was registered on that basis and dated 29 April 2004. On 7 May 2004, the Ombudsman's services telephoned the Commission regarding the complainant's first allegation referred to above. The relevant Commission official stated that he would look into the matter. He subsequently informed the Ombudsman's services that the interpretative communication had not yet been published. He would send a letter to the complainant giving him this information. On 24 May 2004, the Ombudsman received a copy of the Commission's letter to the complainant, dated 13 May 2004. The letter explained that the communication had not yet been prepared by the Secretariat-General due to its heavy workload. The first allegation therefore appeared to have been dealt with, and the Ombudsman accordingly decided to take up for inquiry only allegations (ii), (iii) and (iv). The complainant was informed accordingly by letter of 2 June 2004.

421

THE INQUIRY The Commission's opinion In its opinion, the Commission addressed, in summary, the complainant's allegations as follows: Allegation (ii)(2) The Commission's services acknowledged receipt of the complainant's letter dated 29 May 2003 (registered on 3 June 2003). A reply was promptly prepared by the relevant official. The Commission's records clearly showed that this draft letter was prepared and last saved on the common 'j' drive of the relevant unit. The official concerned signed the letter and assumed that the letter had been sent out. No further checking was made as regards the dispatching of the letter. It was important to bear in mind the extraordinary volume of work involved in the Lloyd's case. The Commission received 35 formal complaints, some of which on behalf of large associations. Correspondence was also received from interested parties and in particular from many members of the European Parliament. In addition to formal complaints, the Commission also received correspondence from 61 persons or organisations. In the case at hand, the complainant wrote to the Commission again by letter dated 29 August 2003. Although this letter stated that "letters to members of the European Commission are, for whatever reason, not always acknowledged or answered", it did not state that the complainant had not received a reply to his letter dated 29 May 2003. The Commission replied by letter dated 16 September 2003 within the time-limit set out in its Code of Good Administrative Behaviour. The complainant then wrote again on 23 November 2003, this time specifying that he had not received a reply to his letter dated 29 May 2003. The Commission services promptly investigated the matter and were surprised to find that the signed letter had not been sent. The Commission immediately replied by letter dated 10 December 2003, again in accordance with its Code of Good Administrative Behaviour. It apologised for the failure to reply to the letter dated 29 May 2003. The Commission apologised again to the complainant for the oversight, referring to its very heavy workload. Allegation (iii) The Commission first referred to the fact that the substantive issues in the complainant's letter of 29 May 2003 had already been raised on the complainant's

422

behalf by Mr Perry, Member of the European Parliament, in a letter to the Commission dated 16 April 2002. A detailed response had been made by letter dated 6 June 2002. The Commission submitted that it had addressed the three issues raised in the complainant's letter of 29 May 2003 as follows: As regards the first issue, the complainant had asked why "in 1978, the European Commission withdrew the planned infringement proceedings against the United Kingdom government for failure to transpose the Insurance Directive 73/239 into English law (after allowing the maximum extension of time)". The Commission stated that it could only repeat the information and conclusions that it had previously given to the complainant, i.e. that the Commission services were satisfied with the United Kingdom's undertaking to adopt the required legislation. The United Kingdom authorities had submitted draft regulations and had confirmed that they were using their discretionary powers to operate United Kingdom supervision in conformity with the Directive. The Commission added that this was specifically confirmed by a letter from the United Kingdom authorities dated 20 December 1977. The Commission added that it did not know why there had been a delay of four years between the United Kingdom's commitment and its adoption of legislation on the matter. As regards the second issue, Commission allowed the United to trade for four years outside finally transposed into English date". the complainant had asked why "the European Kingdom competent authority to let Lloyd's continue Community law until 1982 when the Directive was law through the Insurance Companies Act of that

The Commission stated, again, that the United Kingdom authorities had confirmed that they were using their discretionary powers to operate United Kingdom supervision in conformity with the Directive. It furthermore stated that there had been a range of United Kingdom insurance legislation applicable to insurers under the Insurance Companies Act 1974 and related legislation. Consequently, it could not reasonably be concluded that the Commission was allowing United Kingdom insurers to trade in breach of Community law. As regards the third issue, the complainant had stated the following: "I would like to question the compatibility of the Lloyd's Act 1982 with Directive 73/239. As this may require a definitive judgement by the European Court of Justice, please advise me how to achieve this. It is unlikely that such a judgment could be made by a Member State's own national courts where the outcome would tend to be heavily biased in the Member State's favour".

423

The Commission stated that it had always tried to make the point to complainants that national courts were competent to rule on the past conformity of national legislation with EU law. As regards proceedings against a Member State before national courts, extensive details, including references to relevant case-law of the Court of Justice, had been provided in the Commission's letters to the complainant. The Commission referred to its letter of 10 December 2003 (referred to above), in which it had also been made clear to the complainant that any redress had to be sought before a national court. No recommendation was given to the complainant to make an application to the Court of Justice as such an application was almost certain to be inadmissible. As regards action by the Commission to obtain a definitive ruling by the Court of Justice, the Commission had repeatedly made clear to all complainants in the "Lloyd's file" that the "objective of the infringement proceedings under EU law is to establish or restore the compatibility of national law with EU law - and not to rule on past compatibility or incompatibility of a national law". Allegation (iv) As regards the complainant's fourth allegation, the Commission considered that an appropriate response had been provided to this in its explanations relating to the third allegation. The Commission also made additional remarks to underline the size and complexity of the Lloyd's file and to demonstrate that it had communicated extensively with the complainant. The complainant's observations In his observations, the complainant expressed dissatisfaction with the Ombudsman's handling of the present complaint and the related complaint [ C ], stating the following: 1) He did not consider that the Ombudsman had read the text of his initial [ complaint 3 ] carefully enough ("there are several other issues I have raised which [ your staff ] has not selected to be investigated [ in the present inquiry ]. A full response to all, not just some, of my concerns would be appreciated"). 2) He considered that the Ombudsmans reply to his initial [ complaint 3 ] was wrong in that the decision on inadmissibility was (according to the complainant) based on an Ombudsman decision that did not concern the issues of concern to him (i.e. the decision on complaint A); he stated that the Ombudsman's decision referred to only concerned breaches of Community law in the period after 2000, whereas the issues raised by himself related to alleged breaches in the period 1978-2000.

424

The complainant also stated that on 20 December 2001, the Commission had issued a press release in which it had stated that it "will decide whether or not it considers there is a violation of Community law". He wanted the Ombudsman to inquire into why no such decision had ever been made. In relation to the allegation that had not been taken up for inquiry, i.e. the allegation concerning a failure to supply the interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State, the complainant appeared to allege that the Commission had wrongly failed to publish the said communication.

THE DECISION 1. Introductory remarks 1.1 On 16 January 2004, the complainant sent the Ombudsman a [ complaint 3 ] concerning the Commission's handling of an infringement complaint relating to alleged breaches of EC Directive 73/239 by the United Kingdom. The Ombudsman understood the complaint to be against the Commission's substantive decision in the matter and therefore rejected it because he had already decided on that matter in his decision on [ complaint 2 ]. In a telephone conversation on 29 April 2004, the complainant informed the Ombudsman's services that he was also not satisfied with the Commissions correspondence relating to his infringement complaint. He identified the allegations in his letter of 16 January 2004 which he wanted the Ombudsman to investigate. The Ombudsman opened the present inquiry accordingly. 1.2 In his observations, the complainant expressed dissatisfaction with the Ombudsman's handling of his present complaint and of [ complaint 3 ]. He essentially raised two issues: 1) the Ombudsman had not identified all his allegations for the present inquiry; 2) the Ombudsman had, in his decision on his [ complaint 3 ], wrongly referred to his previous decision on [ complaint 2 ], as that decision according to him only concerned the period after 2000. In addition to these two issues, he put forward (1) that the Commission had wrongly failed to publish a decision on whether there was a breach of Community law by the United Kingdom, despite having stated in a press release that it would do so, and (2) that the Commission had wrongly failed to publish the interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State(3). 1.3 With regard to the complainant's first grievance against the Ombudsman's handling of his complaints, it was already made clear in the Ombudsman's reply to him [ complaint 3 ] that the many statements and remarks made in his complaint letter were not sufficiently specific to be taken up for inquiry as allegations or claims. During a subsequent telephone conversation between the Ombudsman's services and the complainant, the latter clarified his allegations and claims. The Ombudsman notes that, in accordance with his standard practice, he sent the complainant a letter that

425

informed him about the allegations that had been taken up for inquiry. The complainant did not respond to that letter to inform the Ombudsman that he considered the list of allegations to be wrong or incomplete. The Ombudsman considers that including additional allegations at this stage of the inquiry would unnecessarily delay the review of the allegations that he has taken up for inquiry. The Ombudsman has therefore not examined the text of the [ complaint 2 ] in order to try and identify any such additional allegations. The complainant remains free, however, to submit a new complaint in which he sets out his precise allegations and claims. 1.4 With regard to the complainant's second grievance against the Ombudsman's handling of his complaints, it should be noted that the Ombudsman's decision on [ complaint 2 ] did not concern the period after 2000, but stated (as previously quoted) that "the Commission is entitled to focus its Article 226 investigation on whether there is an infringement of Community law following the entry into force of the [ United Kingdom ] Financial Services and Markets Act 2000. The Ombudsman therefore finds no maladministration in relation to this aspect of the complaint." (Emphasis added.) The Ombudsman therefore accepted the Commission's decision not to inquire into the period before the entering into force of the United Kingdoms Financial Services and Markets Act 2000. As the complainant's concerns are with the period 1978-2000, the Ombudsmans decision on [ complaint 2 ] was relevant. 1.5 With regard to the additional allegations (1) that the Commission had wrongly failed to publish a decision on whether there was a breach of Community law by the United Kingdom, despite having stated in a press release that it would do so, and (2) that it was also maladministration not to have published the interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State, the Ombudsman considers that neither of these allegations are necessary for the review of the allegations that he has taken up for inquiry. To avoid unnecessarily delaying a conclusion on those allegations, the Ombudsman has therefore not taken the additional allegations here referred to up for inquiry. The complainant is free, however, to submit a new complaint. 2. Failure adequately to explain lack of reply to the letter of 29 May 2003 2.1 The complainant alleged that he had received only an unsatisfactory and questionable explanation for the failure to reply to his letter of 29 May 2003 to Mr T. (a Commission official). In this letter, the complainant had asked questions relating to what he perceived to have been the Commission's wrongful failure to take action against the United Kingdom for failure to comply with EC Directive 73/239 in the late 1970s and the early 1980s. 2.2 In its opinion, the Commission explained that there had been a very heavy workload in the area concerned, and that its initial failure to reply had been due to an administrative oversight. The Commission explained that it had acknowledged receipt of the complainant's letter dated 29 May 2003 (registered on 3 June 2003), and that

426

subsequently a reply had been promptly prepared by the relevant official. The official concerned had signed the letter and assumed that the letter had been sent out. When the complainant had informed the Commission on 23 November 2003 that he had not received a reply to his letter dated 29 May 2003, the relevant Commission services had promptly investigated the matter and realised that the letter had not been sent. The Commission concluded by stating that it had replied by letter dated 10 December 2003, apologising for the failure to reply to the letter dated 29 May 2003. 2.3 The Ombudsman has thoroughly examined the correspondence submitted to him by the complainant and the Commission. On the basis of that examination, the Ombudsman finds that the Commission appears to generally have made efforts to act diligently in its handling of communications from the complainant. When the complainant stated in a letter of 23 November 2003 that he had not received a reply to his letter dated 29 May 2003, the Commission investigated the matter immediately, replied by letter dated 10 December 2003, and apologised for its initial failure to reply. 2.4 The Ombudsman first notes that the Commission's failure to reply to the complainant's letter of 29 May 2003 was clearly an instance of maladministration. The Commission did, however, take measures to rectify the matter, and apologised to the complainant for not replying. As regards the reasons for why the Commission failed to reply, the Ombudsman considers that the Commission's explanation appears credible, and he therefore has no reason to believe that this failure was due to any other reason than an isolated administrative oversight. The Ombudsman accordingly considers that the complainant's allegation that the Commission has failed to adequately explain the lack of reply to his letter of 29 May 2003 has not been substantiated, and there appears, therefore, to be no maladministration regarding this aspect of the complaint. 3. Alleged failure to reply to the questions in the letter of 29 May 2003 3.1 The complainant alleged that the Commission had either failed to reply or had given him unsatisfactory or no replies to three questions addressed by him to Mr T. in his letter of 29 May 2003. He had, in summary, asked why the Commission withdrew a planned infringement proceeding against the United Kingdom in 1978, why the Commission allowed (as he saw it) the United Kingdom to infringe Community law, and how he himself could obtain a judgement by the European Court of Justice. 3.2 In its opinion, the Commission referred to communications that it had sent either directly to the complainant or in response to a request made by a Member of the European Parliament on behalf of the complainant. 3.3 The three questions addressed by the complainant to Mr T. all concern the Commissions actions related to the period before the entering into force of the United Kingdoms Financial Services and Markets Act 2000. As noted above, the Ombudsman has concluded in his inquiry into [ complaint 2 ] that "the Commission is entitled to focus its Article 226 investigation on whether there is an infringement of

427

Community law following the entry into force of the [ United Kingdom ] Financial Services and Markets Act 2000. The Ombudsman therefore finds no maladministration in relation to this aspect of the complaint." In the light of this, the Ombudsman points out that his inquiry into the complainant's second allegation is solely aimed at assessing whether the Commission has given adequate replies on the basis of the information available. His inquiry is not aimed at assessing whether the Commission re-examined the issue of whether the United Kingdom breached Community law in the period from 1978 to the entering into force of the United Kingdom's Financial Services and Markets Act 2000. 3.4 Having examined the Commissions opinion and its reply to the complainant's letter of 29 May 2003, the Ombudsman notes that the Commission explained to the complainant (i) that the Commission's services had been satisfied with the United Kingdom's undertaking to adopt the required legislation, (ii) that it did not consider that it had allowed the United Kingdom to infringe Community law, and (iii) that the national courts would be competent to rule on the past conformity of national legislation with Community law. The Commission explained in its opinion that it had not recommended to the complainant to make an application to the Court of Justice as such an application was almost certain to be inadmissible. 3.5 In the light of the above, the Ombudsman considers that the Commission gave the complainant adequate replies to the questions posed in his letter of 29 May 2003. There has, therefore, been no maladministration with regard to this aspect of the complaint. 4. Failure to provide information on United Kingdom procedures 4.1 The complainant alleged that the Commission had failed to provide him with information as to an established procedure in the United Kingdom which enables a citizen to obtain compensation for loss and/or damage caused by infringement of Community law. 4.2 In its opinion, the Commission stated that extensive information, including references to relevant case-law of the Court of Justice, had been provided in its letters to the complainant, and that it had also been made clear to the complainant that any redress had to be sought before a national court. 4.3 The Ombudsman considers that it is reasonable for the Commission, in its communications with private individuals relating to concrete cases, to limit its information on issues of compensation claims against Member States to information on the rights established in the case-law of the Court of Justice. The Commission cannot, in the Ombudsmans view, be obliged to provide legal advice regarding national rules of procedure. The Ombudsman therefore considers that the complainants fourth allegation has not been substantiated, and that there has therefore been no maladministration with regard to this aspect of the complaint.

428

5. Conclusion On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------First Council Directive on the co-ordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, Official Journal 1973 L 228, p. 3.
(2) (1)

Allegation (i) was not taken up for inquiry for the reason explained above.

This related to the complainant's first allegation (concerning a failure to supply an interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State) which was not taken up for inquiry because it appeared that there was no interpretative communication that could be supplied.

(3)

429

Decision of the European Ombudsman on complaint 1365/2004/TN against the European Commission

Strasbourg, 29 April 2005

Dear Mr H., On 11 May 2004, you made a complaint to the European Ombudsman on behalf of Fuinneamh Sceirde Teoranta (FST) concerning the European Commission's evaluation of proposal no. 503170 - DOWIAC under the Sixth Research Framework Programme. On 3 June 2004, I forwarded the complaint to the President of the Commission. The Commission sent the English translation of its opinion on 25 August 2004. I forwarded it to you with an invitation to make observations, which you sent on 29 October 2004, with further information provided on 11 December 2004. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are, in summary, the following: Fuinneamh Sceirde Teoranta (hereafter "FST") led a consortium of European companies, which applied for funding under the Sixth Research Framework Programme for an offshore wind project off the Irish coast. However, the Commission's evaluation of the DOWIAC project proposal was grossly factually incorrect. The Commission's evaluation report states, among other things, that the consortium lacks a specialised foundation designer(1), when in fact the Danish partner of the consortium, Techwise, is in all likelihood the leading company in the world in this specific field. The complainant questions the point in the Commission using experts to review funding applications if the experts' expertise is not used. The experts do not seem to have made use of their expertise when assessing the DOWIAC proposal's statement that Techwise is a specialist in the field concerned. The complainant alleges, in substance, that the Commission made a manifest error of evaluation of the consortium's project proposal by stating that the consortium lacked a specialised foundation designer.

430

The complainant claims that: 1) The Commission should correct the factual errors made in its evaluation of the project proposal; 2) The Commission should re-examine the proposal as regards the awarding of funding; and 3) A revision should be made of the Commission's procedures, in order to allow applicants to review their evaluation reports for factual errors prior to the award decision.

THE INQUIRY The Commission's opinion In its opinion, the Commission makes, in summary, the following comments: The DOWIAC proposal was submitted under the call for proposals for indirect actions for the awarding of a Community grant under the specific programme of research, technological development and demonstration "Integrating and strengthening the European research area (2002-2006)", priority: "Sustainable energy systems". The aim of the proposed project was to develop a suitable offshore foundation concept for the installation of wind turbines in the Atlantic Ocean off the coast of Ireland and Scotland. The DOWIAC proposal was evaluated in April 2003 by independent experts from outside the Commission in accordance with the procedures published and applied under the Sixth Framework Programme(2). The proposal was rejected unanimously by the three experts, being given an overall mark of 15.6 out of a total of 30 points. It did not reach the minimum threshold required for five out of six evaluation criteria. The evaluation exercise took place under the supervision of two observers who had the task of ensuring that the relevant procedures were strictly applied. These observers did not mention any anomalies concerning the way in which the DOWIAC proposal had been evaluated. The Classification Committee of the Commission's Directorate-General for Energy and Transport (hereafter "DG TREN") confirmed all the evaluation results. The results and all the evaluation reports were then sent to the Member States' representatives in the Framework Programme Committee. Having learnt about the content of the evaluation report through the Irish delegation, FST sent a letter to the Head of Unit D2 in DG TREN on 7 July 2003. FST's letter alleges errors by the evaluators. In reply, DG TREN informed FST that it could not provide any information about the evaluation procedure at that stage since the evaluation had not yet been completed. The same alleged errors in the evaluation were brought to DG TREN's attention in an

431

e-mail of 9 July 2003, from an Irish Member of the European Parliament. In reply, DG TREN again explained that it could not yet provide any information about the evaluation procedure. On 16 July 2003, the Framework Programme Committee approved the evaluation results. During its session, the Irish delegation did not mention any problems pertaining to the DOWIAC proposal. A letter explaining that the DOWIAC proposal had been rejected was sent to FST on 30 July 2003. The evaluation report was enclosed with this letter. According to the Commission, the complaint to the Ombudsman restates criticism and allegations that the FST already has brought to the Commission's attention and to which the Commission already has replied in each case. As regards the experts' opinion that the project partnership did not have a true specialist on foundation design, the Commission recalls that the experts are required to evaluate project proposals, including the quality of the participants, solely on the basis of what is presented in the text of the proposal and not on the basis of the participants' presumed reputation and image. The three experts felt that the information provided, in merely four lines, concerning the Danish partner, which would play a key role in implementing the project, was not convincing. The experts' opinion also pointed out that the application contained no information about the design of the foundation. The Commission points out that the design of the foundation was the main objective of the project and that the experts felt that they were unable to assess the quality and innovative character of the design because they did not have any information on the strategies envisaged. Not only the DOWIAC proposal's overall mark, but also the marks for five out of six evaluation criteria, failed to reach the minimum threshold. The evaluation criteria were evaluated independently of each other in accordance with the applicable procedures. A higher, or even maximum, mark for one or two of the evaluation criteria would not have resulted in the DOWIAC proposal being awarded Community grant. As regards the complainant's claims, the Commission argues that the proposal was evaluated in accordance with the procedures in force under the Sixth Framework Programme and that the results do not need to be corrected or re-evaluated. Nor do the Commission's procedures need to be revised since the current provisions are sufficient to ensure that all complaints which are well founded get a fair examination. The examination of well founded complaints can lead to the results being re-examined if evidence of errors or anomalies is found. It is understandable that certain applicants are not satisfied with the results of the evaluation and wish to have the evaluation results reviewed, given that the oversubscription of proposals means that, on average, only one in four or five proposals can be accepted for funding. However, the Commission does not consider it necessary to review the procedures in order to allow applicants to review their

432

evaluation reports for factual errors prior to the award decision, as proposed by the complainant. There are already numerous checks and balances in the evaluation procedure itself which should prevent such errors from occurring and which take effect in the event of a manifest error. Any additional procedure allowing a limited number of unsatisfied applicants to have their cases undergo further review would lead to inequality of treatment. The Commission is confident that the procedures used to carry out the evaluation of proposals with the help of independent experts are safe, secure and transparent. The Guidelines on Proposal Evaluation and Selection Procedures for the Sixth Framework Programme(3) provide a clear legal basis for the evaluation of proposals. These guidelines require, inter alia, transparent procedures for the selection of independent experts, briefing of independent experts prior to carrying out any evaluation, an individual evaluation of each proposal by at least three experts, consensus agreement between the experts evaluating each proposal, a panel evaluation resulting in the Evaluation Summary Report for each proposal and a ranked list of proposals having passed the thresholds. The complainant's observations In his observations, the complainant maintains his initial complaint and makes, in summary, the following additional comments: The Commission made an erroneous factual statement in its evaluation but is nevertheless unwilling to consider that it may be at fault in any way. FST sees little point in the Commission using experts who know so little about the area being evaluated that the clear information given about Techwise could lead to such a blatant mistake. Experts should have industry specific knowledge, not just academic expertise. FST therefore remains in the belief that there is something wrong with the Commission's procedures as regards both the evaluation of proposals and the correction of factual errors. FST understands that, even if the factual error is corrected in its case, the DOWIAC project may still not receive funding. However, the error should nevertheless be corrected, if only for the reputation of Techwise, and the project should at least be re-considered for funding in light of the correction made.

THE DECISION 1. The alleged manifest error of evaluation 1.1 The complaint concerns the European Commission's evaluation of proposal no. 503170 - DOWIAC under the Sixth Research Framework Programme. The complaint is made on behalf of Fuinneamh Sceirde Teoranta ("FST") which led a consortium of European companies applying for funding for an offshore wind project off the Irish coast. The complainant argues that the Commission's evaluation of the DOWIAC project was grossly factually incorrect. The Commission's evaluation report states,

433

among other things, that the consortium lacks a specialised foundation designer, when it was stated in the project proposal that the Danish partner of the consortium, Techwise, is a specialist in the field concerned. According to the complainant, Techwise is in all likelihood the leading company in the world in the specific field. The complainant and FST see little point in the Commission using experts who know so little about the area being evaluated that the clear information given about Techwise could lead to such a blatant mistake. Experts should have industry specific knowledge, not just academic expertise. The factual error should be corrected, if only for the reputation of Techwise, and the project should be re-considered for funding in light of the correction made. The complainant alleges, in substance, that the Commission made a manifest error of evaluation of the consortium's project proposal by stating that the consortium lacked a specialised foundation designer. 1.2 The Commission argues that the DOWIAC proposal, the aim of which was to develop a suitable offshore foundation concept for the installation of wind turbines in the Atlantic Ocean, was evaluated by independent experts from outside the Commission in accordance with the procedures published and applied under the Sixth Framework Programme(4). The proposal was rejected unanimously by the three experts. The evaluation exercise took place under the supervision of two observers who did not mention any anomalies in the evaluation. Nor did the Irish delegation to the Framework Programme Committee mention any problems pertaining to the DOWIAC proposal. The Framework Programme Committee approved the evaluation results in July 2003. As regards the experts' opinion that the project partnership did not have a true specialist on foundation design, the Commission recalls that the experts are required to evaluate project proposals, including the quality of the participants, solely on the basis of what is presented in the text of the proposal and not on the basis of the participants' presumed reputation and image. The three experts felt that the information provided, in merely four lines, concerning the Danish partner, which would play a key role in implementing the project, was not convincing. 1.3 The Ombudsman recalls that it is for the Commission and not for the Ombudsman to carry out the evaluation of project proposals. The task of the Ombudsman in dealing with the present complaint is not to re-evaluate the complainant's proposal, but to investigate whether there was a manifest error of evaluation by the Commission. The Ombudsman considers that the question of whether there was a manifest error of evaluation by the Commission should be examined on the basis of the information available to the Commission and the evaluators in the context of the evaluation procedure. 1.4 The Ombudsman notes that the common evaluation criteria for Specific Targeted Research Projects under the specific programme "Integrating and strengthening the

434

European research area (2002-2006)" (5) stipulate that the evaluation of a project proposal aims to determine, inter alia, the extent to which the participants are wellsuited and committed to the tasks assigned to them. 1.5 The Ombudsman also notes the Commission's explanation that the statement in the Evaluation Summary Report, i.e. that "[t]he project consortium does not include a company specialised in foundation design", was based on the fact that the three experts evaluating the proposal did not find convincing the information provided on the Danish partner, which would play a key role in implementing the project. The Ombudsman further notes that the following information concerning the Danish partner of the consortium, Techwise, was provided in the project proposal: "Techwise is a subsidiary of ELSAM, the electrical utility of west Denmark. It is the engineering consultancy wing of that organisation, and has been intimately involved in its wind power development programme, most recently developing the 160 MW Horns Rev offshore wind farm. The civil engineering section has carried out the foundation designs, and has offered its services to carry out that part of this project. /.../ Three of the participants are world class organisations, Ge Wind, ESBI and Techwise." 1.6 The Ombudsman has carefully examined the available documentary evidence and finds that, contrary to the complainant's assertion, the rather brief information on Techwise contains no reference to the company being a specialist in the field concerned. Nor does it refer to Techwise as being, "in all likelihood", the leading company in the world in the specific field. 1.7 The Ombudsman considers that, assuming that the complainant is correct in asserting that Techwise is a specialist on foundation design and even the leading company in the world in this field, the complainant has not demonstrated that the Commission or the experts who carried out the evaluation of the DOWIAC project should have been aware of Techwise's standing regardless of the information provided by the complainant in the proposal. The Ombudsman does not, therefore, consider that the Commission committed a manifest error of evaluation in concluding, on the basis of the information contained in the proposal, that the consortium lacked a specialised foundation designer. The Ombudsman therefore finds no maladministration by the Commission. 2. The complainant's claims pertaining to correction and re-examination 2.1 The complainant claims that the Commission should: 1) correct the factual errors made in its evaluation of the project proposal; and 2) re-examine the proposal as regards the award of funding. The complainant argues that the correction of the factual errors should be made particularly with an eye to the reputation of Techwise. 2.2 As regards the first claim, on the basis of the Commission's opinion the Ombudsman understands the Commission to argue that the DOWIAC proposal lacked

435

sufficient information about Techwise. However, the Commission does not, in its opinion, appear to contest the complainant's statement that, in fact, Techwise is a specialist on foundation design and even the leading company in the world in this field. 2.3 As regards the second claim, the Ombudsman notes that the Commission argues that the DOWIAC proposal failed to reach the minimum threshold for five out of six evaluation criteria and that even a maximum mark for one or two of the evaluation criteria would not have resulted in the DOWIAC proposal being awarded Community grant. The complainant's observations do not appear to contest this argument. 2.4 In view of the above, and of the finding in point 1.7, the Ombudsman finds no ground to pursue the two claims concerned. 3. The complainant's claim pertaining to the Commission's procedures 3.1 The complainant claims that a revision should be made of the Commission's procedures, in order to allow applicants to review their evaluation reports for factual errors prior to the award decision. 3.2 The Commission argues that the current provisions are sufficient to ensure that all well founded complaints about evaluations get a fair examination. The examination of well founded complaints can lead to the results being re-examined if evidence of errors or anomalies is found. Furthermore, there are already numerous checks and balances in the evaluation procedure itself which should prevent factual errors from occurring. Any additional procedure allowing a limited number of unsatisfied applicants to have their cases undergo further review would lead to inequality of treatment. The Commission is confident that the procedures used to carry out the evaluation of proposals with the help of independent experts are safe, secure and transparent. The Guidelines on Proposal Evaluation and Selection Procedures for the Sixth Framework Programme(6) require, inter alia, transparent procedures for the selection of independent experts, briefing of independent experts prior to carrying out any evaluation, an individual evaluation of each proposal by at least three experts, consensus agreement between those experts evaluating each proposal, a panel evaluation resulting in the Evaluation Summary Report for each proposal and a ranked list of proposals having passed the thresholds. 3.3 The Ombudsman notes that, according to the Guidelines on Proposal Evaluation and Selection Procedures(7), "the Commission services review the results of the evaluation by the independent experts, make their assessment of the proposal based on the advice from these experts and prepare the final evaluation results". It is thus the Commission that is responsible for the final decision on the evaluation of a project proposal and its services therefore have the opportunity to detect and correct possible manifest errors made by external experts. In the Ombudsman's view, the structure of the decision making process thus appears to contain, in itself, a mechanism for correcting manifest errors in the evaluation of proposals. Furthermore, the

436

Ombudsman has found no evidence to cast doubt on the Commission's statement that well founded complaints about the evaluation of project proposals can lead to the results being re-examined if evidence of errors or anomalies is found. In view of the above, the existing procedures for correcting manifest errors appear to be adequate and the Ombudsman therefore finds no ground to pursue the complainant's claim in this regard(8). 4. Conclusion On 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,

P. Nikiforos DIAMANDOUROS ------------------------The Ombudsman understands "foundation designer" to mean a party in charge of designing the sea bed foundations for the wind turbines.
(2) (1)

See http://www.cordis.lu/fp6/stepbystep/eval.htm and http://www.cordis.lu/fp6/find-doc.htm#evalproc. COM C/2003/4350.

(3)

(4)

See http://www.cordis.lu/fp6/stepbystep/eval.htm and http://www.cordis.lu/fp6/find-doc.htm#evalproc. ftp://ftp.cordis.lu/pub/fp6/docs/wp/sp1/sp1_annexb_wp_200207_en.pdf. COM C/2003/4350.

(5)

(6)

(7)

ftp://ftp.cordis.lu/pub/documents_r5/natdir0000070/s_1984005_20040909_140012_1 984en.pdf. This analysis corresponds to the conclusions made by the Ombudsman in his decision on case 1480/2003/(BB)TN.
(8)

437

Decision of the European Ombudsman on complaint 1368/2004/GG against the European Commission

Strasbourg, 15 December 2005

Dear Mr G., On 3 May 2004, you made, acting on behalf of GFI Umwelt Gesellschaft fr Infrastruktur und Umwelt mbH, a complaint to the European Ombudsman concerning a request for access to documents. On 19 May 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 25 August 2004. I forwarded it to you on 30 August 2004 with an invitation to make observations, which you sent on 27 September 2004. In these observations, you submitted a further allegation. On 20 October 2004, I requested the Commission to provide me with further information in relation to your case and to comment on the additional allegation you had raised. The Commission sent its reply on 14 December 2004. I forwarded it to you on 14 December 2004 with an invitation to make observations, which you sent on 30 December 2004. On 18 January 2005, I asked the Commission for access to its file. The inspection of the relevant documents was carried out by my services on 22 February 2005. A copy of this report was forwarded to you on 28 February 2005 with an invitation to make observations, which you sent on 9 March 2005. On 29 April 2005, I addressed a draft recommendation to the Commission, asking for the latter's detailed opinion to be submitted by 31 July 2005. By note dated 5 August 2005, the Commission's Secretariat-General informed me that the detailed opinion would be delayed. On 31 August 2005, you wrote to inquire whether the Commission's reply had been received. This letter reached my Office on 7 September 2005. In a telephone conversation with Mr Grill of my services you were informed the same day that the Commission's detailed opinion had not yet been received. The Commission's detailed opinion was received by me on 6 October 2005 (English original) and on 24 October 2005 (German translation). I forwarded it to you on 13 October 2005 (English original) and on 25 October 2005 (German translation) with an invitation to make observations, which you sent on 7 November 2005.

438

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

THE COMPLAINT Introduction The present complaint is related to another complaint (complaint 402/2004/GG) that was submitted by the same complainant, a German company. Complaint 402/2004/GG On 3 August 1999, the Commission concluded a service contract with Rhein-Ruhr Ingenieur-Gesellschaft mbH ("RRI", a German company) as the leader of a consortium including the complainant. The contract was for the provision of two EU experts, a Co-director and a financial/administrative manager for technical assistance to the EU-China Liaoning Integrated Environment Project (LIEP), lot a: Management of the Programme Office and Environmental Awareness Project. Mr W., an expert employed by the complainant, became financial/administrative manager in September 2000. Further to an addendum to the contract signed in September 2001, Mr W. became Deputy Co-Director. On 15 September 2003, the Commissions Delegation in Beijing informed RRI by registered letter that it had decided to terminate the contract on the basis of Article 15 of the latter and on the grounds that the Deputy Co-Director had failed to fulfil his tasks as modified in addendum no 2. The Commission explained that in two letters sent on 6 June 2002 and 30 January 2003, it had pointed out that the services delivered by the complainant were not performed to the satisfaction of the Commission and had warned that unless the Deputy Co-Director fulfilled his duties, it would regard the consortium led by RRI to be in breach of contract. In a letter sent on 22 September 2003, RRI disputed this decision and asked the Commission to give more precise information as to its reasons. In its reply of 26 September 2003, the Delegation pointed out that the Deputy Co-Director had, among other things, the procurement and contracting responsibility. According to the Delegation, the complainants expert had failed to fulfil this duty. RRI addressed a further letter to the Delegation on 10 November 2003. In its reply of 18 November 2003, the Delegation did not provide any further details regarding the reasons for its decision to terminate the contract. As a result of the termination of the technical assistance contract, the complainant considered it necessary to terminate its employment contract with Mr W. The latter appealed against this decision to the Arbeitsgericht (Employment Tribunal) in Bonn ( Germany). It appeared that, in the course of these proceedings, the complainant had to provide detailed information as regards Mr W.s alleged refusal to carry out his duties.

439

In complaint 402/2004/GG, the complainant essentially alleged that the Commission had failed to provide sufficiently precise information concerning the reasons for terminating the technical assistance contract. The Ombudsman decided that an inquiry should be conducted. He therefore sent the complaint to the Commission for its opinion. This opinion was then forwarded to the complainant for its observations. On the basis of the results of these inquiries, the Ombudsman took the view that the Commission had provided sufficiently precise information as to its reasons for terminating the contract and that there was thus no maladministration as regards the allegation made by the complainant. The case was therefore closed by decision of 12 August 2004(1). The complainants letter of 19 March 2004 In its complaint, the complainant had mentioned that it had submitted, on the basis of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 on public access to European Parliament, Council and Commission documents(2) ("Regulation 1049/2001"), a request for access to the documents concerning the termination of the contract to the Commission on the very day on which it had written to the Ombudsman (5 February 2004). In a further letter of 19 March 2004, the complainant informed the Ombudsman that this request had been rejected on 26 February 2004, that a confirmatory application had been made on 4 March 2004 and that the Ombudsmans inquiry should be extended so as to cover the Commissions refusal to grant access. Given that the period of time within which the Commission had to deal with the confirmatory application in accordance with Regulation 1049/2001 (15 working days after registration) had not yet expired at the time when the complainant had written this letter, the Ombudsman informed the complainant that he was not yet able to deal with this further allegation but that the complainant could resubmit this issue as soon as the relevant deadline had expired if the Commission has still not replied. The present complaint In a letter of 3 May 2004, the complainant renewed its complaint as regards the issue of access to documents, pointing out that the confirmatory application had been rejected on 26 April 2004. This letter was therefore registered as a new complaint (complaint 1368/2004/GG). In its decision, the Commission distinguished between three categories of documents. The documents belonging to the first two categories (1: Contractual documents; 2: Correspondence concerning the implementation of the contract) were listed whereas category 3 documents were only referred to in general terms (various correspondence, mainly by e-mail, between various persons in relation to the implementation of the contract). The Commission submitted that the issue of access

440

could not be considered with regard to particular applicants, given that documents that were disclosed belonged to the public domain and were thus accessible to everybody. After having expressed the view that the complainant should already be in possession of the documents belonging to the first two categories, the Commission made the following comments with regard to the whole of the documents. The documents contained information of a commercial nature on the companies, experts and persons involved. Granting access to these documents was therefore prevented by Article 4 (2) of the Regulation according to which access shall be refused where disclosure would undermine the protection of commercial interests. Disclosure would also undermine the protection of the privacy and integrity of individual persons. This was particularly true for documents containing the names of certain persons (in some cases even their curricula vitae). The exception set out in Article 4 (1) (b) of the Regulation was therefore also applicable. No partial access could be granted, given that all the information that these documents contained as regards the implementation of the contract was covered by the need to protect the commercial interests of the persons concerned. There was nothing to suggest that there was an overriding public interest in disclosure. In its complaint to the Ombudsman, the complainant acknowledged that it was in possession of the documents belonging to the first two categories, but not in possession of those belonging to the third category. It stressed that it was not interested in any documents concerning third parties but only in those that related to the termination of its "own" contract. The complainant also submitted that the reasoning of the Commission as regards the protection of the privacy and integrity of Mr W. was grotesque. It stressed that the Commission had justified its termination of the contract by reference to alleged misconduct by Mr W. and had thus impugned the latters integrity in far worse a way than could have been done by any access to documents. The complainant further argued that the Commissions approach would render Regulation 1049/2001 nugatory, given that most documents concern the personal or commercial interests of third parties. The complainant thus substantially alleged that the Commission had failed to comply with Regulation 1049/2001 by refusing to grant the access to the documents it had requested by letters of 5 February 2004 and 4 March 2004. It claimed that the Commission should grant access to the relevant documents.

441

THE INQUIRY The Commission's opinion In its opinion, the Commission made the following comments. The amended responsibilities of Mr W. had been laid down in an addendum to the contract. However, Mr W. had never taken on the new responsibilities, perhaps because his employment contract with the consortium had not been amended in order to reflect the new terms of reference. The Delegation had tried to clarify this matter, but it had never received a clear answer. This situation had led to complaints from the newly recruited Co-director and from the Chinese Director. Eventually, the Commission had decided to terminate the contract. The request for access related to exchanges, mainly by e-mail, between other persons involved in the implementation of the programme, pointing out the fact that Mr W. did not take on the new responsibilities resulting from the upgrading of his post in the amended terms of reference. Disclosing these messages would be harmful to Mr W. as an individual. It would both affect his personal integrity and his commercial interests as regards his position on the labour market. It was Mr W.'s commercial interests that the Commission felt it had a duty to protect, not that of any other party. There was no reason to assume that Mr W. was personally responsible for the fact that the new terms of reference had not been respected. His refusal to take on the new responsibilities might have been due to his contractual position with RRI or the complainant. Once a document had been released to an applicant, it came into the public domain and access should be granted to any other applicant. It was obvious that the documents to which the complainant requested access could not be put in the public domain. The purpose of the request was to use the documents in court proceedings against Mr W. This had nothing to do with openness and the public interest in the disclosure of documents held by the institutions. On the basis of the above considerations, the Commission maintained its decision not to disclose the documents to the complainant. It added that the documents could only be made available to a judicial authority following a court order to produce them. The complainant's observations In its observations, the complainant maintained its complaint and made the following further comments. The Commission's opinion that Mr W.'s behaviour was to be explained by his allegedly dissatisfactory employment contract with the complainant was purely speculative. On 11 April 2002, the complainant had informed the Commission, after having contacted Mr W., that the latter was well aware of his responsibilities. Its

442

request to be given access to the mission reports concerning the project or at least extracts thereof concerning Mr W.'s allegedly poor performance had however been rejected. On 5 February 2003, the consortium had declared, as requested by the Delegation: "Please notice that the contractual agreement between Mr [W.] and [the complainant] cannot provoke any project obstacles." The complainant pointed out that the position that the Commission had adopted as regards access to documents led it to believe that the termination of the relevant contract on account of Mr W.'s alleged inactivity was not in conformity with the law. It therefore asked the Ombudsman to include this issue in his inquiry. In this context, the complainant submitted that it was odd that the termination of the contract had been decided upon after the new Co-director and the Chinese Director had complained. The complainant stressed that the new Co-director was an employee of a company competing with the consortium. Further inquiries After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. Request for additional information and for a supplementary opinion The Ombudsman therefore asked the Commission (1) to explain why the fact that the complainant intended to use the documents to which it had requested access in court proceedings should be relevant for the Commission's handling of requests made under Regulation 1049/2001 and (2) to provide him with a list of the documents falling under category 3 together with an indication, for each document or category of documents, of the exception(s) laid down in Regulation 1049/2001 on the basis of which the Commission believed that no access could be granted to the complainant. The Ombudsman also requested the Commission to provide an opinion on the complainant's additional allegation according to which the termination of the relevant contract on account of Mr W.'s behaviour had not been in conformity with the law. The Commission's reply In its reply, the Commission made the following comments. As regards the issue of access to documents Pursuant to Article 6 (1) of Regulation 1049/2001, an applicant did not have to give reasons when requesting access to documents. The interests of the applicant were therefore not relevant in this context. What the Commission had meant, by referring to the use the complainant intended to make of the relevant documents, was that this purpose could not be considered to be an overriding public interest that would prevail over the need to protect the commercial interests of the other party in the proceedings.

443

Category 3 of the documents, to which the complainant had requested access, comprised 16 documents(3). The disclosure of these documents would undermine the protection of "the privacy and integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data" (Article 4 (1) b of Regulation 1049/2001). Disclosur e of such data could only take place if the conditions for the treatment of personal data laid down in Regulation 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(4) were fulfilled. Article 8 (b) of this Regulation required an applicant to establish the necessity of having the personal data transferred to it and required the institution to be satisfied that the data subject's legitimate interests were not prejudiced by the transfer. As regards the complainant's additional allegation The service contract, which was for the provision of two EU experts (a Co-director and a financial/administrative manager), had been signed on 3 August 1999. On 8 September 2000, RRI had announced that, due to family reasons, the financial/administrative expert had to resign at the end of October 2000 and had proposed Mr W. as his replacement. The Commission had agreed with this. Due to the replacement of the Co-director, the Commission had, in a letter of 10 August 2001, proposed to RRI that Mr W.'s status and responsibilities should be upgraded. RRI had accepted this. This had led to an addendum (addendum no 2) to the service contract being signed on 3 September 2001. In this addendum, the responsibilities of the financial/administrative manager had been increased in a very detailed way, including the stipulation (in Article 1.2.2 of the terms of reference) that "he will share the signing responsibility (regarding e.g., procurement aspects, requests for transfers, management of accounts and contracts) with the Chinese Director". Among the responsibilities and functions entrusted to him were "procurement and contracting responsibility". Another important function was that of "replacing, ad interim, the EC Co-director, Team leader" (Article 4.1 of the terms of reference). The financial/administrative manager (Mr W.) had thus effectively become Deputy Codirector and his fee rate had been increased. On 2 April 2002, the Commission had written to RRI to complain that Mr W. was not fulfilling his new responsibilities and functions. RRI was, according to Article 6 of the contract, the only contact point with regard to communications concerning the contract. On 6 June 2002, these concerns had been raised again. However, the situation had not changed. On 30 January 2003, the Commission had again warned RRI that it would be held in breach of contract if this situation did not change. In its reply of 5 February 2003, RRI had promised to clarify the matter as soon as Mr W. had returned from his holidays. The situation had not changed, however, and Mr W. had kept putting off assuming all the new responsibilities. The complaints about this had kept coming to the Delegation

444

from all parties concerned (Chinese Co-director and EU Co-director), who were forced to take over this extra workload. On 15 September 2003, the Delegation had terminated the contract in accordance with Article 15 of the same. The Commission concluded by saying that it considered to have acted in accordance with the provisions of the contract that it had concluded with the consortium led by RRI. The complainant's observations In its observations, the complainant stressed that six of the eight documents falling under category 3 and dating from 2003 emanated from the EU Co-director, an employee of a competing company. The complainant further pointed out that, if the relevant documents should indeed contain private data, the Commission was free to blank these parts of the documents. It submitted, however, that in so far as Mr W. was concerned, the latter had not acted as a private person within the relevant contract but as an employee of the complainant. The inspection of the Commission's file On 22 February 2005, the Ombudsman's services inspected the Commission's file. On that occasion, the Ombudsman's staff pointed out that the Commission had identified the documents in the file as being confidential and that therefore no copies were going to be made. In reply to a question to that effect put to them by the Ombudsman's staff, the representatives of the Commission present at the inspection explained that the Commission maintained its view that access to the relevant documents had to be denied on the grounds of both Article 4 (1) (b) and Article 4 (2) of Regulation 1049/2001, notwithstanding the fact that only the first of these exceptions had been mentioned in the Commission's letter of 2 December 2004. The complainant's observations A copy of the report on the inspection was sent to the complainant for its observations. In its observations, the complainant pointed out that its position remained unchanged. Given that the Ombudsman had now seen the relevant documents, the complainant asked him (1) whether these documents contained sufficient elements justifying the termination of the contract; (2) whether the allegations possibly contained in these documents could have been answered and rebutted if the Commission had granted access to these documents in good time; (3) whether the documents contained personal data on third persons and whether the Commission had sufficiently considered that Mr W. had acted as its (the complainant's) employee; (4) whether there were reasons or justifications for considering the documents as being confidential; (5) whether the Commission had taken into account that considering

445

documents as confidential only stood in the way of granting access, according to Article 9 (1) of Regulation 1049/2001, where these documents concerned public security, defence or military matters; and (6) whether there were indications suggesting that the Commission was trying to cover up maladministration or an untoward influence by competitors.

THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation Having examined all the evidence that had been submitted to him or that had been collected by his services, the Ombudsman arrived at the conclusion that, whereas there was no maladministration as regards the termination of the contract, the Commission had failed to provide a reasonable explanation for its refusal to grant access to the relevant documents. In the Ombudsman's view, this constituted maladministration. This conclusion was based on the following considerations: 1 The Ombudsman is unable to agree with the position taken by the Commission as regards Article 4 (1) b of Regulation 1049/2001. It should first be noted that the relevant documents concern the implementation of a project financed by the EU. Mr W. was one of the persons who had been recruited for this purpose. It is therefore difficult to see how the disclosure of documents concerning the implementation of this project could undermine the protection of the "privacy" or the "integrity" of Mr W. The Ombudsman furthermore notes that the relevant documents only confirm the Commission's argument that Mr W. had failed to fulfil all the responsibilities that had been entrusted to him by the contract. Given that the Commission has made its argument in its opinion, a publicly accessible document, it is difficult to see what further damage disclosure of the relevant documents could do to Mr W.'s right to privacy and integrity. However, even on the assumption that Mr W.'s privacy or integrity could be affected by the disclosure of the documents, the Ombudsman considers that the Commission has failed adequately to consider the possibility of granting partial access, for example by granting access to versions of the documents in which the name of Mr W. has been blanked out. 2 On a more general note, the position taken by the Commission in the present case could be understood as meaning that wherever the name of a person (which constitutes personal data) is mentioned in a document held by the Commission, this document can only be disclosed if the person asking for access establishes the necessity of having the personal data transferred to him, in conformity with Article 8 (b) of Regulation 45/2001. Given that most documents contain names, this interpretation would deprive the right of public access to documents of most of its meaning although it is a fundamental right recognised by Article 42 of the European Charter of Fundamental Rights. It should in particular be noted in this context that Article 6 (1) of Regulation 1049/2001 provides that no reasons need to be given by an

446

applicant who requests access to documents in a Community institution's possession. The Commission's view that a person requesting access to a document has to establish the necessity of being given a name, whenever the relevant document contains such a name, is difficult to reconcile with this provision. 3 For the avoidance of any doubt, the Ombudsman wishes to stress that he agrees that the need to protect the privacy of a person may make it necessary for a Community institution not to disclose the name of this person when being asked for access to a document containing the name of this person. The Ombudsman considers, however, that such a decision has to be based on the facts of the individual case and that it needs to be taken with due regard to the fact that exceptions to the right of access have to be construed narrowly. He further takes the view that the possibility of granting partial access needs to be considered particularly carefully in such cases. 4 The Commission has also invoked Article 4 (2) first indent of Regulation 1049/2001, according to which access can be refused if the disclosure would undermine the commercial interests of a natural or legal person. In this context, it should be noted that the Commission has stressed that it was the commercial interests of Mr W. and of no other person that it had had in mind. However, it is difficult to see what the commercial interests of Mr W. that the Commission purports to defend could be. As mentioned above, the relevant documents only support the Commission's argument that Mr W. had failed to fulfil all the responsibilities that had been entrusted to him by the contract. Given that the Commission has made its argument in its opinion, which is a publicly accessible document, it is difficult to see what further damage disclosure of the relevant documents could do to Mr W.'s presumed commercial interests. It should further be noted that the Commission has stressed that there was no reason to assume that Mr W. was personally responsible for the fact that the new terms of reference had not been respected. In view of this, it is even more difficult to understand how the disclosure of the documents could undermine Mr W.'s commercial interests. On 29 April 2005, the Ombudsman therefore addressed, in accordance with Article 3 (6) of his Statute, the following draft recommendation(5) to the Commission: The Commission should reconsider the complainant's request for access to documents. The detailed opinion In its detailed opinion on the draft recommendation, the Commission made the following comments. The Commission was convinced that it had properly dealt with the complainant's request for access to documents and that it had duly reasoned its decision not to disclose the 16 documents concerned (a list of which it provided). It had nevertheless reconsidered the complainant's request, in a spirit of good co-operation.

447

The Commission did not consider that, whenever a document contained the name of a person, it should not be disclosed. It took the view that information relating to an identified or identifiable person must be withheld, pursuant to Article 4 (1) (b) of Regulation 1049/2001, if disclosure would affect the person's privacy or integrity or would otherwise constitute an unlawful processing of personal data under Regulation 45/2001. In accordance with Article 4 (6) of Regulation 1049/2001, partial access could be granted by blanking out the personal data. Where access to personal data could not be granted under Regulation 1049/2001, the possibility of transferring the data to a specific recipient for a specific purpose should be considered under Regulation 45/2001. Pursuant to this Regulation, the necessity of having the data transferred had to be established. Since an application for access to documents did not need to be justified, a document that had been disclosed to one applicant consequently had to be released to any other applicant. Therefore, when assessing the harm that could be caused by granting a request for access, the Commission had to consider the consequences of public disclosure. The Commission considered that, in the present case, disclosure of the documents would damage the reputation of the expert. This would undermine the protection of his integrity and his commercial interests, as it could put him in an unfavourable position on the labour market. With the exception of document no 13 on the list, all the documents contained parts that had been authored by persons external to the Commission. Since the Commission had considered that it was not clear whether or not the documents should be disclosed, the authors needed to be consulted pursuant to Article 4 (4) of Regulation 1049/2001. However, since the Commission had been unable to contact these authors, it had to take into account their legitimate interests on the basis of the information that was at its disposal. Having re-examined each of the documents concerned, the Commission remained convinced that full disclosure would undermine the protection of the integrity of the complainant's expert as well as his commercial interests. However, when reviewing the documents, the Commission had considered the possibility of granting partial access. The Commission had repeatedly stated that the complainant's expert had not fulfilled the new tasks, which had been included in the revised terms of reference. In so far as the documents reflected this state of affairs, their content could be disclosed. However, the disclosure of documents containing allegations concerning the complainant's expert, which went beyond the above statement, would clearly damage the reputation of this individual.

448

The Commission further considered that disclosing the identity of the EU Co-Director would undermine the protection of his integrity, since his name appeared in connection with allegations concerning the inadequate performance of contractual obligations. Moreover, with regard to documents nos 1, 2 and 6, the Commission considered that the names of individuals merely executing the transfer of documents on behalf of others compromised their reputation. For all the above reasons, the Commission considered that it could not disclose the identity of the following persons: (1) the expert; (2) the EU Co-Director; (3) the contact person in the office of the Co-Director's employer; and (4) a person who had corresponded with the expert on behalf of a contractor. On that basis, the Commission took the following position: (1) The content of documents nos 1, 2, 3, 6, 9, 10, 11, 12 and 13 could be disclosed in an expunged version from which the names of some individuals had been deleted. (2) Documents nos 4, 5, 7 and 8 contained passages that were not related to the complainant's request for access. These messages had been left out of the documents. The content of the remaining parts could be disclosed in an expunged version from which the names of some individuals had been deleted. (3) In documents nos 3, 4 and 5, the name of a contracting company had been blanked out in order to protect its commercial interests, since this company had been mentioned in connection with an administrative problem. Furthermore, the amounts of advance payments to the complainant and to another company had also been blanked out, for the same reason. (4) Access had to be refused to documents nos 14, 15 and 16, since their disclosure would undermine the protection of an identified individual, as well as his commercial interests. Since these letters contained no other elements than allegations concerning an identifiable individual, partial access could not be granted. The Commission enclosed edited versions of the documents to which partial access was granted. The complainant's observations In its observations, the complainant pointed out that it welcomed the concessions made by the Commission but stressed that they did not go far enough. The complainant made the following specific comments on the detailed opinion.

449

It was not possible to see how disclosure of the name of the EU Co-director could threaten the latter's integrity. The reproaches made by this person appeared to have played an important role as regards the Commission's decision to terminate the contract. It was to be assumed that the Commission still considered these reproaches to be well-founded. As regards the consultation of third parties, regard should be had to the fact that the request for access had already been made in February 2004. It was completely beyond belief that the Commission should have been unable to obtain the agreement of these third parties as regards the disclosure of the relevant documents, particularly as the author of many of these documents was the EU Co-Director who appeared to have worked on the LIEP until August 2004. However, if the Commission were at least to ensure that the documents emanating from the EU Co-Director indicated at least the latter's title, the complainant would not insist on the disclosure of the name. There was no objection to the blanking out of the names of the contact person in the office of the Co-Director's employer and of a person who had corresponded with the expert on behalf of a contractor or to the blanking out of contractual details. There was however no reason to justify blanking out the name of Mr W., the complainant's expert. The relevant documents described purely factual matters, that is to say the fact that certain services had not been provided. However, on that basis the Commission could only reproach its contractual partner for failure to fulfil the contract. The Commission was unable to answer the question as to whether the fault for this omission lay with the complainant or with the complainant's expert. The German labour courts had exclusive competence to answer that question, and the proceedings pending before these courts were the only forum where the integrity of the complainant's expert, which had been called into doubt by the Commission's decision to terminate the contract, could be restored. As regards documents nos 14-16, the Commission had argued that the disclosure of documents containing allegations concerning the expert, which went beyond the statement that he did not fulfil the tasks resulting from the new terms of reference, would clearly damage this person. This was surprising. Its request for access had pursued the exclusive purpose of gaining access to the documents on which the decision to terminate the contract had been based. It had been the Commission that had referred to documents nos 1-16 as being relevant in this context. The fact that the Commission now referred to further allegations against the complainant's expert suggested that the Commission had terminated the contract (also) for reasons other than the one set out in the letter that the Commission had sent at the time. There was no basis for denying access to the relevant documents. The Ombudsman should therefore try and make the Commission grant access to documents nos 14-16.

450

THE DECISION 1. Introductory remarks 1.1 The present complaint was brought by a German company. In 1999, the Commission concluded a service contract with Rhein-Ruhr Ingenieur-Gesellschaft mbH ("RRI", a German company) as the leader of a consortium including the complainant. The contract was for the provision of two EU experts, a Co-director and a financial/administrative manager for a project in China. Mr W., an expert employed by the complainant, was appointed financial/administrative manager in September 2000. Further to an addendum (addendum no 2) to the contract signed in September 2001, Mr W. effectively became Deputy Co-Director. On 15 September 2003, the Commissions Delegation in Beijing informed RRI that it had decided to terminate the contract on the grounds that the Deputy Co-Director had failed to fulfil his tasks as modified in addendum no 2. The complainant subsequently asked the Commission for access to the documents on which this termination had been based. This request was rejected by the Commission. 1.2 In its complaint to the Ombudsman, lodged in May 2004, the complainant alleged, in substance, that the Commission had failed to comply with Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 on public access to European Parliament, Council and Commission documents(6) ("Regulation 1049/2001") by refusing to grant access to the relevant documents. 1.3 In its observations on the Commission's opinion on this complaint, the complainant submitted an additional allegation according to which the termination of the relevant contract on account of Mr W.'s behaviour had not been in conformity with the law. The Ombudsman decided to include this allegation in his inquiry and asked the Commission for a supplementary opinion. 1.4 The Ombudsman subsequently proceeded to an inspection of the Commission's file. In its observations on the report on this inspection, the complainant asked the Ombudsman (1) whether these documents contained sufficient elements justifying the termination of the contract; (2) whether the allegations possibly contained in these documents could have been answered and rebutted if the Commission had granted access to these documents in good time; (3) whether the documents contained personal data on third persons and whether the Commission had sufficiently considered that Mr W. had acted as its (the complainant's) employee; (4) whether there were reasons or justifications for considering the documents as being confidential; (5) whether the Commission had taken into account that considering documents as confidential only stood in the way of granting access, according to Article 9 (1) of Regulation 1049/2001, where these documents concerned public security, defence or military matters; and (6) whether there were indications suggesting that the Commission was trying to cover up maladministration or an untoward influence by competitors.

451

1.5 It should be noted that the Ombudsman's role is to examine allegations of maladministration, not however to answer specific questions put to him by complainants. The Ombudsman would, in any event, not be able to reply to hypothetical questions like the second of the questions submitted by the complainant. It appears, however, that most of the other questions are linked to the allegations that are the subject of the present inquiry. The Ombudsman's examination of these allegations will therefore also answer these questions. 1.6 The Ombudsman considers it however appropriate to add a clarification as to the facts on which the fourth and fifth of the complainant's questions appear to be based. The reference to the "confidential" nature of the documents concerned in the report of the inspection of the file was intended to indicate that the Ombudsman had taken note of the Commission's position that the relevant documents should not be disclosed to the complainant. The use of this expression by the Ombudsman does not mean that the Commission had submitted further arguments in order to support its view that the documents should not be disclosed. As regards the complainant's reference to Article 9 (1) of Regulation 1049/2001, it should be noted that this provision covers "sensitive" documents (and not "confidential" documents). 2. Allegedly unlawful termination of contract 2.1 In its observations on the Commission's opinion, the complainant alleged that the Commission's decision to terminate the contract on account of the behaviour of the Mr W. had not been in conformity with the law. 2.2 The Commission explained that the service contract had provided for the provision of two EU experts, a Co-director and a financial/administrative manager, and that in 2000 Mr W. had been appointed financial/administrative manager. An addendum to the contract had been signed in September 2001. According to the Commission, this addendum had considerably increased the responsibilities of the financial/administrative manager, including the stipulation (in Article 1.2.2 of the terms of reference) that "he will share the signing responsibility (regarding e.g., procurement aspects, requests for transfers, management of accounts and contracts) with the Chinese Director". The Commission submitted that among the responsibilities and functions entrusted to Mr W. were the "procurement and contracting responsibility" and the duty of "replacing, ad interim, the EC Co-director, Team leader" (Article 4.1 of the terms of reference). On 2 April 2002, the Commission had written to RRI to complain that Mr W. was not fulfilling his new responsibilities and functions. On 6 June 2002, these concerns had been raised again. According to the Commission, however, the situation had not changed. On 30 January 2003, the Commission had again warned RRI that it would be held in breach of contract if this situation did not change. In its reply of 5 February 2003, RRI had promised to clarify the matter as soon as Mr W. had returned from his holidays.

452

According to the Commission, the situation had not changed, however, and Mr W. had kept putting off assuming all the new responsibilities. The Commission submitted that complaints about this had kept coming to the Delegation from all parties concerned (Chinese Co-director and EU Co-director), who were forced to take over this extra workload. The Commission submitted that its decision to terminate the contract in accordance with Article 15 of the latter had therefore been correct. 2.3 Before dealing with the present allegation, the Ombudsman considers it useful to stress that he has no mandate to examine the conduct of Mr W. His inquiry is therefore limited to ascertaining whether the Commission's decision to terminate the contract on account of Mr W.'s behaviour was in conformity with the law. 2.4 The Ombudsman notes that the complainant does not dispute that Mr W.'s responsibilities were increased by the above-mentioned addendum to the contract and that these duties included a responsibility in the area of "procurement and contracting". 2.5 The Ombudsman has inspected the Commission's file in this case. The documents inspected on this occasion showed that Mr W. indeed appeared to assume that he had no responsibility in the area of "procurement and contracting" and that several items falling within this area thus had to be dealt with by other persons involved in the implementation of the project. It is true that the complainant has stressed that some of the relevant documents emanated from the EU Co-director, an employee of a competing company. It should be noted, however, that the relevant documents also include messages from Mr W. himself and that the contents of these messages also support the Commission's position. 2.6 In its observations on the Commission's detailed opinion, the complainant surmised that the Commission might have had further reasons for terminating the contract. The Ombudsman, whose services inspected the Commission's file, is not aware of any such further reasons. He furthermore takes the view that the fact that Mr W. failed to assume all the responsibilities that the amended terms of reference had assigned to him would in any event have been sufficient to entitle the Commission to terminate the contract in the present case. 2.7 In these circumstances, and taking into account the Commission's efforts to solve the problem, the Commission's position appears to be reasonable. No maladministration can therefore be found as regards the Commission's decision to terminate the contract. 3. Alleged failure to grant access to documents 3.1 In February 2004, the complainant had asked the Commission for access to the documents concerning the termination of the contract. This request had been rejected

453

by the Commission. In its complaint to the Ombudsman, the complainant alleged that by doing so the Commission had failed to comply with Regulation 1049/2001. The complainant made it clear that its complaint only concerned the third of the three categories of documents identified by the Commission in this context. This category was described by the Commission as comprising various correspondence, mainly by e-mail, between various persons in relation to the implementation of the contract. 3.2 In its opinion, the Commission took the view that disclosing these messages would be harmful to Mr W. as an individual, given that it would both affect his personal integrity and his commercial interests as regards his position on the labour market. The Commission pointed out that there was no reason to assume that Mr W. was personally responsible for the fact that the new terms of reference had not been respected. His refusal to take on the new responsibilities might have been due to his contractual position with RRI or the complainant. 3.3 In its reply to the Ombudsman's request for further information, the Commission pointed out that the relevant category of documents comprised 16 documents. The Commission argued that the disclosure of these documents would undermine the protection of "the privacy and integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data" (Article 4 (1) b of Regulation 1049/2001). It further submitted that the disclosur e of such data could only take place if the conditions for the treatment of personal data laid down in Regulation 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(7) were fulfilled. The Commission noted that Article 8 (b) of this Regulation required an applicant to establish the necessity of having the personal data transferred to it and required the institution to be satisfied that the data subject's legitimate interests were not prejudiced by the transfer. On the occasion of the inspection of the file, the Commission clarified that it continued to believe that its decision was also justified on the basis of Article 4 (2) of Regulation 1049/2001. 3.4 On 29 April 2005, the Ombudsman addressed a draft recommendation to the Commission in which he recommended that the latter should reconsider the complainant's request for access to documents. This proposal was based on the view that the Commission had failed to provide a reasonable explanation for its refusal to grant access to the relevant documents. 3.5 In its detailed opinion, the Commission explained that, although it was convinced that it had properly dealt with the complainant's request for access to documents and that it had duly motivated its decision not to disclose the 16 documents concerned (a list of which it provided), it had nevertheless reconsidered the complainant's request, in a spirit of good co-operation. As a result, the Commission had decided to grant partial access to documents nos 1-13.

454

The Commission stressed that it had had to consider the consequences of public disclosure. In its view, the disclosure of the documents at issue in the present case would damage the reputation of the expert. This would undermine the protection of his integrity and his commercial interests, as it could put him in an unfavourable position on the labour market. However, the Commission had considered the possibility of granting partial access. The Commission had repeatedly stated that the complainant's expert had not fulfilled the new tasks, which had been included in the revised terms of reference. In so far as the documents reflected this state of affairs, their content could be disclosed. However, the disclosure of documents containing allegations concerning the complainant's expert, which went beyond the above statement, would clearly damage the reputation of this individual. The Commission further considered that disclosing the identity of the EU Co-Director would undermine the protection of his integrity, since his name appeared in connection with allegations concerning the inadequate performance of contractual obligations. Moreover, with regard to documents nos 1, 2 and 6 the Commission considered that the names of individuals merely executing the transfer of documents on behalf of others compromised their reputation. 3.6 For all the above reasons, the Commission considered that it could not disclose the identity of the following persons: (1) the expert; (2) the EU Co-Director; (3) the contact person in the office of the Co-Director's employer; and (4) a person who had corresponded with the expert on behalf of a contractor. On that basis, the Commission took the following position: (1) The contents of documents nos 1, 2, 3, 6, 9, 10, 11, 12 and 13 could be disclosed in an expunged version from which the names of some individuals had been deleted. (2) Documents nos 4, 5, 7 and 8 contained passages, which were not related to the complainant's request for access. These messages had been left out of the documents. The content of the remaining parts could be disclosed in an expunged version from which the names of some individuals had been deleted. (3) In documents nos 3, 4 and 5 the name of a contracting company had been blanked out in order to protect its commercial interests, since this company had been mentioned in connection with an administrative problem. Furthermore, the amounts of advance payments to the complainant and to another company had also been blanked out, for the same reason. (4) Access had to be refused to documents nos 14, 15 and 16, since their disclosure would undermine the protection of an identified individual, as well as his commercial interests. Since these letters contained no other elements

455

than allegations concerning an identifiable individual, partial access could not be granted. The Commission enclosed edited versions of the documents to which partial access was granted. 3.7 In its observations, the complainant pointed out that it welcomed the concessions made by the Commission but stressed that they did not go far enough. The complainant pointed out that there was no objection to the blanking out of the names of the contact person in the office of the Co-Director's employer and of a person who had corresponded with the expert on behalf of a contractor or to the blanking out of contractual details. However, the complainant took the view that it was not possible to see how the disclosure of name of the EU Co-Director could threaten the latter's integrity. In the complainant's view, there was no reason to justify blanking out the name of Mr W. either. As regards documents nos 14-16, the complainant submitted that the Commission had argued that the disclosure of documents containing allegations concerning the expert, which went beyond the statement that he did not fulfil the tasks resulting from the new terms of reference, would clearly damage this person. The complainant considered this to be surprising. It stressed that its request for access had pursued the exclusive purpose of gaining access to the documents on which the decision to terminate the contract had been based. It had been the Commission that had referred to documents nos 1-16 as being relevant in this context. In the complainant's view, the fact that the Commission now referred to further allegations against Mr W. suggested that the Commission had terminated the contract (also) for reasons other than the one set out in the letter the Commission had sent at the time. There was no base for denying access to the relevant documents. The Ombudsman should therefore try and make the Commission grant access to documents nos 14-16. 3.8 The Ombudsman notes that the Commission has reconsidered the complainant's request for access to documents and has thus complied with his draft recommendation. It therefore remains to be examined whether the measures taken by the Commission in this context are satisfactory. 3.9 It follows from Regulation 1049/2001 that access to documents has to be granted unless one of the exceptions set out in the Regulation can be shown to apply. Good administrative practice therefore requires that an administration wishing to rely on such an exception submits reasonable explanation to show that this exception is indeed applicable. 3.10 The Ombudsman notes that in its detailed opinion, the Commission has submitted detailed explanations to justify its view that full disclosure of the relevant documents would undermine the protection of the integrity of the complainant's expert

456

as well as his commercial interests and would therefore be contrary to Article 4 (1) b and Article 4 (2) first indent of Regulation 1049/2001. The Commission therefore considered that only partial access could be granted, and it provided copies of the expunged versions to which access could be given in its view. In its observations on the Commission's detailed opinion, the complainant pointed out that it did not object to the blanking out of the names of the contact person in the office of the CoDirector's employer and of a person who had corresponded with the expert on behalf of a contractor or to the blanking out of contractual details. In view of this, the Ombudsman considers that his examination has to limit itself to assessing whether the Commission acted properly (1) in blanking out the name of Mr W., the complainant's expert, (2) in blanking out the name of the European Co-Director and (3) in refusing access to documents nos 14-16. 3.11 As regards the first of these issues, the Ombudsman notes that in order to justify its view that there was no reason to justify blanking out the name of the expert, the complainant relied on the fact that the relevant documents described purely factual matters, that is to say the fact that certain services had not been provided in the present case. In the complainant's view, the Commission was unable, on that basis, to answer the question as to whether the fault for this omission lay with the complainant or with the complainant's expert. The Ombudsman agrees that the contents of the relevant documents do not answer this question. However, regard should be had to the fact that these documents make it clear that the complainant's expert - for what ever reason failed to comply with his duties as set out in the revised terms of reference. The Ombudsman therefore considers that the Commission's view that a full disclosure of these documents would undermine the protection of the integrity of the complainant's expert as well as his commercial interests does not appear to be unreasonable. Regard should furthermore be had to the fact that, as the Commission's correctly observed, a document that is made available to an applicant under Regulation 1049/2001 must subsequently be made available to any other applicant. In these circumstances, the Ombudsman takes the view that the Commission acted properly by deciding to grant only partial access, that is to say, by disclosing the relevant documents whilst blanking out the name of the complainant's expert. 3.12 For the sake of completeness, the Ombudsman finds it useful to add that the above appraisal focuses on the way in which the Commission handled the complainant's request for access that was based on Regulation 1049/2001. In its observations on the Commission's detailed opinion, the complainant referred to a lawsuit between itself and its expert that appears to be still pending before German labour courts. In this context, it should be noted that in its initial opinion on the complaint, the Commission stated that the relevant documents could be made available to a judicial authority following a court order to produce them. 3.13 As regards the second of the above-mentioned issues, the Ombudsman notes that the Commission justified its decision to blank out the name of the EU Co-Director with the consideration that disclosing the identity of this person would undermine the protection of his integrity, since his name appeared in connection with allegations

457

concerning the inadequate performance of contractual obligations. However, it is abundantly clear that these allegations were directed at the complainant's expert or the complainant itself, but not at the EU Co-Director. Furthermore, and as the complainant correctly observed, the Commission clearly considers the allegations that were made or transmitted by this person as having been correct. In these circumstances, the Ombudsman fails to see how the need to protect the integrity of this person under Article 4 (1) b of Regulation 1049/2001 could entitle the Commission to delete the name of the EU Co-Director from the documents concerned. Moreover, regard should be had that the Commission had justified its decision of 26 April 2004 to refuse to grant access on the basis of Article 4 (1) b and Article 4 (2) first indent of Regulation 1049/2001 solely with regard to the complainant's expert. Accepting the Commission's argument that the need to protect the interests of the EU Co-Director also had to be considered would thus be tantamount to allowing the Commission to rely on a reason that had not been adduced in the original decision. The Ombudsman considers that this would not be acceptable. 3.14 As to the third of the above-mentioned issues, it should first be noted that in reply to a request for further information made by the Ombudsman, the Commission had listed the documents that belonged to the third category of the documents to which access had been refused. This list comprises documents nos 14-16. In these circumstances, the Ombudsman considers that the Commission would not be able to argue that these documents are not covered by the request for access. The Ombudsman considers that the position that the Commission actually adopted regarding these documents in its detailed opinion is not entirely clear. In its observations on the Commission's detailed opinion, the complainant appeared to assume that the Commission had refused to grant access to these documents on the grounds that they contained (according to the Commission) allegations against the complainant's expert going beyond the one that the Commission had repeatedly made (namely that he had not fulfilled the new tasks, which had been included in the revised terms of reference). The Ombudsman considers that this interpretation of the detailed opinion appears to be reasonable. As regards the substance of the Commission's position, it is true that in his draft recommendation, the Ombudsman pointed out that the Commission had made its argument according to which Mr W. had failed to comply with his duties in its opinion, a publicly accessible document. The Ombudsman had concluded that it was thus difficult to see what further damage disclosure of the relevant documents could do to Mr W.'s right to privacy and integrity or his commercial interests. This reasoning would obviously not apply in the case of further allegations against Mr W. that might not yet have been made public. However, regard should be had to the fact that in his draft recommendation, the Ombudsman also took the view that even on the assumption that Mr W.'s privacy, integrity or commercial interests could be affected by the disclosure of the documents, the Commission had failed adequately to consider the possibility of granting partial access, for example by granting access to versions of the documents in which the name of Mr W. has been blanked out. The Ombudsman

458

considers that this argument continues to be valid and that it would also apply in the situation that the Commission appears to have had in mind when drafting its detailed opinion. It is therefore difficult to see why the Commission should be unable to grant partial access to documents nos 14-16 in the same way as it has granted access to all the other documents, that is to say after having blanked out Mr W.'s name. 3.15 In these circumstances, and whilst acknowledging that in its detailed opinion the Commission has gone a long way towards accommodating his concerns, the Ombudsman continues to believe that the Commission has failed to provide a reasonable explanation for its refusal to grant access to the relevant documents in so far as the name of the EU Co-Director and documents nos 14-16 are concerned. This constitutes an instance of maladministration. 4. Conclusion 4.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: It follows from Regulation 1049/2001 that access to documents has to be granted unless one of the exceptions set out in the Regulation can be shown to apply. Good administrative practice therefore requires that an administration wishing to rely on such an exception submits a reasonable explanation to show that this exception is indeed applicable. In the present case, the Commission has failed to provide a reasonable explanation for its refusal to grant access to the relevant documents in so far as the name of the EU Co-Director and documents nos 14-16 are concerned. This constitutes an instance of maladministration. 4.2 In its observations on the Commission's detailed opinion, the complainant suggested that the Ombudsman should try and make the Commission grant access to documents nos 14-16. It should be noted, however, that the Ombudsman has already made a draft recommendation in the present case. It should be noted that Article 3 (7) of the Statute of the European Ombudsman provides that after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, the Ombudsman shall send a report to the European Parliament and to the institution or body concerned. It is thus clear that the Ombudsman does not have the possibility to issue a further draft recommendation if he considers that the draft recommendation that he made has not been implemented properly. 4.3 In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament was of inestimable value for his work. He added that special reports should therefore not be presented too frequently, but only in relation to particularly important matters where the Parliament was able to take action in order to assist the Ombudsman(8). The Annual Report for 1998 was submitted to and approved by the European Parliament.

459

4.4 The Ombudsman notes that the present case concerns the handling by the Commission of a request for access to documents relating to a specific contract. He further notes that it is not apparent which action the Parliament could take in order to assist the Ombudsman and the complainant in the present case. Given these circumstances, the Ombudsman concludes that it is not appropriate to submit a special report to the Parliament. 4.5 The Ombudsman will therefore send a copy of this decision to the Commission and include a short summary in the annual report for 2005 that will be submitted to the Parliament. The Ombudsman thus closes the case. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Available on the Ombudsman's website (http://www.euro-ombudsman.eu.int). OJ 2001 L 145, p. 43. The Commission provided a list of these documents. OJ 2001 L 8, p. 1.

(2)

(3)

(4)

The draft recommendation is available on the Ombudsman's website (http://www.euro-ombudsman.eu.int).

(6)

(5)

OJ 2001 L 145, p. 43. OJ 2001 L 8, p. 1. Annual Report for 1998, pp. 27-28.

(7)

(8)

460

Decision of the European Ombudsman on complaint 1423/2004/ELB against the European Commission

Strasbourg, 28 April 2005

Dear Mr L., On 12 May 2004, you made a complaint to the European Ombudsman against the European Commission concerning the Commission's failure to carry out its duties as Guardian of the Treaty vis--vis France so that it complies with Community law. On 3 June 2004, I forwarded the complaint to the President of the Commission. On 6 August 2004, the Commission sent a reply. On 22 September 2004, I requested clarification on the content of this reply. The Commission sent its final opinion on 1 October 2004. I forwarded it to you with an invitation to make observations, which you sent on 15 November 2004. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the facts can be summarised as follows: The complainant, a French citizen, has been a temporary agent of the European Parliament since July 1980. From 1968 until 1980, he worked in the agricultural sector in France. On 27 July 1992, France signed an agreement with the European Communities allowing the transfer of national pension rights of EU officials and temporary agents. However, this agreement does not apply to employees in the agricultural sector. On 4 September 2002, the complainant lodged a complaint with the Commission against France under Article 226 of the EC Treaty for failure to comply with European law(1). On 12 November 2002, the Commission registered his complaint and informed the complainant that discussions were being held between the Commission and the French authorities. The French authorities had finalised a draft modification to the agreement which was to be examined by the French National Assembly in the first quarter of 2003. Consequently, the Commission considered that it was not appropriate to launch an infringement procedure against France for failure to comply with Article 11 (2) of Annex VIII to the Staff Regulations(2). It also stated that it would follow up the issue.
461

On 11 December 2002, the complainant wrote to the Commission, taking note of the proposed modification to the agreement. On 22 September 2003, the complainant wrote to the Commission requesting information on the adoption of the modification to the agreement. He received no reply. On 30 March 2004, he again wrote to the Commission with the same request. Apparently, the complainant received no reply to this letter. On the same day, the complainant lodged a complaint with the Ombudsman on the same subject (1006/2004/ELB). This complaint was declared inadmissible as no document was attached to it. In the present complaint, the complainant alleges that: (1) the Commission failed to properly deal with his complaint against France and to ensure that France complies with Community law, in particular Article 11 (2) of Annex VIII to the Staff Regulations; (2) the Commission failed to reply to his letters dated 22 September 2003 and 30 March 2004.

THE INQUIRY The Commission's opinion The Commission's opinion can be summarised as follows: The complainant has been a temporary agent working for the European Parliament since July 1980. He should shortly retire. Since the signature in 1992 of an agreement between the French government and the Commission concerning the transfer of pension rights of Community officials and temporary agents from a national pension system, he has been requesting the transfer of his pension rights acquired when he was working in France (the relevant French body is the Mutualit Sociale Agricole, MSA). Until now, MSA always refused to follow up his request, arguing that the agreement did not provide for the case of agricultural employees. As regards the letters sent by the complainant to the Commission on 22 September 2003 and 30 March 2004, the Commission indicates that it never received the first letter. On 24 May 2004, it sent a reply to the second letter. The Commission apologises for the delay in sending the reply, which is due to the transfer to other duties of the official to whom the letter originally was sent.

462

As regards the substance of the complaint, the letter of 24 May 2004 explained that, following the changes in the Staff Regulations and notably in the provisions concerning transfer of pension rights, some elements of the agreements and national implementing regulations would have to be reviewed to ensure consistency with the provisions of the Staff Regulations. It also stated that a French pension fund, which was not mentioned in the agreement of 1992 (Caisse nationale des Barreaux Franais, CNBF), showed the way to the application by all pension funds of the Community regulation. CNBF, in co-ordination and with the agreement of the French Ministry of Social Affairs, is considering the possibility to transfer pension rights irrespective of the ratification by France of an agreement in this regard. This possibility will be based on the direct applicability of Article 11 (2) of Annex VIII to the Staff Regulations. In its letter, the Commission advised the complainant to contact the administration for which he is working (the European Parliament) inviting it to address a reasoned reminder to MSA, in which the European Parliament should suggest that the example of CNBF be followed. On 15 June 2004, the Commission sent a reminder to MSA about the files filed by officials of the Commission and which had been left in abeyance until the ratification by France of a special agreement on transfer of pension rights. The Commission hopes that a concerted solution can be found quickly with French agricultural pension funds and considers that it is not appropriate for the moment to bring the matter before the European Court of Justice. However, if no result is achieved in the short term, the Commission will review its position and bring the matter before the Court. The Commission subsequently sent the Ombudsman a copy of a letter from MSA dated 29 July 2004. MSA indicated that, according to the Ministry of Agriculture, provisions similar to the ones adopted for the general regime could be adopted for agricultural employees. It also stated that practical modalities would have to be adapted and that the requests submitted to MSA would be re-examined as soon as possible. The complainant's observations In his observations, the complainant thanked the Ombudsman for the handling of his complaint. He took note of the Commission's commitments.

THE DECISION 1. Alleged failure to properly deal with a complaint against France 1.1 The complainant, a French citizen, has been a temporary agent of the European Parliament since July 1980. From 1968 until 1980, he worked in the agricultural sector in France and acquired pension rights with the Mutualit Sociale Agricole

463

(MSA). The complainant unsuccessfully sought to transfer his pension rights in accordance with Article 11 (2) of Annex VIII to the Staff Regulations. He then made an "Article 226" complaint against France to the Commission. The complainant alleges that the Commission failed to properly deal with his complaint against France and to ensure that France complies with Community law, in particular Article 11 (2) of Annex VIII to the Staff Regulations. 1.2 According to the Commission, following the changes in the Staff Regulations and notably in the provisions concerning transfer of pension rights, some elements of the agreements and national implementing regulations will have to be reviewed to ensure consistency with the provisions of the Staff Regulations. The Commission explains that a French pension fund, which was not mentioned in the agreement, showed the way to the application by all pension funds of the Community regulation. This pension fund, in co-ordination and with the agreement of the French Ministry of social affairs, is considering the possibility to transfer pension rights irrespective of the ratification by France of an agreement in this regard. This possibility will be based on the direct applicability of Article 11 (2) of Annex VIII to the Staff Regulations. The Commission advised the complainant to contact the administration for which he is working (the European Parliament) inviting it to address a reasoned reminder to MSA. The Commission has also itself sent a reminder to MSA about the files filed by officials of the Commission and which had been left in abeyance until the ratification by France of a special agreement on transfer of pension rights. The Commission hopes that a concerted solution can be found quickly with French agricultural pension funds and considers that it is not appropriate for the moment to bring the matter before the European Court of Justice. However, if no result is achieved in the short term, the Commission will review its position and bring the matter before the Court. The Commission subsequently informed the Ombudsman of the reply sent by MSA to the Commission, in which MSA states that provisions similar to the ones adopted for the general regime could be adopted for agricultural employees and that the requests submitted to MSA will be re-examined as soon as possible. 1.3 The Ombudsman considers it useful to recall that his inquiry is limited to investigating whether the Commission, in its handling of the Article 226 complaint, has acted in accordance with the rules and principles binding upon it and within the limits of its legal authority. The Ombudsman's investigation does not imply a review of the question whether French legislation may be contrary to Community law. The Ombudsman also recalls that the Commission has the right, but not the duty, to commence proceedings before the Court of Justice for a declaration that a Member State has failed to fulfil its obligations under Community law(3).

464

Furthermore, in accordance with the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(4), the Commission undertook to inform the complainant of the action taken in response to a complaint and of the outcome of the investigation. 1.4 The Ombudsman notes that the Commission had prompt contacts with the French authorities following the complainant's complaint and his further request and informed the complainant on 12 November 2002 and on 24 May 2004 of its actions as regards the transfer of pension rights. The Ombudsman further notes that the Commission, in its last letter to the complainant, explained in detail the present situation. He finally observes that the Commission itself contacted MSA to obtain the transfer of the pension rights of its own officials. 1.5 On the basis of the available evidence concerning the on-going activity of the Commission to ensure compliance with Community law in this matter, the Ombudsman considers that the Commission does not appear to have gone outside the limits of its legal authority as "Guardian of the Treaty". 1.6 The Ombudsman notes that the Commission is fully aware that the complainant is due soon to retire. The Ombudsman also notes that the Commission indicated that it will follow up the case, and that it might review its position and bring the matter before the Court if no result is achieved in the short term. The Ombudsman therefore understands that the Commission is committed to finding a solution that will enable the complainant to enjoy his rights as a servant of the European Communities. The Ombudsman considers it useful to make a further remark to this effect below. 1.7 In these circumstances, the Ombudsman considers that no further inquiries into the present complaint are justified. The Ombudsman points out that the complainant has the right to renew his complaint to the European Ombudsman in future, if necessary. 2. Alleged failure to reply to letters 2.1 The complainant alleges that the Commission failed to reply to his letters dated 22 September 2003 and 30 March 2004. 2.2 The Commission indicates that it never received the letter dated 22 September 2003. On 24 May 2004, it sent a reply to the letter dated 30 March 2004. The Commission apologises for the delay in sending the reply, which is due to the transfer to other duties of the official to whom the letter originally was sent. 2.3 The Ombudsman recalls that, according to the European Code of Good Administrative Behaviour, "[e]very letter or complaint to the Institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period (...) if a letter or a complaint to the Institution is addressed or transmitted to a Unit which has no competence to deal with it, its

465

services shall ensure that the file is transferred without delay to the competent service of the Institution". The Ombudsman notes that the Commission never received one of the complainant's letters and replied on 24 May 2004 to the letter dated 30 March 2004. He also notes that the Commission apologised, in its opinion, for the delay in replying. The Ombudsman therefore concludes that no further inquiry is necessary as regards this aspect of the complaint. 3. Conclusion For the reasons given above, the Ombudsman considers that no further inquiries into the complaint are justified. The Ombudsman therefore closes the case.

FURTHER REMARK The Ombudsman notes that the Commission is fully aware that the complainant is due soon to retire. The Ombudsman also notes that the Commission indicated that it will follow up the case, and that it might review its position and bring the matter before the Court if no result is achieved in the short term. The Ombudsman therefore understands that the Commission is committed to finding a solution that will enable the complainant to enjoy his pension rights as a servant of the European Communities. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Article 226 of the EC Treaty empowers the Commission to bring proceedings against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law. Article 11 (2) of Annex VIII to the Staff Regulations stated that: "An official who enters the service of the Communities after: - leaving the service of a government administration or of a national or international organisation; or - pursuing an activity in an employed or self-employed capacity;
(2) (1)

466

shall be entitled upon establishment to have paid to the Communities either the actuarial equivalent or the flat-rate redemption value or retirement pension rights acquired by virtue of such service or activities. In such case the institution in which the official serves shall, taking into account his grade on establishment, determine the number of years of pensionable service with which he shall be credited under its own pension scheme in respect of the former period of service, on the basis of the amount of the actuarial equivalent or sums repaid as aforesaid."
(3)

See, for example, Case 247/87 Star Fruit v. Commission [1989] ECR 291, paragraph 12; Case C-191/95 Commission v. Germany [1998] ECR I-5449, paragraph 46. COM (2002) 141 final, OJ 2002 C 244, p. 5.

(4)

467

Decision of the European Ombudsman on complaint 1700/2004/MF against the European Investment Bank

Strasbourg, 22 June 2005

Dear Mr A., On 29 May 2004, you made a complaint to me against the European Investment Bank concerning its behaviour towards you. On 30 June 2004, I forwarded the complaint to the President of the European Investment Bank. The European Investment Bank sent its opinion on 21 July 2004. On 4 October 2004, I forwarded it to you with an invitation to make observations. On 30 October 2004, you sent me a further letter in which you submitted that the EIB's opinion was not legally binding since it had not been signed by its President. In my reply of 18 November 2004, I informed you that you had received the Spanish translation of the EIB's opinion, which was not signed, by contrast with the English original version. I enclosed with my letter the English original version of the opinion of the EIB. On 30 December 2004, you sent your observations on the opinion of the European Investment Bank. I am writing now to let you know the results of the inquiries that have been made. I apologize for the length of time it has taken to deal with your complaint.

THE COMPLAINT According to the complainant, the relevant facts are as follows: The complainant had been short-listed by the European Investment Bank (EIB), following a selection procedure organised by the latter. In an e-mail of 30 May 2002, the complainant requested information on the possibilities he had to begin to work at the EIB in June 2002. On 30 May 2002, the Head of the Resources Unit of the EIB sent two e-mails which were received by the complainant. In the first e-mail, the Head of the Resources Unit wrote "[i]l est devenu compltement fou" ("he has gone completely mad") and noted that the complainant had sent his application to more than 18 Heads of Units. In the second e-mail, the Head of the Resources Unit advised the complainant to stop writing any further e-mails. He then made the following statement: "Je vous prie de bien
468

vouloir vous abstenir de ces actions qui ne sont pas forcment favorables votre candidature" ("I would be grateful if you could refrain from these actions which are not bound to be in favour of your application"). He further informed the complainant that, given that all the applications were centralised in the Resources Unit, all the requests for information sent by the latter to the vice-Presidents of the EIB had been forwarded to him. On 7 July 2003, the complainant wrote to the Head of the Resources Unit and requested his application to be re-examined. On 17 July 2003, the Head of the Resources Unit confirmed the EIB's decision not to recruit the complainant. On 7 July 2003, the complainant further lodged a complaint with the Secretary General of the EIB on the basis of Article 16 of the Code of Good administrative behaviour of the EIB, alleging a lack of respect towards him. He further alleged that from the date of his first interview with the Head of the Resources Unit on 14 June 2002 to the one of his complaint lodged with the Secretary General of the EIB on 7 July 2003, he only was able to apply to three posts for which the EIB organised a selection procedure, despite the fact that he had been informed that he had been shortlisted. On 24 July 2003, the EIB replied that the behaviour of the Head of the Resources Unit was regrettable and had been due to the insistence of the complainant on applying for a job at the EIB. The Secretary General of the EIB stated that the first e-mail of 30 May 2002 had been sent by mistake to the complainant in reply to his requests for information on his application, as a copy. On 29 May 2004, the complainant lodged a complaint against the EIB with the Ombudsman. He alleged that the Head of the Resources Unit of the EIB had behaved in an abusive and intimidatory way towards him in his two e-mails dated 30 May 2002. The complainant further alleged that the two reply letters dated 17 and 24 July 2003 had contained false information and/or had not replied correctly to his allegations. The complainant further criticized the recruitment procedure of the EIB, stating that all incoming applications were centralised in the Resources Unit of the EIB.

THE INQUIRY The opinion of the European Investment Bank The opinion of the European Investment Bank on the complaint was in summary as follows: As regards the complainant's first allegation, the EIB sincerely regretted the content of the first of its two e-mails sent to him on 30 May 2002. The EIB however maintained the position explained in its reply dated 24 July 2003, in which the Secretary General of the EIB had underlined the immaculate attitude of the Head of the Resources Unit towards candidates throughout his long practice as the person responsible for

469

recruiting in the Human Resources department of the EIB. The e-mail of the Head of the Resources Unit had merely been the result of the pressure created by the complainant's recurring requests for information about his application. As for the second mail dated 30 May 2002, the complainant had not been subjected to any kind of intimidation. The Head of the Resources Unit had simply sent this e-mail to uphold a negative reply to the complainant's applications, as he was continuing to ask about the possibility of joining the EIB in June 2002. These persistent requests to join the EIB in June 2002 were surprising given that a negative reply had already been addressed to the complainant on 13 May 2002 and that no new recruitment procedure had been organised in the meantime. Concerning the recruitment procedure of the EIB that the complainant had criticized, all incoming applications were centralised in the Resources Unit of the EIB. It had to be pointed out that the recruitment procedure, as explained in detail in the letter of the Secretary General of the EIB dated 24 July 2003, was chosen in order to avoid improper influences and to guarantee, in the selection of staff, the principles of equality of treatment, non-discrimination and respect for fundamental rights as required by the Treaty. As regards the complainant's second allegation, in his letter dated 17 July 2003, the Head of the Resources Unit had voluntarily refrained from expressing an opinion about the complainant's allegations and referred to the reply that the Secretary General of the EIB had sent on 24 July 2003 to the complainant's letter dated 7 July 2003 . It seemed difficult to find false information in this letter or an incorrect reply to the complainants allegations. Regarding the letter dated 24 July 2003 from the Secretary General of the EIB, the veracity of the information provided to the complainant had to be underlined. This reply had been the result of a conscientious discussion with the services involved in the recruitment procedure and it had responded accurately to the complainants allegations. The complainant's observations In his observations, the complainant maintained his complaint and made in summary the following further comments; The EIB wrongly stated that the Head of the Resources Unit had had an immaculate attitude towards candidates and specifically towards the complainant. The EIB wrongly stated that he had made recurring requests for information about his application for a post. Each of his requests for information had been made with thorough respect, as regards both their contents and the number of addressees. This could be checked in the EIB's archives.

470

It was not true that he had not been subjected to any kind of intimidation in the second mail dated 30 May 2002 of the EIB. The tone used by the Head of the Resources Unit had been arrogant and false, and this had led to an unquestionable feeling of threat. It was not true that the EIB had respected the principle of non-discrimination and fundamental rights in its recruitment procedure. The EIB wrongly stated that he had requested to work for it in June 2002. He had always acted in a courteous way when applying for a post to the EIB.

THE DECISION 1. The scope of the Ombudsman's inquiry 1.1 The complainant had been short-listed by the European Investment Bank (EIB) following a selection procedure organised by the latter. In an e-mail of 30 May 2002, the complainant requested information on the possibilities he had to begin to work at the EIB in June 2002. On 30 May 2002, the Head of the Resources Unit sent two emails which were received by the complainant. In the first e-mail, the Head of the Resources Unit wrote "[i]l est devenu compltement fou" ("he has gone completely mad") and noted that the complainant had sent his application to more than 18 Heads of Units. In the second e-mail, the Head of the Resources Unit advised the complainant to stop writing any further e-mails. He then made the following statement: "Je vous prie de bien vouloir vous abstenir de ces actions qui ne sont pas forcment favorables votre candidature" ("I would be grateful if you could refrain from these actions which are not bound to be in favour of your application"). On 29 May 2004, the complainant lodged a complaint against the EIB with the Ombudsman. He alleged that the Head of the Resources Unit of the EIB had behaved in an abusive and intimidatory way towards him in his two e-mails dated 30 May 2002. The complainant further alleged that the two reply letters dated 17 and 24 July 2003 had contained false information and/or had not replied correctly to his allegations. These were the allegations on which the Ombudsman asked the EIB to submit an opinion. 1.2 In his complaint to the Ombudsman, the complainant further criticized the recruitment procedure of the EIB, stating that all incoming applications were centralised in the Resources Unit of the EIB. However, the Ombudsman notes that it did not clearly emerge from the complaint that this point constituted an allegation on which the complainant wished the Ombudsman to ask the EIB to submit an opinion. This point was therefore not taken up for inquiry. The complainant, who was informed accordingly, did not express his disagreement with the Ombudsman's approach. 1.3 In its opinion, the EIB nevertheless expressed its view on this issue. It stated that, concerning the recruitment procedure of the EIB that the complainant had criticized,

471

all incoming applications had been centralised in the Resources Unit of the EIB. It had to be pointed out that this recruitment procedure, as explained in detail in the letter of the Secretary General of the EIB dated 24 July 2003, had been chosen in order to avoid improper influences and to guarantee, in the selection of staff, the principles of equality of treatment, non-discrimination and respect for fundamental rights as required by the Treaty. 1.4 The Ombudsman notes that, in his observations, the complainant submitted that the EIB had failed to respect the principle of non-discrimination and fundamental rights during its recruitment procedure. 1.5 Pursuant to Article 195 of the Treaty establishing the European Community, "the European Ombudsman shall conduct inquiries for which he finds grounds". 1.6 On the basis of the information available to him, the Ombudsman considers that the complainant has not submitted sufficient evidence to show that EIB has failed to respect the principle of non-discrimination and fundamental rights during its recruitment procedure. In view of the above, the Ombudsman considers that there appear to be no grounds to extend the scope of the present inquiry so as to cover this aspect of the case. However, the complainant is free to renew his complaint to the Ombudsman on this issue, provided that he submits sufficient evidence to support his allegation. 2. The allegedly abusive and intimidatory behaviour of the Head of the Resources Unit of the European Investment Bank 2.1 In his complaint, the complainant alleged that the Head of the Resources Unit had behaved in an abusive and intimidatory way towards him in his two e-mails dated 30 May 2002. 2.2 The EIB stated that it sincerely regretted the content of the first of its two e-mails sent to the complainant on 30 May 2002. The EIB however maintained the position explained in its reply dated 24 July 2003, in which the Secretary General of the EIB had underlined the immaculate attitude of the Head of the Resources Unit towards candidates throughout his long practice as the person responsible for recruiting in the Human Resources department of the EIB. The e-mail of the Head of the Resources Unit had merely been the result of the pressure generated by the complainant's recurring requests for information about his application. As for the second mail dated 30 May 2002, the complainant had not been subjected to any kind of intimidation. 2.3 Principles of good administration require that the institution should act in a courteous way in its dealings with citizen. 2.4 As far as the first e-mail dated 30 May 2002 is concerned, the Ombudsman considers that its content would clearly constitute inappropriate language if it had been deliberately addressed to the complainant. The Ombudsman notes, however, that in

472

his reply dated 24 July 2003 to the complainant's letter dated 7 July 2003, the Secretary General of the EIB explained that the relevant e-mail had been sent to the complainant by mistake. The complainant does not appear to dispute this. The Ombudsman further notes that, in the letter dated 24 July 2003 of its Secretary General and in its opinion, the EIB expressed its regrets as to the content of this email. The Ombudsman therefore considers that there appear to be no grounds for further inquiries into this part of the allegation. 2.5 As far as the second e-mail dated 30 May 2002 is concerned, the Ombudsman notes that the Head of the Resources Unit of the EIB asked the complainant in this email not to send any more e-mails requesting information on his application. He then made the following statement: "Je vous prie de bien vouloir vous abstenir de ces actions qui ne sont pas forcment favorables votre candidature" ("I would be grateful if you could refrain from these actions which are not bound to be in favour of your application"). 2.6 Article 11 of the Code of Good Administrative Behaviour of the European Ombudsman(1) provides that "[t]he official shall act impartially, fairly and reasonably". Article 12 (1) provides that "[t]he official shall be service-minded, correct, courteous and accessible in relations with the public. When answering correspondence, telephone calls and e-mails, the official shall try to be as helpful as possible and shall reply as completely and accurately as possible to questions which are asked." The Ombudsman does not exclude that the EIB might have been entitled to ask the complainant not to send further e-mails requesting information on his application if the latter had previously sent a disproportionate number of such queries. In the present case, however, it is not clear whether this was the case. The complainant disputes this and the EIB has not submitted evidence to prove its view. It should in any event be noted that, in its e-mail, the EIB established a link between the complainant's e-mails and his application. The Ombudsman considers that this could be understood by the average reader as constituting a threat, namely that the complainant's application could be rejected if he continued to send e-mails requesting information on it. In the Ombudsman's view, the fact that the complainant may have submitted frequent requests for information as to the state of his application to the EIB did not entitle the latter to threaten to reject this application. The Ombudsman further notes that the EIB did not submit any explanation which could have justified this behaviour. By using terms which could be understood as conveying a threat when answering the complainant's request for information on his application, the EIB has failed to respect Articles 11 and 12(1) of the Code of Good Administrative Behaviour of the European Ombudsman. This constitutes an instance of maladministration, and a critical remark will be made in this regard.

473

3. The allegation that the two reply letters dated 17 and 24 July 2003 had contained false information and/or had not replied correctly to the complainant's allegations 3.1 The complainant alleged that the two reply letters dated 17 and 24 July 2003 had contained false information and/or had not replied correctly to his allegations. The Ombudsman understands that, in this context, the complainant referred to the replies given to both his letters of 7 July 2003 addressed to the Head of the Resources Unit and to the Secretary General of the EIB respectively. 3.2 The EIB stated that, in his letter dated 17 July 2003, the Head of the Resources Unit had voluntarily refrained from expressing an opinion on the complainant's allegations and had referred to the reply that the Secretary General of the EIB would send to the complainant's letter dated 7 July 2003. It appeared difficult to find false information in this letter or an incorrect reply to the complainants allegations. Regarding the letter dated 24 July 2003 from the Secretary General of the EIB, the veracity of the information provided to the complainant had to be underlined. This reply had been the result of a conscientious discussion with the services involved in the recruitment procedure and it had replied accurately to the complainants allegations. 3.3 As regards the letter dated 17 July 2003, the Ombudsman notes that in his letter of 7 July 2003 to the Head of the Resources Unit, the complainant alleged that the EIB had unfairly decided not to recruit him for the post of junior lawyer in Labour Law. The complainant further criticized the behaviour that the Head of the Resources Unit had in his view adopted towards him as regards his application for this post. In his letter of 17 July 2003, the Head of the Resources Unit explained to the complainant that, given that his complaint lodged under Article 16 of the Code of Good Administrative Behaviour of the EIB was pending before the Secretary General and contained the same allegations, he would not deal with them. The Ombudsman further notes that in his letter dated 17 July 2003, the Head of the Resources Unit of the EIB informed the complainant that he had not been considered for the post because "other short-listed candidates had been considered objectively more qualified than you for the post. This elimination did not constitute in no [sic] way a negative assessment of your application and, even less of yourself." The Ombudsman notes that the complaint lodged by the complainant with the Secretary General under Article 16 of the Code of Good Administrative Behaviour was precisely directed at the Head of the Resources Unit. In these circumstances, the Ombudsman considers that the position adopted by the Head of the Resources Unit, i.e. to refer to the reply that the Secretary General of the EIB would send to the complainant's letter dated 7 July 2003, appears to be reasonable. Concerning the allegation that the letter of the Head of the Resources Unit contained false information and/ or did not reply correctly to the complainant's allegation that

474

the EIB had unfairly decided not to recruit him for the post of junior lawyer in Labour Law, the Ombudsman considers that the complainant has not provided him with sufficient information that could substantiate this view. Concerning the behaviour of the Head of the Resources Unit towards the complainant, this point has been already dealt with in the above paragraph 2.4. In view of the above, the Ombudsman considers that the complainant has not established that the letter dated 17 July 2003 of the Head of the Resources Unit contained false information and/or had not replied correctly to his allegations. 3.4 As to the letter dated 24 July 2003, the Ombudsman notes that in his letter of 7 July 2003 to the Secretary General of the EIB, the complainant alleged that the EIB had unfairly decided not to recruit him for the post of junior lawyer in Labour Law. He further alleged that from the date of his first interview with the Head of the Resources Unit on 14 June 2002 to the date of the complaint, he had only been able to apply for three posts for which the EIB organised a selection procedure. The complainant stated that, as far as his applications for the two first posts were concerned, he had accepted the decisions of the Selection Board not to recruit him. However, as far as his application for the post of junior lawyer in Labour Law was concerned, he could not accept the decision of the Selection Board not to recruit him. The complainant mentioned an interview of 24 June 2003 with the Head of the Resources Unit. During this interview, the complainant had been informed that he had not been short-listed for the post of junior lawyer in Labour Law because the shortlisted candidates had been considered to be more qualified than the complainant. The complainant further repeated his allegation concerning the behaviour that the Head of the Resources Unit had in his view adopted towards him as regards his application for the post of junior lawyer in Labour Law. 3.5 As to the allegation related to the behaviour that the Head of the Resources Unit had, in the complainant's view, adopted towards him, this point has already been discussed (see paragraph 2.4 of the present decision). The Ombudsman therefore considers that there is no need to deal with this point in this part of the decision. 3.6 The Ombudsman further notes that, in his reply of 24 July 2003, the Secretary General informed the complainant that, as far as his application for the post of junior lawyer in Labour law was concerned, the Head of the Resources Unit had presented to him, during the interview of 24 June 2003, the different steps of the selection procedure, taking into consideration the required profile, the complainant's profile and the short-listed candidates' profile. The Ombudsman notes that the Secretary General further informed the complainant that, after having been short-listed, following an interview and professional tests, he had not been chosen for the post.

475

Concerning the allegation that the letter of the Secretary General of 24 July 2003 contained false information, the Ombudsman considers that the complainant has not provided him with sufficient information that could substantiate this view. Concerning the alleged failure to reply correctly to the complainant's allegation pursuant to which the EIB had unfairly decided not to recruit him for the post of junior lawyer in Labour Law, the Ombudsman notes that the EIB informed the complainant of the situation relating to his application. The EIB further informed the complainant that he had not been considered for the post because "other short-listed candidates had been considered objectively more qualified than you for the post. This elimination did not constitute in no [sic] way a negative assessment of your application and, even less of yourself." Pursuant to the Community courts' case-law, the Selection Boards have wide discretionary powers in assessing applicants and this assessment can only be set aside in case of manifest violation of a rule or principle binding upon the Selection Board. In view of the information submitted by the complainant, the Ombudsman finds no evidence which might call into question the decision of the EIB not to recruit the complainant for the post of junior lawyer in Labour Law. 3.7 The European Ombudsman therefore concludes that there appears to have been no maladministration by the EIB as regards this allegation. 4. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: Article 11 of the Code of Good Administrative Behaviour of the European Ombudsman(2) provides that "[t]he official shall act impartially, fairly and reasonably". Article 12 (1) provides that "[t]he official shall be service-minded, correct, courteous and accessible in relations with the public. When answering correspondence, telephone calls and e-mails, the official shall try to be as helpful as possible and shall reply as completely and accurately as possible to questions which are asked." The Ombudsman does not exclude that the EIB might have been entitled to ask the complainant not to send further e-mails requesting information on his application if the latter had previously sent a disproportionate number of such queries. In the present case, however, it is not clear whether this was the case. The complainant disputes this and the EIB has not submitted evidence to prove its view. It should in any event be noted that, in its e-mail, the EIB established a link between the complainant's e-mails and his application. The Ombudsman considers that this could be understood by the average reader as constituting a threat, namely that the complainant's application could be rejected if he continued to send e-mails requesting information on it. In the Ombudsman's view, the fact that the complainant may have submitted frequent requests for information as to the state of his application to the EIB did not entitle the latter to threaten to reject this application. The Ombudsman further

476

notes that the EIB did not submit any explanation which could have justified this behaviour. By using terms which could be understood as conveying a threat when answering the complainant's request for information on his application, the EIB has failed to respect Articles 11 and 12(1) of the Code of Good Administrative Behaviour of the European Ombudsman. This constitutes an instance of maladministration. Given that this aspect of the case concerned procedures relating to specific events in the past, it was not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case. The President of the European Investment Bank will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------The European Code of Good Administrative Behaviour is available on the European Ombudsman's website at the following address: http://www.euroombudsman.eu.int/code/en/default.htm The European Code of Good Administrative Behaviour is available on the European Ombudsman's website at the following address: http://www.euroombudsman.eu.int/code/en/default.htm
(2) (1)

477

Decision of the European Ombudsman on complaint 1733/2004/OV against the European Parliament

Strasbourg, 18 July 2005

Dear Mr E., On 2 June 2004, you made a complaint to the European Ombudsman concerning an alleged failure by the European Parliament to respect the deadlines laid down in the Staff Regulations and to compensate you for certain legal costs that you had incurred. On 21 June 2004, I forwarded the complaint to the President of Parliament. Parliament sent its opinion on 4 October 2004. I forwarded it to you with an invitation to make observations, which you sent on 28 October 2004. On 4 May 2005, I wrote to Parliament in order to seek a friendly solution to your complaint. I informed you of this in a letter of the same date. Parliament sent its additional opinion on 8 June 2005. My office forwarded it to you by e-mail on 9 June 2005 with an invitation to make observations, which you sent on 10 June 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are as follows: In his decision of 31 October 2002 in complaint 1462/2001/ME - which concerned the lack of reinstatement of the complainant by Parliament after a period of unpaid leave(1) - the European Ombudsman considered that, as regards the complainant's claim to obtain compensation for loss of income and pension rights, the complainant should address Parliament directly. On 14 November 2002, the complainant made a request for compensation to the Secretary-General of Parliament. On 2 December 2002, Parliament acknowledged receipt of the letter which was registered on 20 November 2002 indicating that an absence of reply within four months (i.e., by 20 March 2003) would constitute an implied rejection decision against which an appeal can be made in accordance with Article 91 of the Staff Regulations. Having received no reply at the end of this four month period the complainant engaged a lawyer on 21 March 2003 in order to initiate proceedings against Parliament before the Court of First Instance. On 8 April 2004, the complainant's lawyer presented a draft appeal to the complainant and asked for his observations on it. On 2 May 2003, six weeks after the expiry of the deadline fixed in
478

the Staff Regulations, the Secretary-General of Parliament replied to the complainant accepting his request. The complainant consequently asked his lawyer to terminate his work on the appeal and to send his bill for the expenses. By letter of 11 May 2003, the complainant informed Parliament that he was satisfied with Parliament's reply, but that Parliament should pay the costs of his lawyer. By letter of 10 August 2003, the complainant sent his lawyer's bill (EUR 2 116) to Parliament asking to be reimbursed. Having received no reply from Parliament, the complainant informed Parliament by letter of 17 September 2003 that he had paid the bill himself, but that he maintained his claim for reimbursement of the amount. By letter of 8 October 2003, Parliament promised that it would reply to the request, probably by the beginning of November 2003. By letter of 19 January 2004 - more than 8 months after the complainant's request - Parliament finally refused to pay the bill, because the complainant had consulted the lawyer during the administrative phase of the procedure. By letter of 28 January 2004, the complainant made an appeal, on the basis of Article 90 (2) of the Staff Regulations, against Parliaments refusal to re-imburse him. As grounds for the appeal, he stated that he had consulted his lawyer after the administrative procedure had concluded, since the absence of a reply from Parliament was equivalent to an implied rejection decision. By letter of 7 May 2004, Parliament confirmed its earlier decision not to reimburse the complainant. On 2 June 2004, the complainant made the present complaint to the Ombudsman. The complainant's allegations can be summarised as follows: 1) Parliament has failed to respect the deadlines foreseen in the Staff Regulations. 2) Parliament has failed to compensate the complainant for the costs linked to consulting a lawyer.

THE INQUIRY Parliament's opinion In its opinion, Parliament made the following comments: As regards the first allegation, Parliament observed that, by decision of 2 May 2003, the Secretary-General of Parliament concluded that there was legal liability on the part of the institution for the late reinstatement of the complainant. By letter of 11 May 2003, the complainant expressed his satisfaction with this decision, but reserved his right to request the reimbursement of the lawyer's costs, without however providing proof of these costs. The complainant's letter of 11 May 2003 does not constitute a request in the sense of Article 90 (1) of the Staff Regulations, as it made reference to a

479

hypothetical situation in the future. Parliament considered this letter as a pure warning and did not take a position on it. It was only by letter of 10 August 2003 that the complainant sent documentation to Parliament including his lawyer's bill of 25 June 2003. The complainant himself indicated in his letter that he was now in the possession of the bill and that he claimed the reimbursement of it. By letter of 17 September 2003, the complainant underlined that Parliament had not reacted to his request for reimbursement of the lawyer's costs as mentioned in the letter of 10 August 2003. The four months deadline to reply to this request started therefore to run on the day of the reception of the request (around 11 August 2003) and expired around 11 December 2003. The Secretary's General reply of 19 January 2004 was thus made approximately one month after the expiration of the deadline foreseen in Article 90 (1) of the Staff Regulations. Parliament however draws the attention to the phrasing of Article 90 (1) of the Staff Regulations according to which: "if at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph". The complainant had thus, as of 12 December 2003, the possibility to make an appeal against the implied rejection decision. The Secretary-General's reply of 19 January 2004, made after the expiry of the four month deadline, re-opened a new deadline of three months for the complainant to contest the decision. This interpretation has been confirmed by the established case-law of the Court of First Instance(2). Therefore, although the reply to the complainant's request was made about one month after the expiry of the four month deadline foreseen in Article 90 (1) of the Staff Regulations, the legal consequences of such a delay, although regrettable, are clearly mentioned in the Staff Regulations and did not prevent the complainant from exercising his statutory rights. As regards the second allegation, Parliament pointed out that neither the Staff Regulations nor the case-law obliges the institutions to reimburse the costs of the precontentious (administrative) phase of the procedure. Both the Court of Justice and the Court of First Instance have held that the costs of consulting a lawyer in the phase of the administrative appeals have to be distinguished from the lawyer's costs during the judicial phase. It is therefore the complainant's own choice which cannot be imputed to the institution (Case 54/77, Herpels/Commission, [1978] ECR 585, paragraphs 45 and 48, Case T84/91, Meskens/Parliament [1993] ECR SC, II-757).

480

The complainant is of the opinion that when he consulted his lawyer, the administrative phase was already terminated. This position cannot be sustained, as the judicial phase logically starts with the submission of an appeal to the competent court. As the initial request for indemnification of the complainant was a request in the sense of Article 90 (1) of the Staff Regulations, Parliament has acted in accordance with the case-law when it rejected as unfounded the claim for reimbursement of the lawyer's costs. The complainant's observations The complainant observed that his complaint refers to several failures by Parliament to respect the deadlines: namely Parliament's letter of 2 May 2003 which replied to his letter of 14 November 2002 (with a delay of 5 and a half months) and Parliament's letter of 19 January 2004 which replied to the complainant's letters of 15 June 2003 (with a delay of 7 months) and 10 August 2003 (with a delay of 5 and a half months). The complainant also observed that Parliament also failed to respect the deadlines in its correspondence with the Ombudsman. The complainant observes that Parliament pointed out that he did not make an appeal against the implied rejection decision. The complainant however followed the instructions given to him in Parliament's letter of 2 December 2002 which stated that a reply would be sent within 4 months, i.e., by 20 March 2003, and that an absence of reply by that date would constitute an implied rejection decision against which an appeal could be lodged in accordance with Article 91 of the Staff Regulations, i.e., by going to the Court of First Instance. The complainant therefore gave the green light to his lawyer to prepare an appeal. He annexed to his observations a copy of the draft appeal, which concerned the start of the judicial procedure. According to the complainant, if he had pursued his appeal and won the case, Parliament would have had to reimburse all of his lawyer's costs whether incurred before or after the start of the judicial procedure.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the opinion and observations, the Ombudsman considered that there could be an instance of maladministration by Parliament. In accordance with Article 3(5) of the Statute(3), he therefore wrote to the President of Parliament on 4 May 2005 to propose a friendly solution on the basis of the following analysis of the issue in dispute between the complainant and Parliament:

481

1. Preliminary remarks concerning the scope of the inquiry The Ombudsman would like to clarify that the present complaint concerns the procedural aspects of the complainant's request for compensation for loss of income and pension rights due to his late reinstatement, namely the allegations that a) Parliament failed to respect the deadlines of the Staff Regulations and b) refused to reimburse the costs of the complainant's lawyer. The request for compensation as such was accepted by the Secretary General of Parliament in his letter of 2 May 2003 in which, in his capacity as Appointing Authority, he proposed a friendly solution to the complainant. In his letter of 11 May 2003, the complainant replied that he was satisfied with Parliament's proposal and made some further comments. 2. The alleged failure to respect the deadlines of the Staff Regulations and to compensate the complainant for the costs linked to consulting a lawyer 2.1 The complainant alleges that Parliament has failed 1) to respect the deadlines foreseen in the Staff Regulations and 2) to compensate him for the costs linked to consulting a lawyer in order to prepare an appeal to the Court of First Instance. With regard to the first allegation, the complainant pointed out that Parliament replied only on 2 May 2003 to his request of 14 November 2002, and only on 19 January 2004 to his letters of 15 June and 10 August 2003. With regard to the second allegation, the complainant pointed out that he followed the instructions given to him in Parliament's letter of 2 December 2002 which stated that a reply would be sent within four months, namely by 20 March 2003, and that an absence of reply by that date would constitute an implied rejection decision against which an appeal could be lodged in accordance with Article 91 of the Staff Regulations, which means going to the Court of First Instance. Being confronted with an implied rejection decision, the complainant asked his lawyer to prepare an appeal to the Court of First Instance and annexed the draft appeal to his observations. 2.2 Parliament stated that the complainant's initial request for compensation(4) was a request in the sense of Article 90 (1) of the Staff Regulations which was replied to by letter of 2 May 2003. As regards the complainant's request of 10 August 2003, Parliament observed that the four months deadline to reply to it started to run on the day the request was received (around 11 August 2003) and expired around 11 December 2003. The Secretary General's reply of 19 January 2004 was thus made approximately one month after the expiration of the deadline foreseen in Article 90 (1) of the Staff Regulations. Parliament further argued that neither the Staff Regulations nor the case-law oblige the institutions to reimburse the costs of the pre-contentious (administrative) phase of the procedure. Both the Court of Justice and the Court of First Instance held that the costs of consulting a lawyer in the phase of the administrative appeals have to be distinguished from the lawyer's costs during the judicial phase, which starts by the submission of an appeal to the competent court.

482

2.3 The Ombudsman points out that, in its opinion, Parliament appears to comment on the deadlines under the Staff Regulations for making an Article 90 (2) appeal with regard to the complainant's request of 10 August 2003 for reimbursement of his lawyers fees, whereas the deadlines that are relevant for the Ombudsmans examination of the present complaint are those for Parliaments reply to the complainants request for compensation dated 14 November 2002. 2.4 The Ombudsman notes - from the chronology of the letters in the file - that the complainant's decision of 21 March 2003 to engage a lawyer and to ask him to prepare an appeal against Parliament to the Court of First Instance was taken as a result of the complainant having received no answer within four months, i.e by 20 March 2003, to his request of 14 November 2002 to the Secretary General to be compensated. The complainant's two allegations are therefore closely linked to each other. 2.5 The Ombudsman secondly notes that the complainant and Parliament seem to disagree about which provision of Title VII ("Appeals") of the Staff Regulations was applicable to the complainant's letter of 14 November 2002. In its opinion, Parliament argued that the complainant's request for compensation was a request in the sense of Article 90 (1) of the Staff Regulations. The complainant however understood his request to be a complaint in the sense of Article 90 (2) of the Staff Regulations, the rejection (or implied rejection) of which within four months would thus logically lead to the next step foreseen by the Staff Regulations, namely an appeal to the Court of First Instance in accordance with Article 91. 2.6 It appears now from the correspondence in the file that Parliament itself considered the complainant's letter of 14 November 2002 to be a complaint in the sense of Article 90 (2). The complainant was indeed confirmed in his belief that he had made an "Article 90 (2)" appeal by Parliament's letter of acknowledgement of 2 December 2002 which acknowledged the receipt of his complaint of 14 November 2002 on the basis of Article 90 (2) of the Staff Regulations and pointed out that failure to reply within 4 months, namely by 20 March 2003, would constitute an implied rejection decision against which the complainant could lodge an appeal in accordance with Article 91 of the Staff Regulations. It appears therefore unfair for Parliament to argue in its opinion that the complainant's initial request for compensation was a request in the sense of Article 90 (1), and not an appeal in the sense of Article 90 (2) of the Staff Regulations. 2.7 As regards now the complainant's first allegation that Parliament did not respect the deadlines foreseen in the Staff Regulations, the Ombudsman notes that Parliament replied to the complainant's "appeal" of 14 November 2002 only on 2 May 2003, namely one month and 12 days after the four months deadline of 20 March 2003 foreseen in Article 90 (2) of the Staff Regulations. In this regard the Ombudsman observes the following: 2.8 According to Article 90 (2) of the Staff Regulations, the Appointing Authority shall notify the person who has lodged an internal complaint of its reasoned decision

483

within four months. This is in line with the principles of good administration. It is true that Article 90 (2) of the Staff Regulations provides that the lack of reply within the period of four months laid down in this provision is deemed to constitute a negative decision. This rule is meant to protect the citizen where an administration does not comply with its legal obligations. It does not in any way give the administration the right to depart from the obligations resulting from the principles of good administration. In these circumstances, the Ombudsman concludes that Parliaments failure to reply within four months to the complainant's complaint of 14 November 2002 constitutes an instance of maladministration. 2.9 As regards the complainant's second allegation, namely Parliament's refusal to reimburse the costs he incurred in consulting a lawyer, the Ombudsman firstly notes that, if Parliament had sent its (positive) answer within the four month deadline foreseen in Article 90 (2) of the Staff Regulations, it would not have been necessary for the complainant to consult a lawyer and to incur costs for preparing an appeal to the Court of First Instance. However, being confronted with an absence of reply and thus an implied rejection decision, the next reasonable step for the complainant, as indicated to him as well in Parliament's acknowledgement letter of 2 December 2002 and considering that parties must be represented by a lawyer in order to lodge cases with the Court of First Instance - was to consult a lawyer in order to prepare his appeal. 2.10 On the basis of the above, the Ombudsman concludes that, because of Parliament's delayed answer to the complainant's letter of 14 November 2002, which was registered as a complaint on the basis of Article 90 (2) of the Staff Regulations, the complainant has incurred costs which could have been avoided by a timely reply by Parliament and that the complainant acted reasonably in doing so. In these circumstances, it appears to be unfair for Parliament to refuse to compensate the complainant for the costs he reasonably incurred as a result of Parliament's maladministration. The proposal for a friendly solution The Ombudsman's proposal for a friendly solution consisted in asking Parliament to reconsider its refusal to compensate the complainant for the costs he reasonably incurred in consulting a lawyer with a view to proceedings before the Court of First Instance. Parliament's second opinion Parliament, after having considered the Ombudsman's proposal, was pleased to inform him that it could agree to proceed with the reimbursement of the lawyer's costs. Parliament stated that the amount will be transferred to the complainant's bank account in due time.

484

The complainant's second observations The complainant was pleased to inform the Ombudsman that he agreed with the friendly solution which had been reached.

THE DECISION 1. The alleged failure to respect the deadlines of the Staff Regulations and to compensate the complainant for the costs linked to consulting a lawyer 1.1 The complainant alleges that Parliament has failed 1) to respect the deadlines foreseen in the Staff Regulations and 2) to compensate him for the costs linked to consulting a lawyer in order to prepare an appeal to the Court of First Instance. With regard to the first allegation, the complainant pointed out that Parliament replied only on 2 May 2003 to his request of 14 November 2002, and only on 19 January 2004 to his letters of 15 June and 10 August 2003. With regard to the second allegation, the complainant pointed out that he followed the instructions given to him in Parliament's letter of 2 December 2002, which stated that a reply would be sent within 4 months, namely by 20 March 2003, and that an absence of reply by that date would constitute an implied rejection decision against which an appeal could be lodged in accordance with Article 91 of the Staff Regulations, which means going to the Court of First Instance. Being confronted with an implied rejection decision, the complainant thus asked his lawyer to prepare an appeal to the Court of First Instance and annexed the draft appeal to his observations. 1.2 Parliament stated that the complainant's initial request for compensation was a request in the sense of Article 90 (1) of the Staff Regulations which was replied to by letter of 2 May 2003. As regards the complainant's request of 10 August 2003, Parliament observed that the four months deadline to reply to it started to run on the day of the reception of the request (around 11 August 2003) and expired around 11 December 2003. The Secretary's General reply of 19 January 2004 was thus made approximately one month after the expiration of the deadline foreseen in Article 90 (1) of the Staff Regulations. Parliament further argued that neither the Staff Regulations nor the case-law oblige the institutions to reimburse the costs of the pre-contentious (administrative) phase of the procedure. Both the Court of justice and the Court of First Instance held that the costs of consulting a lawyer in the phase of the administrative appeals have to be distinguished from the lawyer's costs during the judicial phase, which starts with the submission of an appeal to the competent court. 1.3 The Ombudsman notes that the complainant's first allegation concerning the alleged failure of Parliament to respect the deadlines foreseen in the Staff Regulations was already dealt with above under point 2.8 of the section entitled "The Ombudsman's efforts to achieve a friendly solution".

485

1.4 As regards the complainant's second allegation that Parliament failed to compensate him for the costs linked to consulting a lawyer, the Ombudsman made a proposal for a friendly solution to Parliament on the basis of the reasoning above in the section "The Ombudsman's efforts to achieve a friendly solution". The proposed friendly solution consisted in asking Parliament to reconsider its refusal to compensate the complainant for the costs he reasonably incurred in consulting a lawyer with a view to proceedings before the Court of First Instance. 1.5 In its additional opinion, Parliament was pleased to inform the Ombudsman that it agreed with the friendly solution proposed and would proceed with the reimbursement of the complainant's lawyer's costs, the amount of which would be transferred to the complainant's bank account in due time. The complainant agreed with the friendly solution that had been reached. 2. Conclusion Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been agreed between Parliament and the complainant. The Ombudsman therefore closes the case. The President of Parliament will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------The complainant was finally reinstated in the Danish Translation Division as from 1 October 2002.
(2) (1)

Case T-34/91, Whitehead/Commission, [1992] ECR-SC II-1723, paragraph 18.

(3)

"As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint". i.e., the complainant's request of 14 November 2002.

(4)

486

Decision of the European Ombudsman on complaint 1737/2004/TN against the European Parliament

Strasbourg, 21 September 2005

Dear Mrs T., On 4 June 2004, a complaint was made to the European Ombudsman on behalf of Svenska Finlands folkting (the Swedish Assembly of Finland) concerning the European Parliament's information campaign in Finland for the European elections held in June 2004. On 17 June 2004, I forwarded the complaint to the President of the European Parliament. Following a reminder from me, Parliament sent its opinion on 30 November 2004. I forwarded it to the Swedish Assembly of Finland with an invitation to make observations, which were sent on 13 January 2005. On 31 May 2005, I made a proposal to the European Parliament for a friendly solution to the complaint. On 30 June 2005, Parliament sent its reply to this proposal. A translation into Swedish of Parliament's reply was sent on 20 July 2005. On 29 August 2005, you informed my services by telephone that the Swedish Assembly of Finland considers that a friendly solution has been achieved. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the Swedish Assembly of Finland (hereafter "the Assembly"), the relevant facts are, in summary, as follows: The Swedish Assembly of Finland is a statutory body working to defend the rights of the Swedish speaking population in Finland. The Assembly points out that Finland has two official languages, Finnish and Swedish, which are both also official languages of the EU. Since the EU citizens have the right to use their country's official languages in their relations with the Community institutions, in Finland this right includes the use of both Finnish and Swedish. Furthermore, the citizens have the right to expect that the European institutions' information activities will be carried out in the official languages of their Member State. However, the Assembly noted that the European Parliament Information Office in Finland only printed in Finnish its posters providing information about the elections to the European Parliament that were due to be held on 13 June 2004. These posters were
487

put up in public places at least in the capital Helsinki and the surrounding area. In an interview in a Finnish newspaper, the Head of the European Parliament Information Office in Finland explained that it had no money to print posters in Swedish to inform about the upcoming European elections. The Assembly does not accept this argument. The Assembly alleges that the European Parliament has failed to post bills in Swedish informing Finnish citizens about the election to the European Parliament on 13 June 2004. The Assembly claims that the European Parliament should take action to correct the alleged act of maladministration.

THE INQUIRY The European Parliament's opinion In its opinion, the European Parliament makes, in summary, the following comments: As a point of principle, the European Parliament Information Office in Finland has a policy of working in both Finnish and Swedish in its day-to-day operations and when providing services to Finnish citizens. The Information Office distributes all official information concerning the decisions and other activities of the European Parliament in Finnish and in Swedish. It answers inquiries (by phone, e-mail, fax and letter) in the language used by the citizen. The staff of the Information Office give public speeches and briefings in both languages at various events. Publications, internet sites and other information about the European Parliament are provided in the two languages or, where permitted, in bilingual versions. Information projects directed exclusively to the Swedish speaking community have also been organised, although this community only represents 5.6 % of the Finnish population. As regards the election campaign held during the period September 2003 - June 2004, the Information Office distributed the centrally produced publications in Finnish and in Swedish, as well as locally produced publications, most of which were in both languages. These publications contained all the essential information about the role and powers of the Parliament and the electoral system. The Information Office co-operated with the Finnish Ministry of Justice, the authority responsible for the European elections in Finland, in sending a joint letter to every first-time voter (80 000) in his or her mother tongue. The Information Office also contacted the central office of the Swedish Assembly of Finland in order to obtain mailing lists to be able to send Swedish language election material to Swedish language organisations and citizens. The Information Office intends to build on this co-operation. The Information Office organised five election debates, of which one was bilingual. A variety of bilingual products, such as pens, balloons, stickers etc., were produced.

488

Some marketing projects were prepared solely in Finnish, one being the street level poster campaign mentioned in the complaint. The posters only contained the text "European elections" and the dates of the elections and details on advance voting. The poster campaign did not contain any new information that had not already been provided in Swedish by other means. During the spring of 2004, the Information Office organised a meeting with all Finnish political parties, including the Swedish People's Party, as well as three further meetings in which an extensive number of citizens' organisations were present. During these meetings, the Information Office's election projects were discussed, including the poster campaign. No critical feedback was expressed during these meetings. However, the Information Office has noted the criticism and will ensure that even greater care is taken in the use of languages in future information campaigns. The complainant's observations In its observations, the Swedish Assembly of Finland makes, in summary, the following remarks: Parliament's opinion is not in tune with Finland's constitution, which provides for equality between the two official languages Finnish and Swedish. The Swedish speakers' percentage of the population therefore lacks relevance. The Assembly further notes that the equality between the two languages is upheld in national elections in Finland and there is therefore no reason to depart from this practice in European elections. The Assembly notes with satisfaction the measures taken to provide information in Swedish about the European elections. However, in its opinion, Parliament has not provided any factual information as to why the posters were not published in both languages. The Assembly therefore maintains its view that the posters should have been published in both Swedish and Finnish.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the European Parliament's opinion and the complainant's observations, the Ombudsman was not satisfied that Parliament had responded adequately to the complainant's allegation and claim. In accordance with Article 3 (5) of the Statute(1), the Ombudsman therefore wrote to the President of the European Parliament to propose a friendly solution on the basis of the following analysis. 1. The complaint, which is made in behalf of the Swedish Assembly of Finland, concerns the European Parliament's information campaign in Finland for the European elections held in June 2004. The Assembly argues that Finland has

489

two official languages, Finnish and Swedish, both of which are also official languages of the EU. Finnish citizens therefore have the right to use both these languages in their relations with the Community institutions and they have the right to expect that the institutions' information activities will be carried out in the official languages of their Member State. However, the European Parliament Information Office in Finland only printed in Finnish its posters providing information about the elections to the European Parliament held on 13 June 2004. In an interview in a Finnish newspaper, the Head of the European Parliament Information Office in Finland explained that it had no money to print posters in Swedish to inform about the upcoming European elections. The Assembly alleges that the European Parliament has failed to post bills in Swedish informing Finnish citizens about the election to the European Parliament on 13 June 2004. The Assembly claims that the European Parliament should take action to correct the alleged act of maladministration. 2. The European Parliament argues that its Information Office in Finland has a policy of working in both Finnish and Swedish when providing services to, and answering inquiries from, Finnish citizens. Publications and other information about the European Parliament are provided in the two languages or, where permitted, in bilingual versions. Information projects directed exclusively to the Swedish speaking community have also been organised, although this community only represents 5.6 % of the population. As regards the election campaign for the 2004 European elections, Parliament argues that the Information Office distributed the centrally produced publications in Finnish and in Swedish, as well as locally produced publications, most of which were in both languages. These publications contained all the essential information about the role and powers of the Parliament and the electoral system. Some marketing projects were prepared solely in Finnish, one being the street level poster campaign. However, this poster campaign did not contain any new information that had not already been provided in Swedish by other means. The Information Office also organised meetings with political parties and citizens' organisations, discussing the Information Office's election projects, including the poster campaign. No critical feedback was expressed during these meetings. However, the Information Office has noted the criticism and will ensure that even greater care is taken in the use of languages in future information campaigns. 3. In response to Parliament's opinion, the Swedish Assembly of Finland argues that Parliament's stance is not in tune with Finland's constitution, which provides for equality between the two official languages Finnish and Swedish. The Swedish speakers' percentage of the population therefore lacks relevance. The Assembly further notes that the equality between the two languages is upheld in national elections in Finland and there is therefore no reason to depart from this practice in European elections. Furthermore, in its opinion, Parliament has not provided any factual information as to why the posters were not published in both languages.

490

4. The Ombudsman has consistently underlined the importance of making European citizens aware of their rights under Community law in order to strengthen the protection of these rights, which is one of the objectives set out in the Treaty on European Union. One of the rights of EU citizens is to vote in elections to the European Parliament. 5. The Ombudsman further recalls that Article 21 of the Charter of Fundamental Rights of the European Union, as solemnly proclaimed by, among others, the President of the European Parliament, prohibits any discrimination based on language. The Ombudsman therefore takes the view that the burden of proof lies on the European Parliament to show that it was appropriate and proportionate for it to publish certain material informing citizens of their right to vote in European elections in only one of two official languages of the Member State concerned, both of which are also official languages of the EU. 6. The Ombudsman considered in the present case that Parliament's opinion did not provide a convincing explanation as to why it did not also publish posters in Swedish informing about the 2004 European elections in Finland. The Ombudsman therefore made a provisional finding of maladministration by the European Parliament and proposed a friendly solution regarding the matter. The proposal for a friendly solution Given that the case concerns a specific event in the past, the Ombudsman suggested that, to promote a friendly solution, Parliament could acknowledge a) that the proportion of the Finnish population which speaks Swedish is not relevant to the status of that language as an official language of the EU, or to its status under the Finnish Constitution; and b) that it would have been appropriate to have published the election posters in question in Swedish as well as in Finnish. The European Parliament's response In reply to the Ombudsman's proposal, Parliament acknowledges a) that the proportion of the Finnish population which speaks Swedish is not relevant to the status of that language as an official language of the EU or to its status under the Finnish Constitution; and b) that it would have been appropriate to have published the election posters in question in Swedish as well as in Finnish. Parliament further explains that its information office in Helsinki will ensure that even greater care is taken in the use of languages for future information campaigns. The complainant's observations On 29 August 2005, the Chairman of the Swedish Assembly of Finland informed the Ombudsman's services that the Assembly considers that a friendly solution to the complaint has been achieved.

491

THE DECISION 1. Parliament's alleged failure to post bills in Swedish 1.1 The Swedish Assembly of Finland alleges that the European Parliament has failed to post bills in Swedish informing Finnish citizens about the election to the European Parliament on 13 June 2004. The Assembly claims that the European Parliament should take action to correct the alleged act of maladministration. 1.2 After careful consideration of the European Parliament's opinion and the Assembly's observations, the Ombudsman found that the burden of proof lies on the European Parliament to show that it was appropriate and proportionate for it to publish certain material informing citizens of their right to vote in European elections in only one of two official languages of the Member State concerned, both of which are also official languages of the EU. The Ombudsman considered that Parliament's opinion did not provide a convincing explanation as to why it did not also publish posters in Swedish informing about the 2004 European elections in Finland. The Ombudsman therefore made a provisional finding of maladministration by the European Parliament, to which he proposed a friendly solution, suggesting that Parliament could acknowledge a) that the proportion of the Finnish population which speaks Swedish is not relevant to the status of that language as an official language of the EU or to its status under the Finnish Constitution; and b) that it would have been appropriate to have published the election posters in question in Swedish as well as in Finnish. 1.3 In response to the Ombudsman's proposal, Parliament acknowledged a) that the proportion of the Finnish population which speaks Swedish is not relevant to the status of that language as an official language of the EU or to its status under the Finnish Constitution; and b) that it would have been appropriate to have published the election posters in question in Swedish as well as in Finnish. Parliament further explained that its information office in Helsinki will ensure that even greater care is taken in the use of languages for future information campaigns. 1.4 Following Parliament's response to the proposal for a friendly solution, the Swedish Assembly of Finland informed the Ombudsman that it considers that a friendly solution to the complaint has been achieved. 2. Conclusion Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been achieved. The Ombudsman therefore closes the case. Enclosed with this decision, the Swedish Assembly of Finland will find the European Parliament's response to the Ombudsman's proposal for a friendly solution, including a translation into Swedish.

492

The President of the European Parliament will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

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

493

Decision of the European Ombudsman on complaint 1756/2004/MF against the European Parliament

Strasbourg, 13 July 2005

Dear Mr M., On 2 June 2004, you made a complaint to me against the European Parliament concerning access to the decision of the Appointing Authority modifying the place of employment of one of your colleagues. On 30 June 2004, I forwarded the complaint to the President of the European Parliament. On 29 July 2004, the Register Service of the European Parliament informed me that the document to which you requested access was dated 19 November 2003, and not 20 February 2004, as mentioned by mistake in my letter of 30 June 2004 to the European Parliament. On 21 September 2004, the European Parliament sent its opinion on the complaint. On 4 October 2004, I sent you a further letter in which I informed you that the decision of the Appointing Authority, object of the present complaint, was dated 19 November 2003. On 29 October 2004, I forwarded the opinion of the European Parliament to you with an invitation to make observations, which you sent on 10 November 2004. I am writing now to let you know the results of the inquiries that have been made. I apologize for the length of time it has taken to deal with your complaint.

THE COMPLAINT According to the complainant, the relevant facts are as follows: The complainant is an official of the European Parliament. On 20 February 2004, the complainant contacted the Register Service of the European Parliament and made a request for access to the decision of the Appointing Authority modifying the place of employment of one of his colleague, Ms G.C., to Saragossa (Spain) as of 1 January 2004. This document is dated 19 November 2003. In its reply of 3 March 2004, the Register Service of the European Parliament informed the complainant that he had the possibility to request access to the relevant document entitled "Decision of the Appointing Authority modifying the place of
494

employment of Ms G.C. to Saragossa (Spain) as of 1 January 2004" directly from the Appointing Authority. On the same day, the complainant requested the Secretary General of the European Parliament to give him access to the decision of the Appointing Authority. In his reply of 31 March 2004, the Secretary General stated that the complainant had to contact "the Director of Personnel" of the European Parliament. On 2 April 2004, the complainant wrote to the Director of Personnel and requested to have access to the document. On 23 March 2004, the complainant lodged a complaint with the European Ombudsman (complaint 901/2004/MF). He stated that the Secretary General of the European Parliament had failed to give him access to the relevant decision. He claimed that he should be given access to this document. The Ombudsman understood that the complainant's request for access had been made under Regulation (EC) No 1049/2001(1). Given that the complainant did not appear to have made the confirmatory application foreseen in this regulation, the Ombudsman decided to close the case on the basis of article 2(4) of his Statute on 28 April 2004. On 2 June 2004, the complainant again wrote to the European Ombudsman. He stated that, given that the Parliament had failed to reply to his letter dated 2 April 2004, which constituted, in his view, a refusal of his application for access, he had made the confirmatory application for access to documents on 3 May 2004. On 12 May 2004, the Director of Personnel had proposed a meeting. The complainant had refused this proposal, stating that he preferred the procedure under Regulation (EC) No 1049/2001 to be followed. On 19 May 2004, the Director of Personnel had informed him that he intended to give him access to the relevant document, unless the Head of the unit in charge of data protection had any objections. The complainant's letter dated 2 June 2004 was registered as a new complaint by the European Ombudsman (complaint 1756/2004/MF). In this complaint, the complainant alleged that the European Parliament had failed to give him access to the relevant decision within the deadline foreseen in Regulation 1049/2001. The complainant claimed that the European Parliament should give him access to the relevant document.

THE INQUIRY The Parliament's opinion The opinion of the European Parliament on the complaint was in summary as follows:

495

In case of requests for access to documents made by officials of the European Parliament, and given that the latter benefit from a privileged access to the different sources of information, namely via the Documentation Centre and the Archives department, the Register Service of the Parliament advised the applicants not to use the procedure set out in Regulation 1049/2001 when the request for access concerned documents already made public. The aim of such an advice was to rationalize the treatment of the requests for access and to focus the efforts of the Register Service on the ever increasing number of requests for access to documents coming from citizens. On 20 February 2004, the complainant had contacted the Register Service and made a request for access to the document entitled "Decision of the Appointing Authority modifying the place of employment of Ms G.C. to Saragossa (Spain) as of 1 January 2004". Given that, in principle, the decisions of the Appointing Authority were published, the Register Service, on 3 March 2004, had informed the complainant that he had the possibility to request access to the said document directly from the Appointing Authority. The complainant had further been informed that, in case he should have difficulties obtaining the document from the Appointing Authority, he could request access to the document from the Register Service. In view of the absence of any further communication from the complainant, the Register Service had closed the case. On 3 March 2004, the complainant had referred to the Appointing Authority in order to request access to the document. His request had not been dealt with within the legal framework of Regulation 1049/2001. The deadline foreseen in Regulation 1049/2001 had therefore not been taken into consideration and the Register Service had not been informed of the outcome of the complainant's request. Given that the DG in charge of giving access to the document had noted that the latter contained personal data, it had asked the Data Protection Officer to give an opinion on the application of the relevant Community legislation (Regulation (EC) No 45/2001(2)) to the document to which the complainant had requested access. The Data Protection Officer had noted that the document to which the complainant had requested access contained personal data pursuant to Regulation 45/2001, and that its disclosure was governed by the exception set out in Article 4(1) point b) of Regulation 1049/2001. The Data Protection Officer had proposed that the document be disclosed, with the exception of parts of the document covered by the relevant exception, pursuant to Article 4(6) of Regulation 1049/2001. The Ombudsman's letter dated 30 June 2004(3) sent to the then President M. Cox, had been brought to the attention of the Register Service on 19 July 2004. The Register Service had then noted that the document to which the complainant had requested access had not yet been forwarded to him. It had subsequently made the relevant approaches in order that an answer could be given to the complainant as soon as possible.

496

On 9 August 2004, an official letter signed by the Secretary General of the European Parliament had been sent to the complainant. The document to which the complainant had requested access had been enclosed. Parts of the document covered by the legislation on data protection had been blanked out. The Parliament had then received a reply from the complainant in which the latter had expressed the view that the change of the place of employment of Ms. G.C. had probably been the object of a decision of the Appointing Authority prior or simultaneous to the one dated "13 November 2003"(4). The complainant therefore requested access to this document. Given that this document did not exist, the complainant had been informed accordingly in a letter of the Secretary General dated 31 August 2004. The legal uncertainty which resulted from the lack of hierarchy between the Staff Regulations, Regulation 1049/2001 and Regulation 45/2001 explained the lack of consistency in the treatment of the complainant's request. It had to be pointed out that appropriate measures had been taken in order to enable the different services of the Parliament to deal rapidly with requests for access to documents, either by answering directly to the request in case of documents already made public, or by forwarding the request to the Register Service responsible for the application of the procedure set out in Regulation 1049/2001. The complainant's observations In his reply, the complainant maintained his complaint and made in summary the following further comments; The decision of the Appointing Authority concerning the change of the place of employment of Ms. G.C. to Spain as from 1 January 2004 had never been published, in contrast with other decisions of the Appointing Authority modifying the place of employment of an official, which are published in accordance with Article 25 of the Staff Regulations(5). On 20 February 2004, he had made a request for access to the decision of the Appointing Authority concerning the change of the place of employment of Ms. G.C. to the Register Service of the European Parliament. Following this request, he had successively received: -an e-mail of 3 March 2004 from the Register Service in which he had been advised to refer directly to the Appointing Authority; a letter from the Secretary General dated 31 March 2004 informing him that the relevant decision had been taken on a provisional basis and asking him to contact the Director of Personnel; a letter from the Director of Personnel of 12 May 2004 in which the latter had expressed his regrets that, for inexplicable reasons, the complainant had

497

not received his letter dated 6 April 2004, and in which the Director of Personnel had invited the complainant to a meeting in his office on 18 May 2004; a letter dated 17 May 2004 from the Director of DG Personnel and Social Affairs in which the latter had informed him that he intended to give him access to the document requested as soon as possible, unless the Head of the Department for the protection of personal data had any objections; a letter dated 6 July 2004 from the Director of Personnel in which a copy of a decision of the latter authorising Ms. G.C. to work in Spain had been enclosed; a letter dated 9 August 2004 from the Secretary General in which a copy of the decision of the Appointing Authority dated 19 November 2003 authorising Ms. G. C. to work in Spain had been enclosed; following his confirmatory application sent to the Secretary General on 11 August 2004, a letter of 31 August 2004 informing him that there was no specific decision of the Appointing Authority modifying the place of employment of Ms. G. C.

Six months after his confirmatory application for access to documents, he had thus received a copy of the decision of the Appointing Authority dated 19 November 2003 concerning the change of the place of employment of Ms. G.C. as from 1 January 2004. Parts of the document had been deleted in view of the protection of personal data. He had not received the specific decision of the Appointing Authority modifying the place of employment of his colleague given that such a decision did not exist. In his view, however, only a specific decision of the Appointing Authority could lead to the change of place of employment of Ms G.C. If such a specific decision did not exist, there was an infringement of the rules related to the change of employment of officials and other agents. In the meantime, the change of the place of employment of Ms. G.C. to Spain which had been decided on a provisional basis had been extended as from 1 July 2004 for six months. The decision on the extension had not been published.

THE DECISION 1. The scope of the Ombudsman's inquiry 1.1 On 20 February 2004, the complainant, an official of the European Parliament, requested the Register Service of the European Parliament to give him access to the

498

decision of the Appointing Authority modifying the place of employment of one of his colleagues, Ms. G. C. On 2 June 2004, the complainant lodged a complaint with the European Ombudsman. He alleged that the European Parliament had failed to give him access to the relevant decision within the deadline foreseen in Regulation 1049/2001. 1.2 In its opinion, the European Parliament stated that, on 9 August 2004, an official letter signed by the Secretary General of the European Parliament had been sent to the complainant. The document to which the complainant had requested access had been enclosed. 1.3 In his observations, the complainant put forward that he had not received the specific decision of the Appointing Authority modifying the place of employment of his colleague given that such a decision did not exist. However, in the complainant's view, only a specific decision of the Appointing Authority could lead to the change of employment of Ms G.C. If such a specific decision did not exist, there was an infringement of the rules related to the change of employment of officials and other agents. The complainant further put forward that in the meantime, the change of the place of employment of Ms. G.C. to Spain which had been decided on a provisional basis had been extended for six months, as from 1 July 2004. The decision on the extension had not been published. The complainant thus appeared to make new allegations. 1.4 Concerning the allegation that the complainant had not received the specific decision of the Appointing Authority modifying the place of employment of his colleague, the Ombudsman notes that in its opinion, the Parliament stated that such a decision did not exist and that the complainant had been informed accordingly in a letter of the Secretary General dated 31 August 2004. The Ombudsman notes that the decision of the Appointing Authority dated 19 November 2003 authorized the complainant's colleague, Ms G.C., to go and work in Spain, as of 1 January 2004, for a six-month period of time, eventually renewable. In the light of this decision, it is difficult to see what further decision should have been needed to enable Ms G.C. to work in Spain. The Ombudsman considers that the complainant has not submitted sufficient arguments or evidence to support his view that such another decision ought to exist. In these circumstances, the Ombudsman considers that the position adopted by the Parliament pursuant to which such a decision did not exist appears to be correct. Therefore, there appear to be no grounds for further inquiries into this aspect of the complaint. The Ombudsman however notes that, in his observations, the complainant put forward that if such a specific decision did not exist, there was an infringement of the rules related to the change of employment of officials and other agents. He also stated that the decision on the extension of the change of the place of employment of Ms. G.C. to Spain for six months had not been published. The Ombudsman notes that these allegations were not included in the original complaint. He takes the view that it does

499

not appear to be appropriate to extend the scope of this inquiry so as to include these new allegations presented in the complainants' observations because the complainant does not appear to have exhausted the internal remedies foreseen in Article 90 (2) of the Staff Regulations. The complainant is free to lodge a new complaint with the Ombudsman after having exhausted the internal remedies. 2. The allegation that the European Parliament had failed to give the complainant access to the relevant document within the deadline foreseen in Regulation 1049/2001 2.1 The complainant alleged that the European Parliament had failed to give him access to the decision of the Appointing Authority modifying the place of employment of one of his colleague, Ms G.C., to Saragossa (Spain) as of 1 January 2004 within the deadline foreseen in Regulation 1049/2001. 2.2 The Parliament stated that, on 20 February 2004, the complainant contacted the Register Service of the European Parliament and made a request for access to the relevant document. On 3 March 2004, the Register Service of the European Parliament had informed the complainant that he had the possibility to request access to the relevant document directly from the Appointing Authority. The complainant had further been informed that, in case he should have difficulties in obtaining the said document, he could request access to the document from the Register Service. On 3 March 2004, the complainant had requested the Secretary General of the European Parliament to give him access to the relevant document. On 31 March 2004, the Secretary General had informed the complainant that he had to contact the Director of Personnel of the European Parliament. On 2 April 2004, the complainant had written to the Director of Personnel and had requested to have access to the document. On 3 May 2004, the complainant had requested access to the document entitled "Decision of the Appointing Authority modifying the place of employment of Ms G.C. to Saragossa (Spain) as of 1 January 2004". On 9 August 2004, an official letter signed by the Secretary General of the European Parliament had been sent to the complainant. The document to which the complainant had requested access had been enclosed. Parts of the documents covered by the legislation on data protection had been blanked out. The Parliament stated that the legal uncertainty which resulted from the lack of hierarchy between the Staff Regulations, Regulation 1049/2001 and Regulation 45/2001 explained the lack of consistency in the treatment of the complainant's request. 2.3 The Ombudsman notes that, in his observations, the complainant pointed out that six months after his confirmatory application for access had been made, he had received a copy of the decision of the Appointing Authority dated 19 November 2003

500

modifying the place of employment of Ms. G.C. as from 1 January 2004. The Ombudsman therefore considers that access to the document to which the complainant had requested access, namely the decision of the Appointing Authority modifying the place of employment of one of his colleague, Ms G.C., to Saragossa (Spain) as of 1 January 2004, had been granted to him by the Parliament. The Ombudsman further notes that, in its opinion, the Parliament stated that parts of the document covered by the legislation on data protection had been blanked out. In the absence of any comment from the complainant which could call into question the Parliament's decision not to grant him access to certain parts of the document, the Ombudsman considers that access to the relevant document had been properly granted to the complainant by the Parliament. 2.4 The Ombudsman notes that the Parliament submitted, in its opinion, that a legal uncertainty had resulted from the lack of hierarchy between the Staff Regulations, Regulation 1049/2001 and Regulation 45/2001.However, principles of good administration require the institution in any event to act with consistency. Article 10 (1) of the European Code of Good Administrative Behaviour(6) namely states that "[t]he official shall be consistent in his own administrative behaviour as well as the administrative action of the Institution. ()". A further remark will be made as regards the relationship between the legal provisions referred to by Parliament. 2.5 The Ombudsman notes that Article 7(1) of Regulation 1049/2001(7) states that: "An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article". In the present case, the complainant clearly mentioned Regulation 1049/2001 as the legal basis for his request for access to documents on 3 May 2004. In the complainant's view, this request for access was a confirmatory application, given that the Parliament had failed to reply to his letter dated 2 April 2004. In his letter dated 3 May 2004, the complainant had clearly stated that his request for access was a confirmatory application. 2.6 The Ombudsman notes that in his letter of 9 August 2004, the Secretary General of the Parliament stated that "[t]he reply to your application for access to document had been examined in conformity with provisions of Regulation (EC) no 1049/2001". The Ombudsman considers that it clearly emerges from this statement that the Parliament intended to apply Regulation 1049/2001 to the complainant's case. However, the complainant had already lodged what he referred to as a confirmatory application on 3 May 2004. This confirmatory application followed requests for access to the relevant document made by the complainant to the Register Service of

501

the European Parliament on 20 February 2004, to the Secretary General of the European Parliament on 3 March 2004 and to the Director of Personnel on 2 April 2004. In these circumstances, the Ombudsman takes the view that the Parliament should thus have handled the complainant's letter of 3 May 2004 as a confirmatory application in conformity with Regulation 1049/2001 or explained the reasons why it considered that this letter should be treated as a new request for access. The Ombudsman observes however that the Parliament neither handled the complainant's letter of 3 May 2004 as a confirmatory application nor explained the reasons why it considered that this letter should be treated as a new request for access. The Ombudsman further notes that more than three months elapsed between the complainant's letter of request for access to which he referred as a confirmatory application dated 3 May 2004 and the day when the complainant was granted access to the relevant document. In these circumstances, the Ombudsman considers that, in any event, the Parliament's letter of 9 August 2004 in which the document to which the complainant had requested access had been enclosed, was belated. The Ombudsman therefore considers that the Parliament has failed to give access to the relevant document to the complainant within the deadlines foreseen in Regulation 1049/2001. 2.7 In view of the above, the Ombudsman considers that, by failing to give access to the relevant document within the deadlines foreseen in Regulation (EC) No 1049/2001, the European Parliament has failed to act with consistency and to respect Article 10 (1) of the European Code of Good Administrative Behaviour. This is an instance of maladministration. A critical remark will be made in this context. 3. The complainant's claim 3.1 The complainant claimed that the European Parliament should give him access to the relevant document. 3.2 The Ombudsman notes that the complainant finally did obtain access to the document requested, namely the decision of the Appointing Authority dated 19 November 2003 modifying the place of employment of Ms. G.C. as from 1 January 2004. The Ombudsman therefore considers that there is no need for further inquiries into this aspect of the complaint. 4. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

502

By failing to give the complainant access to the relevant document within the deadlines foreseen in Regulation (EC) No 1049/2001, the European Parliament has failed to act consistently and to respect Article 10 (1) of the European Code of Good Administrative Behaviour. This constitutes an instance of maladministration. Given that the complainant finally did have access to the document requested, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case. The President of the European Parliament will also be informed of this decision. Further remark In its opinion, the Parliament stated that there was legal uncertainty resulting from the lack of hierarchy between the Staff Regulations, Regulation 1049/2001 and Regulation 45/2001. The Ombudsman considers that it is not excluded that Parliament could deal with requests for access to documents made by officials without applying the provisions on public access laid down in Regulation 1049/2001, unless the applicant has made it clear that he wishes his request to be dealt with on the basis of that Regulation. In the Ombudsman's view, it is for Parliament to resolve any problems that might arise in this context, either generally or when confronted with a request for access to documents. The Ombudsman considers that Parliament should in any event ensure that a rapid reply is given to the official's request for access. The Ombudsman is confident that the Parliament will take the appropriate measures when dealing with requests for access to documents made by officials in the future. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, Official Journal L 145, 31/5/2001, p. 43. Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12/1/2001, p.1).
(2) (1)

503

(3)

The Ombudsman understands that the European Parliament here refers to the Ombudsman's letter dated 30 June 2004 in which he informed the President of the Parliament of the complaint. The Ombudsman assumes that this reference should read "19 November 2003".

(4)

Article 25 of the Staff Regulations states that: "() Specific decisions regarding appointment, establishment, promotion, transfer, determination of administrative status and termination of service of an official shall be published in the institution to which the official belongs. The publication shall be accessible to all staff for an appropriate period of time". The European Code of Good Administrative Behaviour is available on the European Ombudsman's website at the following address: http://www.euroombudsman.eu.int/code/en/default.htm. See Article 7 of Regulation (EC) No 1049/2001 entitled "Processing of initial applications".
(7) (6)

(5)

504

Decision of the European Ombudsman on complaint 1772/2004/GG against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED.

Strasbourg, 4 May 2005

Dear Ms. X., On 7 June 2004, you made a complaint to the European Ombudsman concerning the Marie Curie Fellowship awarded to you by the European Commission in 1999. On 16 June 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 6 September 2004. I forwarded it to you on 13 September 2004 with an invitation to make observations by 31 October 2004 at the latest. On the occasion of a telephone conversation on 15 November 2004 you informed my services that you intended to submit observations by the end of November 2004. By letter of 15 December 2004, I informed you that any observations should be forwarded to me by 31 December 2004. On 22 December 2004, you sent me observations on the Commission's opinion. On 19 January 2005, I submitted a proposal for a friendly solution to the Commission. The Commission sent its opinion on 6 April 2005, and I forwarded it to you on 13 April 2005 with an invitation to make observations, which you sent on 19 April 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT In 1999, the European Commission awarded the complainant a Marie Curie Fellowship under the Fifth Framework Programme of the European Community for Research, Technological Development and Demonstration Activities (1998-2002). The Commission and the host institution agreed to a contract with a duration from 1 September 2000 until 31 August 2002 (24 months).

505

The complainant took maternity leave from 25 July 2001 until 30 April 2002 (9 months and 7 days). On 30 May 2002, the complainant addressed herself to the host institution, asking for an extension of the date for the submission of her final report until 31 May 2003 (i.e., an extension of 9 months). The complainant stressed that she did not seek any additional payments as part of this extension of her contract. The host institution accepted this proposal. On 14 August 2002, it forwarded the proposal to the Commission for its approval. On 17 October 2002, the Commission sent Amendment No 1 to the contract to the host institution. This amendment, which was signed by the Commission, stated that the Commission accepted the proposal to extend the duration of the contract. However, the amendment extended the duration of the project to 35 months and 4 days from the commencement date (i.e., 1 September 2000). According to the amendment, the final scientific report and the final financial report, as well as the corresponding request for payment, were to cover a period of 23 months from the commencement date. On 6 August 2003, the host institution submitted the complainants final reports covering the period from 1 September 2000 until 31 May 2003 and the request for final payment amounting to EUR 13 472. On 18 November 2003, and in the absence of a response from the Commission, the complainant sent an e-mail to her contact person at the Commission, Mrs C., asking when she could expect her final payment. On 26 November 2003, Mrs N., another Commission official, wrote to inform the complainant that Mrs C. had forwarded the complainants message to her and that she would check and keep the complainant informed. On 25 January 2004, the complainant sent a reminder to the Commission. In an e-mail sent on 28 January 2004, Mrs N. referred to the discrepancy in figures and asked the complainant for clarifications. On 3 February 2004, the complainant replied by fax, explaining that the overall duration of the contract had been 33 months (1 September 2000 until 31 May 2003) and not 35 months and 4 days as erroneously indicated in the amendment to the contract. The complainant pointed out that the monthly allowances had been paid for 21 months and that the allowances for three months were still outstanding. By e-mail of 9 February 2004, the complainant asked Mrs N. to acknowledge receipt of the fax of 3 February 2004. According to the complainant, no reply was given to this message.

506

On 2 March 2004, the complainant sent a further reminder to Mrs N. concerning her case. In her reply of 8 March 2004, Mrs N. apologised for the delay and promised to keep the complainant informed as soon as possible. On 16 March 2004, the complainant sent an e-mail to Mr B., head of the relevant unit in DG Research. According to the complainant, no reply was given to this message. On 4 May 2004, the complainant received a standard message from Mrs N. informing her that the person responsible for managing Marie Curie Fellowship contracts was now Mrs M. On 4 May 2004, the complainant addressed herself to Mrs M. According to the complainant, no reply was given to this message. In her complaint to the Ombudsman lodged in June 2004, the complainant basically alleged that the Commission had failed to handle her final report and her request for final payment properly and in good time. She claimed that the Commission should inform her about the outcome of the assessment of her final report, transfer the final payment based on the correct calculation of a full 24 months fellowship immediately and pay the interest due between the legal deadline for payment (60 days) and the actual date of payment.

THE INQUIRY The Commission's opinion In its opinion, the Commission made the following comments: The relevant contract had, following the usual structure of fellowships awarded under the Fifth Framework Programme, been concluded between the Commission and the host institution. As a result, any issue concerning the implementation of the contract, including its financial aspects, were to be dealt with by the two contracting parties. The host institution then entered into a contract with the fellow covering the terms and conditions for him or her to receive the monthly payments to carry out the work in the project. As a consequence, there was no contractual relationship between the Commission and the fellow. All payments related to the project were provided by the Commission to the host institution, the latter being responsible for the correct implementation of the agreement, including the payment of the monthly allowances to the fellow. This contractual structure meant that the obligation of the host institution to execute the monthly payments to the benefit of the fellow was based on the contract between the host institution and the fellow. For the contract in question, the typically used "General conditions" had been replaced by an agreement dated 9 August 1999.

507

During the first phase, the contract had been managed in a regular and timely way. Then several circumstances had occurred to complicate the case. In a message sent on 7 February 2002, the complainant had confirmed that she had taken maternity leave from 25 July 2001 until 1 February 2002 (6 months and 6 days) and asked for parttime work from 2 February 2002 until 31 May 2002 (3 months and 29 days). The Commission's services informed her of the need for written confirmation from the host institution concerning the duration of the maternity leave, in order to launch the procedure required to extend the duration of the project (and to suspend the work) through an amendment of the contract. Following the request of the Commission's services, the host institution had sent a letter on 14 August 2002 to inform the Commission that the complainant had received the necessary internal approval for the extension of the duration of the project during the maternity leave period. On this basis, the host institution had asked the Commission for a retroactive suspension of the work to be carried out from 24 July 2001 until 30 April 2002 (9 months and 6 days). No reference had been made to a possible period of part-time work. The amendment to the contract had been signed on 17 October 2002. The duration of the project had been indicated, after extension, as being 35 months and 4 days from the project commencement date, i.e. more than the requested extension to 33 months. This had been due to a mistake on the part of the Commission, in that the calculation had been based on the period indicated in the message of the complainant (i.e., 6 months of maternity leave plus about 4 months of part-time work) instead of the period of 9 months and 5 days officially requested by the host institution. Moreover, in the amendment letter it had been stated that both the final reports as well as the corresponding requests for payment should cover a period of 23 months, instead of the 24 months originally agreed. Notwithstanding these errors, no objection had ever been made by the host institution or the complainant. The request for the final payment and the final report had been submitted on 6 August 2003. Given that the miscalculation of the duration of the project had not been detected by the project officer, the financial officer in charge had based the payment analysis on the text of the contract as agreed. In a message sent on 28 January 2004 to the host institution(1), the Commission had raised the inconsistencies between the contract and the final report and asked for clarifications. On 4 February 2004, the complainant had written to the Commission in order to explain that the overall duration of the project had been 33 months and that she had received her monthly instalments only for 21 months and not for the full 24 months. According to the normal procedure, reflected by the "General conditions", the host institution had to advance the salary payments to the fellow and at the moment of the final payment the Commission's services verified that the fellow had been paid.

508

The complainant's subsequent messages asking for updated information had not been answered by the Commission. In hindsight, this was an error. The Commission apologised for not having been able to reply in time due to the complexity of the case. On 10 May 2004, the Commission had asked the host institution by e-mail to regularise the financial report in order to make it possible to provide the final payment due under the contract. Notwithstanding a reminder sent on 12 May 2004, the host institution had not yet replied nor had the correct figures been provided. It appeared that the difficulties in settling the final payment for the contract concerned were linked to a series of unusual misunderstandings and mistakes which had occurred during the preparation of the contract amendment. In addition, during the period concerned several officials dealing with the contract had ended their employment with the Commission and had had to be replaced. This had clearly affected the prompt closure of the relevant file. The Commission recognised the need to regularise the contract regarding the duration of the project. Therefore, a new contract amendment had been prepared and sent to the host institution on 30 July 2004, replacing the earlier one. The final payment had been made to the host institution on 27 July 2004, once the latter had declared that all the allowances due would be paid to the fellow. A copy of the relevant letter from the host institution of 20 July 2004 was submitted by the Commission. In conclusion, several errors had contributed to the delay in making the final payment, including errors on the Commission's side. The Commission regretted this situation and had taken steps to avoid similar situations arising in the future. However, as regards the overall situation it was important to underline the absence of reaction and co-operation from the host institution on several occasions as well as the peculiarities of the relevant contract. These factors, together with the fact that the host institution had allowed the fellow to interact directly with the Commission, had helped to create an unusual situation which could be considered as being the main origin of the delay that had occurred. The complainant's observations In her observations, the complainant noted that the final instalment of her fellowship had in the meantime been paid to her by the host institution that had received the relevant amount from the Commission. However, the complainant submitted that the delay in executing this final payment had primarily been the fault of the Commission. The complainant also argued that the Commission was bound to respond to requests for final payment within a specified period of time and that in the present case the Commission had failed to respond to either the host institution's or her own requests for payment within this period of time.

509

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION The issues in dispute between the Commission and the complainant In her complaint to the Ombudsman lodged in June 2004, the complainant basically alleged that the Commission had failed to handle her final report and her request for final payment properly and in good time. She claimed that the Commission should inform her about the outcome of the assessment of her final report, transfer the final payment based on the correct calculation of a full 24 months fellowship immediately and pay the interest due between the legal deadline for payment (60 days) and the actual date of payment. It emerged from the complainant's observations that the Commission had in the meantime transferred the final payment to the host institution which had then forwarded this sum to the complainant. In these circumstances, the Ombudsman considered that the first two claims raised by the complainant in her complaint had been satisfied in substance and that his inquiry was therefore now limited to examining (1) the complainant's allegation that the Commission had failed to handle her final report and her request for final payment properly and in good time and (2) the complainant's claim for interest. The Ombudsman's preliminary assessment After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman was not satisfied that the Commission has responded adequately to the complainant's allegation and claim. This view was based on the following considerations: 1 In 1999, the European Commission awarded the complainant a Marie Curie Fellowship under the Fifth Framework Programme of the European Community for Research, Technological Development and Demonstration Activities (1998-2002). The Commission and the host institution agreed to a contract with a duration from 1 September 2000 until 31 August 2002 (24 months). The complainant took maternity leave from 25 July 2001 until 30 April 2002 (9 months and 7 days). On 30 May 2002, the complainant addressed herself to the host institution, asking for an extension of the date for the submission of her final report until 31 May 2003 (i.e., an extension of 9 months). The host institution accepted this proposal and forwarded it to the Commission for its approval on 14 August 2002. On 17 October 2002, the Commission sent Amendment No 1 to the contract to the host institution. This amendment, which was signed by the Commission, stated that the Commission accepted the proposal to extend the duration of the contract. However, the amendment extended the duration of the project to 35 months and 4 days from the commencement date (i.e., 1 September 2000). According to the amendment, the final

510

scientific report and the final financial report, as well as the corresponding request for payment, were to cover a period of 23 months from the commencement date. It was undisputed that these figures were erroneous and due to a mistake on the part of the Commission. On 6 August 2003, the host institution submitted the complainants final reports covering the period from 1 September 2000 until 31 May 2003 and the request for final payment amounting to EUR 13 472. However, and despite numerous approaches made by the complainant between November 2003 and May 2004, the relevant amount was only released by the Commission in July 2004. In her complaint to the Ombudsman, the complainant basically alleged that the Commission had failed to handle her final report and her request for final payment properly and in good time. She claimed that the Commission should pay the interest due between the legal deadline for payment (60 days) and the actual date of payment. 2 In its opinion, the Commission acknowledged a series of unusual misunderstandings and mistakes which had occurred during the preparation of the contract amendment. It pointed out, however, that its contract had been with the host institution, not with the complainant. According to the Commission, this contractual structure meant that the obligation of the host institution to execute the monthly payments to the benefit of the fellow was based on the contract between the host institution and the fellow. The Commission also made the following submissions: (1) Neither the host institution nor the complainant had raised objections concerning the errors that the Commission had made in the amendment; (2) during the period concerned several officials dealing with the contract had ended their employment with the Commission and had had to be replaced, something which had clearly affected the prompt closure of the relevant file; (3) the Commission's failure to reply to various inquiries by the complainant - for which the Commission apologised - had been due to the complexity of the case; (4) on several occasions, there had been an absence of reaction and co-operation from the host institution; (5) the host institution had allowed the complainant to interact directly with the Commission. According to the Commission, these factors had helped to create an unusual situation which could be considered as being the main cause of the delay that had occurred. 3 It is good administrative practice to deal with requests for payment properly and promptly. In the present case, the request for a final payment was submitted to the Commission in August 2003 whereas the relevant amount was only released in July 2004. The Ombudsman considers that none of the above arguments submitted by the Commission in order to explain this delay appears to be convincing upon a preliminary assessment. 4 As the Commission correctly observed, a distinction needed to be made between (a) the Commission's contract with the host institution and (b) the contract between the host institution and the complainant. It was also clear that the complainant had no

511

direct claim against the Commission for the payment of her monthly instalments. The Ombudsman noted that the Commission appeared to argue that it would have been for the host institution to pay the instalments for all 24 months even if it had not yet received the relevant funds from the Commission. However, this view was not supported by any evidence. The Commission referred in this context to the "General conditions" that according to it were "typically" used for such contracts (without however submitting a copy of these conditions). However, the Commission itself noted that these "General conditions" had been replaced, for the contract concerning the complainant, by an agreement dated 9 August 1999. No copy of this agreement had been submitted to the Ombudsman. It should however be noted that in its reply of 20 July 2004 to a letter in which the Commission asked the host institution to confirm that the complainant's remaining allowances would be paid, the latter had stated "that, as in the past, we will execute the final payment to the fellow upon its receipt by the Commission". It would thus appear that the standard practice for the host institution was to make payments to the fellow only after having received the necessary funds from the Commission. In the light of the above, the Commission's failure to release the relevant funds to the host institution was thus bound to affect the complainant's interest. 5 As regards the Commission's further arguments, the following remarks should be made: (1) Given that the request for an extension of the duration of the contract that had been submitted to the Commission had been clear and unambiguous, there was no reason for the host institution or the complainant to suspect that the Commission's decision accepting this request would be fraught with errors. The fact that neither the host institution nor the complainant immediately detected these errors and raised them with the Commission does therefore not have any importance for the present complaint. In this context, the Commission appeared to suggest that the mistake it had committed had been due to information that had previously been provided by the complainant. It should be noted, however, that the figures provided by the Commission did not tally. According to the Commission, the complainant had informed it by her e-mail of 7 February 2002 that her maternity leave had lasted from 25 July 2001 until 1 February 2002 (6 months and 6 days) and that she had asked for part-time work from 2 February 2002 until 31 May 2002 (3 months and 29 days). Even if the Commission had based itself on these figures (totalling 10 months and 5 days), it would be difficult to understand why the amendment provided for an extension of the contract to 35 months and 4 days (i.e., 11 months and 4 days more than the original duration). (2) As regards the fact that several officials dealing with the contract may have left the Commission during the relevant period, the Ombudsman considered that such a circumstance could not relieve the Commission of its duty to deal diligently and promptly with requests and inquiries from citizens. It should in any event be noted that the complainant had addressed herself to the Commission on numerous occasions over a considerable period of time (18 November 2003, 25 January 2004, 3 February 2004, 9 February 2004, 2 March 2004, 16 March 2004 and 4 May 2004) without

512

receiving a satisfactory answer. The Ombudsman considered that the Commission had not explained why such a consistent failure to address the complainant's concerns should be acceptable in the given circumstances. (3) As regards the "complexity of the case" to which the Commission referred, it was difficult to see in what it could have consisted. The difficulties in the present case had been due to the erroneous figures contained in the amendment drawn up by the Commission on 17 October 2002. These difficulties could easily have been removed by replacing the erroneous amendment by a new version containing the correct figures (as the Commission had finally done on 30 July 2004). (4) As regards the Commission submission that the host institution had repeatedly failed to react and co-operate, the Ombudsman noted that the request for clarifications that the Commission purported to have sent to the host institution on 28 January 2004 had in fact been sent to the complainant. The only other messages to which the Commission referred in its opinion and that had in effect been sent to the host institution were two e-mails of 10 and 12 May 2004. In these e-mails, the Commission had asked the host institution to change the financial report by amending the number of months for which the monthly allowances "have been paid" from "21" to "35 [months] and 4 days". The Commission was thus effectively asking the host institution to use the erroneous figure for the duration of the contract that the Commission had introduced in its amendment also in the financial report. However, perpetuating (rather than removing) errors could hardly be considered to be good administrative practice. On the basis of the evidence submitted to him, the Ombudsman therefore took the view that the Commission had not established its argument that the host institution had failed to react and co-operate properly. (5) As regards the fact that the complainant had directly approached the Commission, the Ombudsman failed to see how this should explain that the Commission had taken nearly half a year to correct a simple and obvious error. It should also be noted that the Commission itself, by its e-mail of 28 January 2004, had asked the complainant for clarifications, instead of addressing itself to the host institution. 6 In these circumstances, the Ombudsman arrived at the preliminary conclusion that the Commission's failure to handle the final report and the request for final payment concerning the complainant's work at the host institution properly and in good time could be an instance of maladministration. The possibility of a friendly solution Article 3 (5) of his Statute(2) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant. In the absence of a direct contractual link between the Commission and the complainant, the latter did not appear to have a claim for interest on account of late

513

payment. It should be noted, however, that the errors made by the Commission as regards the amendment to its contract with the host institution and the slowness with which these errors had been rectified had resulted in a substantial delay as regards the payment of the complainant's last instalments by the host institution. The Ombudsman therefore made the following proposal for a friendly solution to the Commission: The Commission could consider offering the complainant reasonable financial compensation for the negative effects of the errors that it committed regarding the amendment to its contract with the host institution. The Commission's reply In its reply, the Commission noted that due to several misunderstandings and administrative errors, the final payment to the host institution had been delayed and, as a consequence, the complainant had not received the corresponding salaries in due time. The Commission added that a number of elements identified by the Ombudsman as well as the exceptional circumstances of the case had led it to propose to the complainant, as a friendly solution, the amount of EUR 596,11 corresponding to the interest accrued on the outstanding payment from the due date to the date of the payment. The interest had been calculated on the sum of EUR 13 472 paid on 30 July 2004 and only included interest on arrears. The amount would be paid to the complainant through the host institution. The complainant's observations In her observations, the complainant pointed out that she was very pleased with the Commission's proposal. She asked the Ombudsman, however, to request the Commission to inform her about when, to whom and to which account the payment was to be made. The complainant thanked the Ombudsman and his Office for their swift and professional handling of her case. She added that without the input and the influence of the Ombudsman it would have been extremely difficult for her to resolve this case alone.

THE DECISION 1. Failure to handle fellowship properly 1.1 In 1999, the European Commission awarded the complainant a Marie Curie Fellowship under the Fifth Framework Programme of the European Community for Research, Technological Development and Demonstration Activities (1998-2002).

514

The Commission and the host institution agreed to a contract with a duration from 1 September 2000 until 31 August 2002 (24 months). The complainant took maternity leave from 25 July 2001 until 30 April 2002 (9 months and 7 days). On 30 May 2002, the complainant addressed herself to the host institution, asking for an extension of the date for the submission of her final report until 31 May 2003 (i.e., an extension of 9 months). The complainant stressed that she did not seek any additional payments as part of this extension of her contract. The host institution accepted this proposal. On 14 August 2002, it forwarded the proposal to the Commission for its approval. On 17 October 2002, the Commission sent Amendment No 1 to the contract to the host institution. This amendment, which was signed by the Commission, stated that the Commission accepted the proposal to extend the duration of the contract. However, due to a mistake on the part of the Commission the amendment extended the duration of the project to 35 months and 4 days from the commencement date (i.e., 1 September 2000). On 6 August 2003, the host institution submitted the complainants final reports covering the period from 1 September 2000 until 31 May 2003 and the request for final payment amounting to EUR 13 472. In her complaint to the Ombudsman lodged in June 2004, the complainant basically alleged that the Commission had failed to handle her final report and her request for final payment properly and in good time. She claimed that the Commission should inform her about the outcome of the assessment of her final report, transfer the final payment based on the correct calculation of a full 24 months fellowship immediately and pay the interest due between the legal deadline for payment (60 days) and the actual date of payment. 1.2 From the Commission's opinion on the complaint and the complainant's observations thereon it emerged that the Commission had in the meantime transferred the final payment to the host institution which had then forwarded this sum to the complainant. In these circumstances, the Ombudsman considered that the first two claims raised by the complainant in her complaint had been satisfied in substance and that his inquiry was therefore now limited to examining (1) the complainant's allegation that the Commission had failed to handle her final report and her request for final payment properly and in good time and (2) the complainant's claim for interest. 1.3 On 19 January 2005, the Ombudsman submitted a proposal for a friendly solution to the Commission according to which the latter could consider offering the complainant reasonable financial compensation for the negative effects of the errors that it committed regarding the amendment to its contract with the host institution. 1.4 In its reply sent on 6 April 2005, the Commission noted that due to several misunderstandings and administrative errors, the final payment to the host institution had been delayed and, as a consequence, the complainant had not received the

515

corresponding salaries in due time. The Commission added that a number of elements identified by the Ombudsman as well as the exceptional circumstances of the case had led it to propose to the complainant, as a friendly solution, the amount of EUR 596,11 corresponding to the interest accrued on the outstanding payment from the due date to the date of the payment. The interest had been calculated on the sum of EUR 13 472 paid on 30 July 2004 and only included interest on arrears. The amount would be paid to the complainant through the host institution. 1.5 In her observations, the complainant pointed out that she was very pleased with the Commission's proposal. She asked the Ombudsman, however, to request the Commission to inform her about when, to whom and to which account the payment was to be made. The complainant thanked the Ombudsman and his Office for their swift and professional handling of her case. 2. Conclusion Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been agreed between the European Commission and the complainant. The Ombudsman trusts that the Commission will comply with the complainant's request to inform her about when, to whom and to which account the payment is to be made. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

The Commission has provided a copy of this e-mail message. However, it emerges from this document that it had been sent to the complainant, not to the host institution.

Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsmans Duties, OJ 1994 L 113, p. 15.

(2)

516

Decision of the European Ombudsman on complaint 1798/2004/PB against the European Commission

Strasbourg, 28 January 2005

Dear Mr M., On 8 June 2004, you made a complaint to the European Ombudsman concerning applications for access to documents that you had made to the European Commission. On 12 July 2004, you sent me an additional letter concerning your case. On 19 July 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 4 October 2004. I forwarded it to you with an invitation to make observations, which you sent on 14 October 2004. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT On 22 March 2004, the complainant applied to the Commission for access to documents containing information on security measures adopted following the terrorist attack in Madrid on 11 March 2004. He made his application under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(1). He received no reply from the Commission, and therefore made a confirmatory application on 5 May 2004. In his complaint to the Ombudsman, he stated that he had received no reply to this application either. On 26 May 2004, the complainant applied for access to documents in connection with the Commission's discussions on harmonisation measures on the length of prison sentences. The complainant stated that he had received no reply to this application. On 12 July 2004, the Ombudsman received an additional letter from the complainant. In his letter, the complainant stated that he had received a reply from the Commission, dated 17 June 2004, in reply to his application for access to documents of 22 March 2004. He stated that he nevertheless wished to maintain his complaint as he considered that there had been unjustified delays in the Commission's response to his application. As regards the application of 26 May 2004, the complainant had made a confirmatory application on 16 June 2004. In his letter of 12 July 2004 to the Ombudsman, he stated that he had not yet received a reply to this application.
517

The complainant made the following allegations: 1. There were unjustified delays in the Commission's reply to his application of 22 March 2004. 2. The Commission had failed to reply to his application of 26 May 2004(2).

THE INQUIRY The Commission's opinion The complaint was sent to the Commission, which described its handling of the complainant's applications for documents of 22 March and 26 May 2004. It noted that it had sent a reply to the first application on 3 June 2004 and a reply to the second application on 14 July 2004. The Commission accepted that the relevant deadlines had not been met, and it apologised for this. It stated that the relevant services had experienced a heavy workload and temporary difficulties in managing applications. It added that, as a general policy, it had been decided to give more systematic feedback to citizens in all cases where the reply, be it on grounds of complexity or because of a sudden inflow of questions, may be at risk of not being sent within the deadlines for information replies. With regard to access to documents that are precisely identified, they would continue to benefit from the highest priority. The complainant's observations In his observations, the complainant stated that he fully appreciated the Commission's considerable workload, in particular with regard to requests from citizens. He stated that he naturally accepted the Commission's apologies. The complainant remarked, however, that Article 7(3) of Regulation 1049/2001 contained a duty to inform the applicant of expected delays: "In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given." The complainant also noted that Article 7(2) made it obligatory to send the applicant an acknowledgement of receipt: "An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. ..." The complainant stated that in the light of the Commission's apologies, he considered his complaint settled. However, he asked the Ombudsman to draw the Commission's

518

attention to the provisions quoted above. The complainant thanked the Ombudsman for his intervention.

THE DECISION 1. Introductory remarks 1.1 The complaint concerned two applications for access to documents, made to the Commission under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(3). The first application had been made on 22 March 2004, the second on 26 May 2004. 1.2 In its opinion, the Commission remarked that the complaint, which was dated 8 June 2004, was made only eight working days after the request of 26 May 2004. 1.3 In so far as the Commission's above remark relates to the admissibility of the complaint in respect of the application made on 26 May 2004, the Ombudsman considers that this part of the complaint was indeed inadmissible at the time the complaint was made, as Regulation 1049/2001 regarding public access to documents provides for a fifteen days' deadline to respond to such requests as well as the possibility of making a confirmatory application. However, in the light of the complainant's letter of 12 July 2004 - according to which he had by then taken the relevant procedural steps - the Ombudsman decided that it was consistent with Regulation 1049/2001 to open an inquiry into this part of the complaint as well. 2. Alleged delays and failure to reply in the handling of access requests 2.1 The complainant alleged that there had been unjustified delays in the Commission's reply to his first application of 22 March 2004 for documents and that the Commission had failed to reply to his application of 26 May 2004. 2.2 In its opinion, the Commission apologised for the delays, and explained that these had been due to a heavy workload. It also stated that as a general policy, it had been decided to give more systematic feedback to citizens in all cases where the reply, be it on grounds of complexity, or because of a sudden inflow of questions, may be at risk of not being sent within the deadlines for information replies. 2.3 In his observations, the complainant stated that he accepted the Commission's apologies and considered his case to be settled. He thanked the Ombudsman for his intervention.

519

3. Conclusion It appears from the complainant's observations that he considers his complaint to be settled. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision.

FURTHER REMARKS The complainant asked the Ombudsman to draw the Commission's attention to Article 7 of Regulation 1049/2001 regarding public access to Parliament, Council and Commission documents, according to which the Commission is obliged to send acknowledgements of receipts and to inform applicants about expected delays in the handling of their applications for access. The Ombudsman notes that the Commission is aware that these obligations were not respected in this case. The Ombudsman is confident that the Commission will make the necessary efforts to respect these obligations in the future. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Official Journal 2001 L 145, p. 43.

It should be noted that the letter by which the Commission was asked to give its opinion on the complaint mistakenly referred to "confirmatory application" instead of "application".
(3)

(2)

Official Journal 2001 L 145, p. 43.

520

Decision of the European Ombudsman on complaint 1808/2004/JMA against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 13 December 2005

Dear Mr X., On 9 June 2004, you lodged a complaint with the European Ombudsman against the European Commission on behalf of the firm Y. You describe yourself as the consortium coordinator. Your complaint concerned the Commission's decision not to retain the proposal submitted by Y for the implementation of programme in the area of Research and Development (R&D programme). On 14 September 2004, I informed the President of the Commission of this complaint and I asked him to submit an opinion. On 7 December 2004, the Commission sent me its opinion, which I forwarded to you with an invitation to make observations. On 10 February 2005, you sent me your observations. By letter dated 20 July 2005, I forwarded your observations to the Commission and announced that my services intended to inspect the Commissions file on the case. On 21 September 2005, my services carried out the inspection. A copy of their report to me concerning the inspection of the file was forwarded to you and to the Commission on 13 October 2005. I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with the case.

THE COMPLAINT The complaint was submitted on behalf of a company. The facts of the case according to the complainant are, in summary, as follows: Complaint 239/2004/JMA In January 2004, the complainant lodged a previous complaint with the Ombudsman, which was registered under file number 239/2004/JMA. The complainant alleged that the Commission had acted improperly in its handling of a call for tenders for the second stage of a R&D programme. This major initiative had been largely funded by
521

the Commission. Given the scope of the programme, it had been divided into three different stages. The first stage of the programme (stage 1) had been awarded to one of the complainant's competitors, consortium Z. The complainant explained that, in December 2003, a bid for stage 2 of the programme was submitted by his firm, on behalf of a group of organisations which included independent experts, small and medium size enterprises, laboratories and universities. Even though the complainant was admitted to the selection procedure and appeared to be the only bidder, its bid was excluded following a negative assessment by the evaluators. The complainant took the view that it had been discriminated against, and that the Commission's services had been unduly partial by seeking to favour consortium Z. According to the complainant, it had obtained information that, soon after the deadline for the submission of bids had expired, a partner of the consortium Z had telephoned the responsible Commission's services and that, as a result of that conversation, the institution was considering the annulment of stage 2 of the programme in order to merge it with stage 3. At that point, it appeared clear that consortium Z had not been able to submit its proposal for stage 2 in due time. This initiative of the Commission would have provided the complainant's competitor with a new opportunity to put forward a joint bid for stages 2 and 3 of the project. The complainant enclosed with his complaint a copy of an internal e-mail from one of the partners of consortium Z to his other partners, which showed that consortium Z was making the necessary preparations for this eventual course of action. Since it appeared, on the basis of the available information, that the complaint had not been preceded by the appropriate administrative approaches to the institution concerned, the Ombudsman declared it inadmissible pursuant to Article 2 (4) of the Statute of the European Ombudsman. In this letter, the Ombudsman suggested that the complainant should make the necessary administrative approaches to the Commission, in particular by contacting the responsible Commissioner. Complaint 1808/2004/JMA In June 2004, the complainant wrote again to the Ombudsman. The complainant stated that, following the Ombudsman's suggestion, it had written to the Commission in April 2004, requesting a re-appraisal of its proposal. In June 2004, the responsible Director-General replied to the complainant's letter, and explained that, on the basis of the evaluation criteria set out in the guide of the programme, all the evaluators had rated the complainant's proposal below the acceptable thresholds. The complainant was also informed that stages 2 and 3 of the programme were to be merged into a third call to be published in the near future. On the basis of that information, the complainant restated the allegations made in his previous complaint to the Ombudsman (reference 239/2004/JMA). It underlined that the way in which the evaluators had reviewed some aspects of its proposal, such as

522

those concerning research and development as well as budget distribution, was inadequate. Since these evaluators did not appear to have expertise in a number of relevant areas, they undervalued the usage of the methods and solutions proposed by the complainant. The complainant noted that the Commission rejected its requests for a re-evaluation of its proposal, despite the complainant having shown that the evaluators did not possess the necessary qualifications and expertise, and that their assessment had been influenced by factors other than the quality of the proposal itself. It argued that the Commission's reply confirmed the merger of stages 2 and 3 of the programme, and therefore the favouritism shown and comparative advantage given to its main competitor, consortium Z. Taking into consideration the new evidence, the Ombudsman decided to register the complainant's letter as a new complaint (reference 1808/2004/JMA) and to start an inquiry. The allegations on which the Ombudsman asked the Commission to submit an opinion were the following: The complainant alleges, in summary, that, (i) the evaluators employed by the Commission for the assessment of the proposals were not technically qualified, and that (ii) their assessment of his bid was not neutral. He therefore claims that his proposal be re-assessed by expert and impartial evaluators.

THE INQUIRY The Commission's opinion In its opinion, the Commission first described the background of the case. It explained that the proposal submitted by the complainant concerned stage 2 of an R&D programme. This initiative had been split in three different phases. Stage 1 had already been awarded to consortium Z. The Commission had received three proposals for stage 2 of the programme, of which only the complainant's proposal met the programme's admissibility criteria. In February 2004, however, following a thorough evaluation of the complainant's proposal, the Commission decided not to accept it, on the grounds that its contents were unsatisfactory. The Commission argued that the evaluation had been carried out in full compliance with the relevant procedures, as reflected in the evaluators' conclusions. As regards the technical expertise of the evaluators, the Commission explained that the proposal was examined by six independent evaluators selected in accordance with the "Guidelines on proposal evaluation and selection criteria". Copies of all the evaluators' curricula vitae were annexed to the Commission's opinion.

523

The Commission argued that all evaluators had concluded that the complainant's proposal did not meet the six evaluation criteria defined in the programme's guidelines. The Commission underlined that the complainant's proposal had been assessed in accordance with the official procedures by independent evaluators with the necessary level of expertise and experience. The score awarded to the proposal was an honest and fair reflection of the quality of the submission. The institution also stressed that the responsible committee, having concluded that the complainant's proposal was not suitable, decided in April 2004 to modify the Work Programme ("the Work Programme) and to merge stages 2 with stage 3. The complainant was formally informed of this decision. In connection with the bid submitted by consortium Z, the Commission noted that it had been delivered once the deadline had expired. Soon after, its services received a telephone call from one of the partners of consortium Z in order to obtain information on the potential outcome of the selection procedure. He was informed that his proposal had been excluded. In reply to his questions about how the selection procedure could go, the Commission's services explained that, if none of the submissions for stage 2 succeeded, the Commission might consider merging stages 2 and 3 in a future selection procedure. The Commission noted, however, that this statement was hypothetical in nature. It appears, however, that, following this telephone conversation, a partner of consortium Z subsequently wrote an e-mail to the other consortium members in which he referred to his conversation with the Commission's services. A copy of this e-mail was also sent to the Commission by one of the consortium's members. The Commission enclosed with its opinion a number of documents, including the evaluation criteria and thresholds published in the Work Programme for stage 2 of the programme, the curricula vitae of the evaluators as well as a copy of the evaluation summary report concerning the complainant's proposal. The complainant's observations In his observations, the complainant repeated the allegations made in his complaint. He pointed out that his complaint not only alleged lack of expertise on the part of the evaluators for the assessment of his proposal, but also the existence of improper actions on the part of the Commission's services intended to favour the complainant's main competitor, consortium Z. The complainant argued that, in the light of the curricula vitae of the evaluators annexed to the Commission's opinion, it was clear that they lacked the necessary skills to assess a very sophisticated programme such as the one in question. In his view,

524

some of those evaluators had been biased in favour of consortium Z, since they had some relationship with the consortium's members. The inspection of the file After carefully examining the Commission's opinion and the complainant's observations, the Ombudsman took note of the fact that a number of uncertainties concerning the factual and legal aspects of the case remained. In the light of these uncertainties, he concluded that it was appropriate to carry out an inspection of some of the materials included in the file. The Ombudsman wrote therefore to the Commission in July 2005 stating that, in accordance with Article 3 (2) 1st indent of the Statute of the European Ombudsman, he considered it necessary for his services to inspect certain documents that should be present in the Commissions file on this case, namely, (i) the assessment of the complainant's bid for stage 2 of the programme; (ii) the note of the telephone discussions held between a Commission official and the representative of consortium Z, following the expiration of the deadline for the submission of tenders for stage 2; and, (iii) the decision to annul stage 2 and to merge it with stage 3. The inspection took place at the Commissions premises in Brussels in September 2005. The Commission's services produced a number of documents contained in three large files: (1) the first one contained a series of documents related to the general process for the selection of the proposals submitted to stage 2; (2) the second file included documents pertaining to the evaluation of each of the bids; (3) the materials included in the third file related to stage 3 of the programme. In addition, the Commission's services brought a number of copies of individual documents related to specific aspects of the programme. The documents contained in the first two files were relevant for the first aspect of the Ombudsman's request, namely the assessment of the complainant's bid. The first file included documents concerning general issues pertaining to the work programme and the second contained documents regarding the evaluation of individual proposals. As regards the second aspect of the Ombudsman's request concerning the note of the telephone discussions held between a Commission official and the representative of consortium Z, the Commission's services indicated that no written document had been drafted at that time. The institution explained that, in line with the basis of the programme, telephone logs are only prepared when, in the course of the contacts with any of the bidders, substantive issues are being discussed. However, if the telephone conversation only involves a general request for information, no report is deemed necessary. In the view of the Commission's services, the telephone call by a representative of the complainant's competitor, once the deadline for the submission of bids had expired, was only a request for information in the course of which no substantive issues were

525

discussed. The Commission's services were therefore of the view that no telephone log appeared to be necessary. As regards the documents concerning the decision to annul stage 2 and to merge it with stage 3 of the programme, the Commission submitted a number of additional materials contained in a third file. From the documents included in this file, it appeared that, in February 2005, the Commission's services decided not to accept any of the proposals submitted to the new call for tenders involving stages 2 and 3 of the programme, and therefore, to annul the selection procedure and to call for a revised procedure. As a result, the Commission devised a new programme for which a formal call for proposals has already been published. The Ombudsman's services drafted a report to the Ombudsman concerning the inspection of the file, a copy of which was forwarded to both the Commission and the complainant.

THE DECISION 1. Qualifications of the evaluators 1.1 The complainant alleged that the evaluators employed by the Commission for the assessment of the proposals submitted to stage 2 of a R&D programme were not technically qualified. In his observations, the complainant added that , in the light of the evaluators' curricula vitae, which were annexed to the Commission's opinion, they appeared to lack the necessary expertise and experience in several fields covered by the programme. 1.2 The Commission argues that the proposals submitted to stage 2 of the programme were examined by six independent evaluators selected in accordance with the applicable legal rules, namely the "Guidelines on proposal evaluation and selection criteria". In support of its position, the Commission had enclosed with its opinion, the curricula vitae of the evaluators. The institution underlined that the complainant's proposal had been evaluated fully in accordance with the official procedures by independent evaluators with the necessary level of expertise and experience. 1.3 The Ombudsman notes that the call for tenders at issue was aimed at the selection of proposals for the development of a R&D system. The project was to be funded with Community assistance under the Sixth Framework Programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation for the period 2002-2006. The legal basis of this initiative is to be found in Decision No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 concerning the sixth framework programme of the European Community for research,

526

technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) (1) (Decision 1513/2002"), which set out the activities and priorities of this Framework Programme, as well as its scientific and technological objectives. One of the thematic priorities singled out by Decision 1513/2002 included the area of the programme in question. Its specific objectives were laid down by the Commission in a General Work Programme. As regards the(2) participation of enterprises, research centres and universities under the Sixth Framework Programme, the rules were laid down in Regulation (EC) No 2321/2002 of the European Parliament and of the Council of 16 December 2002 concerning the rules for the participation of undertakings, research centres and universities in, and for the dissemination of research results for, the implementation of the European Community Sixth Framework Programme (2002-2006)(3), ("Regulation 2321/2002") and further developed in a public document entitled "Guidelines on Proposal Evaluation and Selection Procedures" ("the Guidelines"). The Ombudsman notes that the procedure for the appointment of independent evaluators is set out in Article 11.2 (b) and (d) of Regulation 2321/2002 and Section 2.2 of the Guidelines. Accordingly, the Commission appoints independent evaluators on the basis of calls for applications published in the Official Journal, or of specific requests addressed to research institutions. Independent evaluators were expected to have the skills and knowledge appropriate to the areas of activities in which they were asked to assist, as well as a high level of professional experience in a number of scientific areas or activities(4). Account should also be taken of their abilities to appreciate the challenges and industrial and/or societal dimension of the proposed work. As for the procedure for the appointment of evaluators, the Ombudsman notes that, as laid down by the above provisions, the Commission should draw up a list of independent evaluators on the basis of a number of criteria, such as the range of competences; a balance between academic and industrial expertise and users; a reasonable gender balance; a reasonable distribution of geographic origins; and the regular rotation of evaluators. The list of independent evaluators to be used for evaluation sessions has to be decided by the relevant Director. Before the start of their work, all evaluators must sign a declaration of conflicts of interest and confidentiality. 1.4 The Ombudsman has carefully examined all available information, in particular the curricula vitae of the evaluators chosen by the Commission to assess the complainant's proposal. The Ombudsman notes that all the evaluators appear to have a great deal of expertise in the relevant area of the programme, along the lines set out in the Work Programme. They seem to possess skills in a number of relevant areas (...). In addition, all the evaluators appear to be high-ranking individuals from the fields of science and industry with significant experience in research, research policy or research programme management at national or international level.

527

As the Community courts have held in similar situations in which an institution is called upon to choose the persons to constitute a Selection Board, the appointing authority enjoys a discretionary power to assess the skills of the individuals to be chosen, which can only be questioned if the institution exceeds its legal authority(5). The Ombudsman notes that, in the course of his inquiry, no information has been made available which may lead him to believe that the Commission failed to apply the criteria laid down in Article 11.2 (b) and (d) of Regulation 2321/2002 and Section 2.2 of the Guidelines, when it appointed the six evaluators responsible for the assessment of the proposals submitted to stage 2 of the programme. 1.5 As regards procedure, the Ombudsman notes that the Commission described the steps taken by its services for the selection of the independent evaluators in an internal note which was made available in the course of his inspection of the file. Having reviewed the procedure followed by the Commission for the selection of the evaluators, as described in that note, the Ombudsman finds that it appears to be in accordance with the relevant rules, namely Article 11.2 (b) and (d) of Regulation 2321/2002 and Section 2.2 of the Guidelines. 1.6 On the basis of the findings in points 1.4 and 1.5 above, the Ombudsman has concluded that there appears to be no maladministration as regards this aspect of the case. 2. The Commission's assessment of the complainant's bid 2.1 The complainant alleged that the assessment of his bid carried out by the Commission's evaluators was not neutral. He argued in his observations, that the evaluators were biased since they appeared to be related, for different reasons, to a third company, consortium Z. The complainant believes that he was discriminated against because, notwithstanding the fact that he had been the only bidder accepted to the selection procedure for stage 2, his bid was not retained. In his view, the Commission's services were biased in favour of consortium Z, as proved by the Commission's decision to annul the selection procedure for stage 2, and to merge stages 2 and 3, for which a new call for tenders had been made. In support of his allegation, the complainant refers to a telephone conversation between a representative of the consortium Z and the responsible Commission services which took place soon after the deadline for the submission of bids had expired, once it was clear that the consortium Z's bid had not been submitted in due time. The complaint includes a copy of an internal e-mail from one of the partners of consortium Z to his other partners, which showed that consortium Z was making the necessary preparations for this eventual situation. 2.2 The Commission argues that the complainant's proposal was evaluated in accordance with the official procedures by independent evaluators who concluded that

528

the proposal did not meet the evaluation criteria. In view of these findings, the Commission could not retain the complainant's proposal. In connection with the telephone call made by a representative of the complainant's competitor, once the deadline for the submission of bids had expired, the Commission takes the view that it was only a request for information in the course of which no substantive issues were discussed. Thus, in reply to the representatives questions about the closure of the selection procedure, its services merely referred to the different possibilities which appeared at the time. Given the nature of the issues discussed, the Commission's services were of the view that no telephone log appeared to be necessary. The institution explains that the committee responsible for the programme, having concluded in March 2004 that the complainant's proposal was not suitable, decided to modify the Programme and to re-open stages 2 and 3 in a new call for tenders. The complainant was formally informed of this decision. 2.3 The Ombudsman notes that the Community courts have consistently held that the Commission enjoys a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender(6). 2.4 The Ombudsman notes that in reply to the complainant's request, the Commission has offered a detailed explanation of the reasons for which the complainant's bid was not retained. The Ombudsman points out that the Commission enclosed, with its opinion, a copy of the evaluation summary report. The document contained the evaluators' reasoned assessment of the complainant's proposal. The Commission had also annexed a copy of that summary report to the letter sent to the complainant, informing him of the rejection of the proposal. The Ombudsman notes that the summary report begins with a general introduction of the aims and goals of the complainant's proposal, followed by the evaluators' score in each of the six different criteria laid down in the Work Programme(7). On the basis of that evaluation, it appears that the complainant's bid did not reach the minimum threshold in any of the six criteria, obtaining a total score of 11 points, well below the minimum mark of 24 points. Each mark was accompanied by a brief explanation, which was supplemented by an overall comment on the global assessment made by the evaluators. The reasoning provided by the evaluators included references to particular aspects of the complainant's proposal which, in their view, appeared to be inadequate, such as the integration of the programme with the results of stage 1, the explanations on its potential impacts, environmental implications, the science and technology objectives to be achieved, the description of the partners' profiles and their management experience, the approach to risk management, or the perceived lack of a proper mobilisation of resources.

529

Having reviewed the contents of this summary report, the Ombudsman considers that it appears to provide an adequate statement for the position taken by the institution along the lines of the legal criteria laid down in the Work Programme. 2.5 As regards the alleged lack of objectivity of the evaluators resulting from their relationship with a third party, the Ombudsman points out that, on the basis of the available information, all evaluators signed a declaration to the effect that there was no conflict of interest, at the time of their appointment, in relation to the matter on which they were required to give an opinion. The Ombudsman notes that no evidence has been brought to his attention in the course of his inquiry, either by the complainant or the Commission, and that nothing was found in the inspection of documents that may lead him to believe that any of the evaluators had any particular relationship with a third party, as a result of which his or her evaluation may have been biased. 2.6 The Ombudsman notes that the Commission has offered a thorough explanation to the complainant of its reasons for its decision, both in a letter to him and in its opinion to the Ombudsman. They include references to particular aspects of the complainant's proposal and its shortcomings from the standpoint of the programme's criteria. These explanations appear to provide an adequate statement of the Commission's reasoning in support of its position. 2.7 The Ombudsman is mindful of the fact that some of the factual aspects of the case, involving the telephone conversation of one of the partners of consortium Z with the Commission's services and that partners subsequent e-mail to the other partners have caused the complainant to question the propriety of the Commissions decision to cancel stage 2 of the tender procedure and merge it with stage 3. Having carefully reviewed all the available information, the Ombudsman has found no evidence of impropriety in the decision not to proceed with stage 2 of the programme, or to have a new tender including stages 2 and 3 of the programme. The Ombudsman finds that none of the documents reviewed in the course of his inquiry has revealed a particular attitude or predisposition on the part of the Commission either against the complainant or in favour of any third party. In this context, the Ombudsman considers it particularly relevant that the Commission decided not to retain any of the proposals submitted to the new call for tenders involving stages 2 and 3 of the programme, and therefore to annul the selection procedure. The Ombudsman notes that it would have been easier for the Commission to deal with the complainants concerns in this regard if it had been able to produce a written record of the telephone conversation in question. The Ombudsman therefore suggests that the Commission may wish to review its rules on telephone logs in the framework of a call for tenders, with a view to avoiding similar problems from arising in the future. The Ombudsman will address a further remark to the Commission to this effect below.

530

2.8 In view of the above considerations, the Ombudsman takes the view that the complainant has not provided evidence showing that the Commission misused its powers when carrying out its selection of proposals for stage 2 of the programme. Accordingly, the Ombudsman has concluded that the Commission acted within the limits of its legal authority. The Ombudsman therefore finds that there is no evidence of maladministration in relation to this aspect of the case. 3. The complainant's request for a re-assessment of his proposal 3.1 The complainant claims that his proposal be re-assessed by expert and impartial evaluators. 3.2 Taking into consideration the above findings, the Ombudsman does not consider it necessary to deal with the complainant's claim. 4. Conclusion On 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.

FURTHER REMARK The Ombudsman is mindful of the fact that some of the factual aspects of the case, involving the telephone conversation of one of the partners of consortium Z with the Commission's services and that partners subsequent e-mail to the other partners have caused the complainant to question the propriety of the Commissions decision to cancel stage 2 of the tender procedure and merge it with stage 3. The Ombudsman notes that it would have been easier for the Commission to deal with the complainants concerns in this regard if it had been able to produce a written record of the telephone conversation in question. The Ombudsman therefore suggests that the Commission may wish to review its rules on telephone logs in the framework of a call for tenders, with a view to avoiding similar problems arising in the future. Yours sincerely,

P. Nikiforos DIAMANDOUROS -------------------------

531

(1)

OJ 2002 L 232, p. 1. OJ 2002 L 355, p. 23.

(2)

"[R]esearch in the relevant scientific and technological fields; administration, management or evaluation of projects; use of the results of research and technological development projects; technology transfer and innovation; international cooperation in science and technology; development of human resources". Section 2.2, p. 8, of the Guidelines.
(4)

(3)

Section 2.2, p. 8, of the Guidelines.

Case T-173/99 Elkam & Mazuel v Commission [2000] ECR-SC IA-101; II-433, paragraph 70. Case 56/77 Agence Europenne d'Interims v Commission [1978] ECR 2215, paragraph 20; Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 49; Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 147. Relevance, potential impact, science & technology excellence, quality of the consortium, quality of the management, and mobilisation of the resources.
(7) (6)

(5)

532

Decision of the European Ombudsman on complaint 2038/2004/(LH)GG against the European Parliament

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 4 May 2005

Dear Mr X., On 28 June 2004, you made a complaint to the European Ombudsman in which you alleged that the European Parliament had failed to reply to an e-mail you had sent it on 23 February 2004. On 15 July 2004, I forwarded the complaint to the President of the European Parliament. In this letter, I asked Parliament to submit its opinion by 15 September 2004. On 21 September 2004, the Citizens' Correspondence Unit of the European Parliament sent me a copy of a letter it had addressed to you that day. On 12 October 2004, I wrote to Parliament in order to ask for its opinion. The European Parliament sent its opinion on 8 November 2004. I forwarded it to you on 12 November 2004 with an invitation to make observations, which you sent on 7 December 2004. On 15 December 2004, I asked Parliament for further information in relation to this case. The European Parliament sent its reply on 1 February 2005 and I forwarded it to you on 4 February 2005 with an invitation to make observations by 15 March 2005. No observations were received from you by that date. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT On 23 February 2004, the complainant, an Austrian citizen, sent an e-mail to the European Parliament, using the civis@europarl.eu.int address. In this e-mail, he asked for information concerning a resolution that Parliament appeared to have adopted in

533

1995. In the absence of a reply, he sent his request for information again on 13 April 2004. In his complaint to the Ombudsman lodged in June 2004, the complainant alleged that the European Parliament had failed to reply to his e-mail of 23 February 2004 and claimed that a reply should be sent.

THE INQUIRY The European Parliament's opinion In its opinion, Parliament made the following comments: The complainant's request for information had been addressed to the civis@europarl.eu.int electronic mailbox. However, this mailbox was no longer set up to receive messages from members of the public but had been replaced by an internet form created for this purpose on the "Europarl Portal". When the complainant had sent his message, he would have received a message inviting him to contact the Citizens' Correspondence Unit of Parliament by way of the "Citizens' Portal". "Dear correspondent, Thank you for your e-mail message. To enable us to deal with your message, we would kindly ask you to readdress it to us using the form given at the 'Citizens' Portal' on the EP web site at http://www.europarl.eu.int/parliament/public/staticDisplay.do?id=48&language =en. To submit your question, suggestion or request for information, select 'Correspondence with the citizen' and click on 'mailbox'. Complete the form and select 'submit'. N.B. You can transfer the text of your message to the form using the copy and paste procedure." It appeared that the complainant did not use the form. If he had done so, he would have received a timely reply. Together with its opinion, Parliament submitted a copy of the reply that had been sent to the complainant on 21 September 2004.

534

The complainant's observations In his observations, the complainant pointed out that although the letter of 21 September 2004 explained that the civis@europarl.eu.int address was no longer valid, the very same address was indicated in the footer of the letter. The complainant further stressed that he had not received the standard message to which Parliament had referred, either in reply to his e-mail of 23 February 2004 or when he had sent his reminder on 13 April 2004. Further inquiries After careful consideration of the European Parliament's opinion and the complainant's observations, it appeared that further inquiries were necessary. Request for further information On 15 December 2004, the Ombudsman therefore asked Parliament to explain why the civis@europarl.eu.int address was still quoted in the footer of its letter addressed to the complainant on 21 September 2004. The Ombudsman further noted that when his services had sent test messages to this mailbox in November 2004 (after having received Parliament's opinion) and December 2004 (after having received the complainant's observations), they had not received the standard message to which Parliament had referred. Parliament was invited to comment on this fact. Parliament's reply In its reply, the European Parliament made the following comments: Since summer 2003, a portal has been created on Europarl for citizens making contact with the European Parliament. The citizens fill in an electronic form which is sent to the Adonis/Geda database. In all cases, the Citizens' Correspondence Unit replies to the form by e-mail through the civis@europarl.eu.int mailbox. Citizens contacting the Parliament by normal post also used to receive in reply a letter which included the address of the civis@europarl.eu.int mailbox. The Unit concerned, recognising the confusion which could result from the mention of this address, had since adopted a new letter-head which indicates the address of the "Citizens' Portal" on Parliament's website (http://www.europarl.eu.int/parliament/public/staticDisplay.do?id=48&language=de in the German version). At the time when the complainant sent his e-mails to Parliament, Parliament's electronic mail system had had serious problems due to an uncontrolled avalanche of spam messages. Thus, the arrival in the civis@europarl.eu.int mailbox of more than 300 000 e-mails had had the effect, among others, of paralysing the programmed instructions in the e-mail management programme which activated the automatic "reply" function.

535

This situation had been dealt with on 26 April 2004 when a new electronic mail programme had become operational. The systematic sending of a "reply" to e-mails was now working perfectly. The automatic "reply" only functioned with e-mails received from the outside world, i.e. from outside the European institutions. This was the reason why the Ombudsman's services had not received an automatic reply to the e-mails they had sent to the civis@europarl.eu.int mailbox in November and December 2004. The complainant's observations No observations were received from the complainant.

THE DECISION 1. Alleged failure to reply to request for information 1.1 On 23 February 2004, the complainant, an Austrian citizen, sent an e-mail requesting information to the European Parliament, using the civis@europarl.eu.int address. In the absence of a reply, he sent his request for information again on 13 April 2004. In his complaint to the Ombudsman lodged in June 2004, the complainant alleged that the European Parliament had failed to reply to his e-mail of 23 February 2004 and claimed that a reply should be sent. 1.2 In its opinion, Parliament explained that the civis@europarl.eu.int electronic mailbox was no longer set up to receive messages from members of the public but had been replaced by an internet form created for this purpose. According to Parliament, persons writing to the civis@europarl.eu.int address receive an automatic message informing them that they should use the new form. Parliament submitted that the complainant had not used the form and that he would have received a timely reply if he had done so. Together with its opinion, Parliament submitted a copy of the letter that had been sent to the complainant on 21 September 2004. 1.3 In his observations, the complainant stressed that he had not received the standard message to which Parliament had referred, either in reply to his e-mail of 23 February 2004 or when he had sent his reminder on 13 April 2004. 1.4 The Ombudsman's services sent test messages to the civis@europarl.eu.int mailbox in November 2004 (after having received Parliament's opinion) and December 2004 (after having received the complainant's observations) without receiving the standard message to which Parliament had referred. In these circumstances, the Ombudsman asked Parliament for further information. 1.5 In its reply, Parliament explained that at the time when the complainant sent his emails, its electronic mail system had had serious problems due to an uncontrolled

536

avalanche of spam messages. According to Parliament, the arrival in the civis@europarl.eu.int mailbox of more than 300 000 e-mails had had the effect, among others, of paralysing the programmed instructions in the e-mail management programme which activated the automatic "reply" function. Parliament added that this situation had been dealt with on 26 April 2004 when a new electronic mail programme had become operational. It stressed that the systematic sending of a "reply" to e-mails was now working perfectly. Parliament also explained that the automatic "reply" only functioned with e-mails received from the outside world, i.e. from outside the European institutions. This was the reason why the Ombudsman's services had not received an automatic reply to the e-mails they had sent to the civis@europarl.eu.int mailbox in November and December 2004. 1.6 It is good administrative practice to reply to requests for information within a reasonable period of time. In the present case, Parliament only replied to the complainant's e-mail of 23 February 2004 on 21 September 2004, that is to say nearly seven months after having received the request and more than two months after the Ombudsman had informed Parliament of the complainant's case. The Ombudsman considers that this goes manifestly beyond what can be considered to be a reasonable period of time for answering such requests. 1.7 In its reply to the Ombudsman's request for further information, Parliament referred to technical problems that beset its electronic mail system due to an uncontrolled avalanche of spam messages. The Ombudsman agrees that technical problems of such a nature may cause delays and that the EU institution or body concerned cannot be held responsible for such delays, provided that it is unable promptly to deal with these problems. It should be noted, however, that according to the information provided by Parliament the said problems must have existed for more than two months, that is to say at least from the day when the complainant first wrote to Parliament (on 23 February 2004) until the day on which a new electronic mail programme had become operational (on 26 April 2004). It should further be noted that even after the problem had been solved according to the information provided by Parliament, it took nearly five months (and a complaint to the Ombudsman) before the complainant's request for information was answered. The Ombudsman considers that even if only this period of time were to be taken into consideration, Parliament would still clearly have failed to reply to the complainant within a reasonable period of time. 1.8 The Ombudsman considers, however, that the technical problems to which Parliament has referred should in any event not be taken into account in the present case. Where such technical problems cause delays, it is good administrative practice to inform the citizen accordingly. In the present case, however, no such information was given either in Parliament's reply to the complainant of 21 September 2004 or in Parliament's opinion on the present complaint which was submitted in November 2004. On the contrary, in its opinion Parliament claimed that the complainant must have received, in reply to his e-mails, a standard message directing him to the proper e-mail address. It was only in its reply to the Ombudsman's request for further information that Parliament admitted that no such messages had been sent out during

537

the period concerned. The Ombudsman further notes that Parliament has not offered any apologies in this context. 1.9 In view of the above, the Ombudsman concludes that Parliament's failure to reply to the complainant's e-mail of 23 February 2004 within a reasonable period of time constitutes an instance of maladministration. A critical remark will be made in this context. 2. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: It is good administrative practice to reply to requests for information within a reasonable period of time. In the present case, Parliament only replied to the complainant's e-mail of 23 February 2004 on 21 September 2004, that is to say nearly seven months after having received the request and more than two months after the Ombudsman had informed Parliament of the complainant's case. The Ombudsman considers that this goes manifestly beyond what can be considered to be a reasonable period of time for answering such requests. Parliament's failure to reply to the complainant's e-mail of 23 February 2004 within a reasonable period of time thus constitutes an instance of maladministration. Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case. The President of the European Parliament will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS

538

Decision of the European Ombudsman on complaint 2066/2004/TN against the European Commission

Strasbourg, 2 June 2005

Dear Mr W., On 4 July 2004, you made a complaint to the European Ombudsman concerning access to documents relating to the e-money Directive. On 26 July 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 18 October 2004. I forwarded it to you with an invitation to make observations, which you sent on 2 November 2004. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are, in summary, the following: The European Commission's DG Internal Market issued a consultation paper on the application of the e-money Directive(1) to mobile operators, requesting contributions from the concerned segments of the value chain by 16 July 2004. The consultation paper concerns legislative matters, as it may lead to amendments of the e-money Directive. Accordingly, and with reference to Article 2(4) of Regulation 1049/2001(2), any document relating to the consultation paper should have been made available online. However, this was not done. The complainant points out that page three of the consultation paper mentions the Banking Advisory Committee (hereafter "BAC") and a working group of the BAC on the interpretation and application of the banking directives. The working group is known by the acronym of its title in French ("GTIAD"). According to the same page of the consultation paper, the GTIAD gave advice on the basis of which the BAC concluded, at its meeting of 10 December 2003, that the conditions for application of the e-money Directive are met if mobile users purchase third party products or services and pay for them with the electronic value stored on their prepaid card. The BAC invited the Commission to consider the impact of this conclusion and the Commission issued the consultation paper. In order to respond to the consultation paper, the complainant asked for access to the document or documents issued by the BAC and the GTIAD regarding the matter, and especially the advice of 10 December 2003. The request was made in an e-mail sent to
539

the Commission's e-mail address MARKT-F2@cec.eu.int on 7 June 2004. A reminder was sent on 21 June 2004. At the time of submitting his complaint to the Ombudsman, the complainant had not received a reply. The complainant alleges that the Commission has: 1. Failed to make available online, in accordance with Regulation 1049/2001, documents relating to the consultation paper on the application of the e-money Directive to mobile operators; and 2. Failed to reply to his application for access to documents related to the application of the e-money Directive to mobile operators, issued by the Banking Advisory Committee (BAC) and its working group on the interpretation and application of the banking directives (GTIAD). The complainant claims that he should have access to the requested documents.

THE INQUIRY The Commission's opinion In its opinion, the Commission makes, in summary, the following comments: As regards the complainant's allegation that the Commission failed to make the relevant documents available online, the Commission acknowledges that Regulation 1049/2001 gives, in principle, general access to documents produced by, or in the possession of, the EU institutions. However, the same Regulation contains a number of exceptions, listed in its Article 4. The purpose of these exceptions is to protect certain public and private interests and the decision-making process of the Commission. Article 4(3) limits access to documents "drawn up by an institution for internal use or received by an institution, which relate to a matter where the decision has not been taken by the institution". The Commission launched the public consultation in question to collect further elements needed to complete the legal and factual analysis concerning the application of the e-money Directive to mobile operators. The consultation was closed on 20 July 2004 and the analysis of the replies was taking place at the time of submitting the opinion to the Ombudsman. The results of the consultation will be used in future discussions with the Member States (the expert group and the European Banking Committee). These discussions will aim to define the exact scope of the mobile operators' activity in the financial services area as well as an appropriate interim solution to apply, in a proportionate way, legislation originally not designed for the telecom sector. The discussions will also aim to decide whether, and to what extent, modification of the current legal framework is needed.

540

To disclose Commission working documents and written contributions prepared in a preliminary phase by Member States and industry (including confidential business information and legal advice), as well as minutes of the meetings reporting the provisional opinion expressed by Member States, would at the present stage, be misleading. Such disclosure could also prejudice the neutrality of future discussions with Member States, trigger disproportionate or inappropriate reactions from the public and negatively influence any future debate and legislative initiative. In this context, the Commission considered it more appropriate to keep confidential the preliminary internal documents and unofficial reports on the discussions. Despite these documents not being directly accessible, the public consultation paper refers to the preliminary discussion and states the main conclusions reached by the experts and the BAC. As regards the complainant's allegation that the Commission failed to reply to his application for access to documents, the Commission acknowledges that it has to reply to such requests within 15 working days from receipt of the request. However, the Commission never received the complainant's messages. The relevant service checked the computer system's backup files and has confirmed the absence of any messages sent by the complainant to the mail box in question on the relevant dates. It appears, on the other hand, that the complainant has not introduced or copied his request to the unit in the Commission's Secretariat-General dealing with access to documents, as indicated in the guide for access to documents(3). The Commission regrets any problem with the delivery of the e-mails and points out that it replied to the complainant's request for access immediately after having been informed about it through the complaint to the Ombudsman, explaining that the documents concerned are not accessible at this stage and giving reasons for having to reject the request. The Commission attaches to its opinion a copy of the above-mentioned reply, dated 9 August 2004, which also informs the complainant about the possibility to make a confirmatory application within 15 working days, in accordance with Regulation 1049/2001. The complainant's observations In his observations, the complainant makes, in summary, the following remarks: The executive summary of the consultation paper states, among other things, that "it is important to consider whether the e-money Directive is still an up to date, efficient and appropriate legal instrument and whether a more appropriate legal framework would be more appropriate for operators that are not traditional e-money issuers". It is therefore clear that the consultation paper concerns "a document drawn up or received in the course of a legislative procedure" as referred to in Article 2(4) of Regulation 1049/2001.

541

According to the complainant, the thesis that the consultation paper concerns a legislative matter is confirmed by the following passage in the executive summary: "Diverging interpretations between Member States' decisions introduce differences in the treatment of identical cases in the EU which prejudice the good functioning of the internal market in the financial services and electronic communications sectors. Therefore, the issue was examined in March 2003 by the Banking Advisory Committee (hereafter BAC) that mandated its working group on the interpretation and application of the banking directives (GTIAD) to provide its advice on the interpretation of the relevant rules of the e-money Directive." This passage does not only mean that the advice from the BAC was considered of paramount importance, but also that, according to its Article 2(4), Regulation 1049/2001 applies. This is further confirmed by the executive summary, which also states that: "On the basis of that analysis and advice, the BAC concluded at its meeting of 10 December 2003 that the conditions for application of the e-money Directive are met if a mobile user purchases third party products or services and pays for them with the electronic value stored on their prepaid card. The BAC invited the Commission to consider the impact of this conclusion on industry, practical criteria for defining the area of mobile phone activity covered by the e-money Directive and the most appropriate practical solution to apply this regulatory framework in a proportionate manner to 'hybrid' companies that exercise e-money activities as well as other activities. The BAC also advised the Commission to assess whether amendments to the Directive are needed." Consequently, since the executive summary states that "[c]ontributions from all segments of the value chain in industry are encouraged and will serve to complete the assessment of the impact that a supplementary regulatory framework is likely to have on the electronic communication sector", the question is why the BAC's crucial advice was withheld from these contributors. It was important for the contributors to have information about the evaluation process on the basis of which the BAC made its conclusion. The Commission's explanation that the BAC's advice should be considered to be a document for internal use is unsatisfactory, since the BAC's advice is the key element that made the Commission decide to evaluate public reaction to an adaptation of the emoney Directive. The Commission therefore omitted to apply Article 2(4) of Regulation 1049/2001, which states that "[w]ithout prejudice to Articles 4 and 9, documents shall be made accessible to the public either following a written application or directly in electronic form or through a register. In particular, documents drawn up or received in the course of a legislative procedure shall be made directly accessible in accordance with Article 12." [The complainant's underlining.] In reply to the Commission's argument that it did not receive the complainant's e-mails containing his request for access to documents, the complainant submits copies of the e-mails in question and a screen print showing the items sent from his e-mail account between 6 and 22 June 2004. According to the complainant, the screen print shows that during the same period, he also sent e-mails to members of the European

542

Parliament and to the Commission's DG Information Society, the latter via the same server as his e-mails to the Commission requesting access to documents. According to the complainant, this evidence contradicts the Commission's statement that no e-mails were received from the complainant on 7 and 21 June 2004. Furthermore, on 15 July 2004, the complainant sent comments on the consultation paper to the Commission. These comments were made by the Belgian company Heureka. The complainant encloses with his observations a screen print to show that the e-mail in question was sent. Two members of the European Parliament, to whom the comments were also sent on the same day, confirmed reception. However, Heureka's contribution does not appear in the list of contributions published by the Commission on its website(4), which means that the Commission did not receive the email with the comments. The complainant notes that there was no other option than to send the comments to the e-mail address MARKT-F2@cec.eu.int and argues the Commission therefore had the obligation to do everything in its power to guarantee reception of e-mails sent to it. The complainant asks himself whether his request for access, and Heureka's comments on the consultation paper, were unwelcome enough to be intentionally discarded by the Commission.

THE DECISION 1. The alleged failure to make documents available online 1.1 The complaint concerns access to documents relating to the e-money Directive(5). The complainant states that the European Commission issued a consultation paper on the application of the e-money Directive to mobile operators, requesting contributions from the concerned segments of the value chain. According to the complainant, the consultation paper concerns legislative matters, as it may lead to amendments of the emoney Directive. The Commission based its consultation paper on the Banking Advisory Committee's (BAC) conclusion that the conditions for application of the emoney Directive are met if mobile users purchase third party products or services and pay for them with the electronic value stored on their prepaid card. This conclusion was made on the basis of advice from the working group on the interpretation and application of the banking directives (the GTIAD). With reference to Article 2.4 of Regulation 1049/2001(6), the complainant argues that any document relating to the consultation paper, such as the BAC's conclusions and advice, should have been made available online. However, this was not done. The complainant alleges that the Commission failed to make available online, in accordance with Regulation 1049/2001, documents relating to the consultation paper on the application of the emoney Directive to mobile operators. 1.2 The Commission argues that, although Regulation 1049/2001 gives, in principle, general access to documents, the same Regulation also contains a number of

543

exceptions, listed in its Article 4. The purpose of these exceptions is to protect certain public and private interests and the decision-making process of the Commission. Article 4(3) limits access to documents "drawn up by an institution for internal use or received by an institution, which relate to a matter where the decision has not been taken by the institution". The Commission launched the public consultation in question to collect further elements needed to complete the legal and factual analysis concerning the application of the e-money Directive to mobile operators. The results of the consultation will be used in the future discussion with the Member States to define, inter alia, an appropriate interim solution to apply, in a proportionate way, legislation originally not designed for the telecom sector and to decide whether and to what extent modifications to the current legal framework are needed. To disclose Commission working documents and written contributions prepared in a preliminary phase by Member States and industry would at the present stage be misleading and could prejudice the neutrality of future discussions with Member States, trigger disproportionate or inappropriate reactions from the public and negatively influence any future debate and legislative initiative. In this context, the Commission considered it more appropriate to keep confidential the preliminary internal documents. Despite these documents not being directly accessible, the public consultation paper refers to the preliminary discussion and states the main conclusions reached by the experts and the BAC. 1.3 In his observations on the Commission's opinion, the complainant argues that the executive summary of the consultation paper makes clear that it is "a document drawn up or received in the course of a legislative procedure" as referred to in Article 2(4) of Regulation 1049/2001. Furthermore, since the consultation paper states that "[c]ontributions from all segments of the value chain in industry are encouraged and will serve to complete the assessment of the impact that a supplementary regulatory framework is likely to have on the electronic communication sector", these contributors needed information about the evaluation process on the basis of which the BAC made its conclusion. The Commission's explanation that the BAC's advice should be considered to be a document for internal use is unsatisfactory since this advice is the key element that made the Commission decide to evaluate public reaction to an adaptation of the e-money Directive. The Commission therefore omitted to apply Article 2(4) of Regulation 1049/2001, which states that "[w]ithout prejudice to Article 4 and 9, documents shall be made accessible to the public either following a written application or directly in electronic form or through a register. In particular, documents drawn up or received in the course of a legislative procedure shall be made directly accessible in accordance with Article 12." [The complainant's underlining.] 1.4 The Ombudsman notes that, according to Article 2(4) of Regulation 1049/2001, "without prejudice to Articles 4 and 9, documents shall be made accessible to the public either following a written application or directly in electronic form. /.../ In particular, documents drawn up or received in the course of a legislative procedure shall be made directly accessible in accordance with Article 12."

544

1.5 The Ombudsman also notes that Article 12(2) of the Regulation states that "[i]n particular, legislative documents, that is to say, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, should, subject to Articles 4 and 9, be made directly accessible." The Ombudsman therefore takes the view that the obligation to make a legislative document available on-line does not arise if one or more of the exceptions to public access laid down in Article 4 of the Regulation applies to the document in question(7). 1.6 The Ombudsman therefore understands the scheme of Regulation 1049/2001 as imposing on the Commission both a duty to take the initiative to put legislative documents in particular on-line, as well a duty to respond to applications for access to documents that have not previously been made available on-line. In both cases, the Commission is required to consider the possible application of the Article 4 exceptions to the documents in question. 1.7 The Ombudsman notes that the Commission does not appear to contest the complainant's arguments that the documents concerned by the present inquiry are ones that were drawn up or received in the course of a legislative procedure. The Ombudsman also notes the Commission's argument that it considered it appropriate to keep the documents concerned confidential, with reference to the exception laid down in Article 4(3) of the Regulation. The Commission provides a list of reasons why it considers Article 4(3) to be applicable. 1.8 The Ombudsman does not find these reasons wholly convincing, especially as regards the arguments that disclosure would be "misleading" or might "trigger disproportionate or inappropriate reactions from the public". The Ombudsman takes the view that these arguments seem to conflict with the idea, stated in the second recital to Regulation 1049/2001 that "[o]penness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system." 1.9 However, the Ombudsman takes the view that, in the overall scheme of Regulation 1049/2001, the right of citizens to apply for access to a document that has not been made public and to contest an eventual refusal of a confirmatory application provides the primary mechanism to guarantee the widest possible access of the public to documents held by the institutions. 1.10 The Ombudsman therefore considers that it would be disproportionate and impractical to require the Commission to carry out the same in-depth legal analysis when considering whether to make directly accessible online a legislative document to which access has not previously been given, as it must when dealing with an application and/or confirmatory application for public access to a document. 1.11 The Ombudsman considers, on the basis of the available evidence, that the Commission appears genuinely to have considered whether to make the documents in

545

question directly accessible online. The Ombudsman also notes that the complainant has exercised his right to make a written application for access to the documents in question and has had the opportunity to make a confirmatory application in accordance with Regulation 1049/2001. In these circumstances, the Ombudsman considers that no further inquiries are justified as regards this aspect of the complaint. 1.12 The Ombudsman recalls that the Court of Justice of the European Communities is the highest authority on the interpretation of Community law. 2. The alleged failure to reply to the application for access to documents 2.1 In order to respond to the Commission's consultation paper, the complainant asked for access to the document or documents issued by the BAC and the GTIAD regarding the matter, and especially the advice of 10 December 2003. The request was made in an e-mail sent to the Commission's e-mail address MARKT-F2@cec.eu.int on 7 June 2004, with a reminder sent on 21 June 2004. At the time of submitting his complaint to the Ombudsman, the complainant had not received a reply. The complainant alleges that the Commission failed to reply to his application for access to documents related to the application of the e-money Directive to mobile operators, issued by the Banking Advisory Committee (BAC) and its working group on the interpretation and application of the banking directives (GTIAD). 2.2 The Commission argues that it never received the complainant's messages. The relevant service checked the computer system's backup files and has confirmed the absence of any messages sent by the complainant to the mail box in question on the relevant dates. The Commission regrets any problem with the delivery of the e-mails and points out that it replied to the complainant's request for access immediately after having been informed about it through the complaint to the Ombudsman, explaining that the documents concerned are not accessible at this stage and giving reasons for having to reject the request. 2.3 Enclosed with his observations on the Commission's opinion, the complainant submits a screen print showing that during the period between 6 and 22 June 2004, he also sent e-mails to members of the European Parliament and to the Commission's DG Information Society, the latter via the same server as his e-mails to the Commission requesting access to documents. According to the complainant, this evidence contradicts the Commission's statement that no e-mails were received from the complainant on 7 and 21 June 2004. The complainant also argues that he sent comments on the consultation paper to the Commission on 15 July 2004. These comments were made by the company Heureka. Two members of the European Parliament, to whom the comments were also sent on the same day, confirmed reception. However, Heureka's contribution does not appear in the list of contributions published by the Commission on its website(8), which means that the Commission did not receive the e-mail with the comments. The complainant notes that there was no other option than to send the comments to the e-mail address MARKT-F2@cec.eu.int and the Commission therefore had the obligation to do everything in its power to

546

guarantee reception of e-mails sent to it. The complainant also asks himself whether his request for access, and Heureka's comments on the consultation paper, were unwelcome enough to be intentionally discarded by the Commission. 2.4 The Ombudsman notes the opposed arguments by the parties, i.e. the complainant's argument that he sent an application for access to documents to the Commission by e-mail, and the Commission's argument that it never received the email messages in question. As regards the complainant's asserted evidence contradicting the Commission's argument, the Ombudsman does not consider the fact that the e-mails were sent to constitute conclusive evidence to show that the same messages were also received by the addressee. Nor has the Ombudsman found any evidence to suggest that any of the complainant's e-mails were intentionally discarded by the Commission. Furthermore, having been informed about the application for access to documents through the complaint to the Ombudsman, the Commission appears to have taken immediate action replying to the complainant's application and informing him about the possibility to make a confirmatory application, in accordance with Regulation 1049/2001. The Ombudsman therefore finds no maladministration by the Commission regarding this aspect of the complaint. 3. The complainant's claim 3.1 In his complaint, the complainant claims that he should have access to the requested documents. 3.2 The Commission points out that it replied to the complainant's request for access immediately after having been informed about it through the complaint to the Ombudsman, explaining that the documents concerned are not accessible at this stage and giving reasons for having to reject the request. The Ombudsman notes that the Commission also informed the complainant about the possibility to make a confirmatory application within 15 working days, in accordance with Regulation 1049/2001. 3.3 The Ombudsman also notes that according to Article 8 of the Regulation, a refusal of a confirmatory application entitles the applicant to turn either to court or to the Ombudsman regarding the matter. It is necessary, however, to fulfil the procedural requirements in the Regulation before challenging a refusal. The Ombudsman has no information as to whether the complainant has followed the procedural requirements laid down in the Regulation by making a confirmatory application. In view of the above, the Ombudsman does not consider it justified to deal with the complainant's claim in the present inquiry. 3.4 The Ombudsman notes, however, that there is a possibility for the complainant to make a new application for access to documents, especially if he considers that there has been a change in the circumstances on the basis of which access was originally denied.

547

4. Conclusion On the basis of his inquiries into this complaint, the Ombudsman considers that no further inquiries are justified as regards the complainant's first allegation and related claim and that there appears to have been no maladministration by the Commission as regards the second allegation. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Directive 2000/46/EC of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit of and prudential supervision of the business of electronic money institutions.

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. Page 13 of the Commission guide to access to documents, available at: http://www.europa.eu.int/comm/secretariat_general/sgc/acc_doc/docs/en.pdf
(4) (3)

(2)

http://www.europa.eu.int/comm/internal_market/bank/e-money/index_en.htm.

Directive 2000/46/EC of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit of and prudential supervision of the business of electronic money institutions. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. Article 9 concerns sensitive documents and has not been invoked by the Commission in the present case. The Ombudsman's analysis therefore focuses on the interaction between the obligation to make legislative documents in particular available on-line and the Article 4 exceptions.
(8) (7) (6)

(5)

http://www.europa.eu.int/comm/internal_market/bank/e-money/index_en.htm.

548

Special Report from the European Ombudsman to the European Parliament following the draft recommendation to the European Anti-Fraud Office in complaint 2485/2004/GG

(Made in accordance with Article 3 (7) of the Statute of the European Ombudsman(1))

Introduction The Ombudsman considers that the present case raises an important issue of principle, affecting the trust of citizens in the EU institutions and bodies. Citizens should be able to have confidence in the accuracy and completeness of the Ombudsman's inquiries. If an institution or body has provided inaccurate and misleading information to the Ombudsman, therefore, it should be prepared publicly to acknowledge the fact in order to set the record straight. In the present case, OLAF has refused a draft recommendation from the Ombudsman that it should acknowledge that it made incorrect and misleading statements in its submissions to the Ombudsman. The Ombudsman therefore considers that the matter should be put before the European Parliament.

THE COMPLAINT Background Until 2004, the complainant, a German journalist, was the Brussels correspondent of the Stern, a German weekly newspaper. In two articles published on 28 February and 7 March 2002, the newspaper covered a number of accusations concerning alleged irregularities that had been raised in a report by an EU official, Mr Paul van Buitenen, and the inquiries carried out by the European Anti-Fraud Office (OLAF) regarding these accusations. The articles were based on the report by Mr van Buitenen and on confidential OLAF documents that the newspaper had obtained. According to the complainant, no other newspaper had obtained copies of these documents at that time. On 27 March 2002, OLAF published a press release in which it pointed out that "a journalist" had obtained a number of documents relating to its inquiry into the points that had been raised by Mr van Buitenen and that OLAF had therefore decided, on the basis of Regulation (EC) no. 1073/1999(2), to open an internal inquiry regarding the suspected disclosure of confidential data. According to the press release, this internal inquiry would also cover the allegation that the relevant documents had been obtained "by paying a civil servant".(3) In its edition of 4 April 2002, the newspaper European Voice quoted an OLAF spokesman as having said that OLAF "had been given prima facie evidence that a payment may have occurred".

549

The complainant and his newspaper considered that although no name had been mentioned in OLAF's press release, the accusation of bribery contained therein had to be understood as directed at them. According to the complainant, this accusation was unfounded. The complainant further considered that OLAF's case was based on nothing but rumours. In this context, the complainant referred to an internal e-mail circulated within OLAF by Mr B. (OLAF's spokesman) on 11 April 2002. In this e-mail, Mr B. had pointed out that the only facts that were certain at that time were that a confidential OLAF document had been leaked to the press and that there were rumours according to which this document had been even paid for, with even an indication of the price paid: "qu'il y avait des 'rumeurs' qui circulaient autour de l'OLAF et autour de la Commission europenne selon lesquelles ces documents auraient mme t 'pays' (avec mme l'indication d'un montant...)". In a letter dated 29 July 2002, the complainant asked OLAF to withdraw its press release of 27 March 2002 or to inform the public that it had no grounds of suspicion against himself and the newspaper. In addition to that, the complainant pointed out that, from an answer given by the Commission in reply to a written question by a member of the European Parliament, it appeared possible that OLAF had monitored or allowed to be monitored the e-mails and telephone calls of its staff in order to find out the possible sources the newspaper had used. He therefore asked OLAF to confirm that it had at no time monitored his telephone or e-mail communications with OLAF staff. The complainant finally asked, in case such monitoring had taken place, what personal data relating to himself OLAF had thus obtained. In its reply of 22 August 2002, OLAF pointed out that it had mentioned neither the complainant nor his newspaper in its press release and that no further press release in this matter was envisaged at the time of writing. It furthermore stressed that OLAF always ensured that its methods of inquiry were in conformity with the law and added that "our office does not possess any personal data concerning you, apart from your professional address, telephone number etc." Complaint 1840/2002/GG On 22 October 2002, the complainant turned to the Ombudsman (complaint 1840/2002/GG). In his complaint, he essentially made the following allegations: (1) OLAF had acted wrongly by making public, in its press release of 27 March 2002 and in comments to European Voice, allegations of bribery that had to be understood as directed at the complainant and his newspaper. (2) OLAF had failed to provide an answer to all the questions submitted in the complainant's letter of 29 July 2002.

550

The complainant claimed that OLAF should withdraw the allegations of bribery, preferably in the same way as they had been raised, i.e. by a press release and a separate communication to European Voice. He further claimed that OLAF should provide a complete answer to the questions in his letter of 29 July 2002. OLAF's opinion In its opinion sent on 10 December 2002, OLAF rejected the complainant's accusations, making inter alia the following comments: "OLAF has never speculated which journalist(s) or which media organisation(s) might have paid OLAF or other EU officials for confidential documents. OLAF notes that [the complainant] has not provided any substantiating evidence of his claim that he alone in the media possessed the documents in question at the time the OLAF investigation was opened. On the contrary, there is evidence that other media had obtained the same evidence. OLAF rejects [the complainant's] allegation that the suggestions that payment may have been made are to be understood as directed against himself and his employers. To OLAF's knowledge, the only press speculation on such lines has been provoked by the Stern's own statements on the subject." As regards the letter of 29 July 2002, OLAF took the view that it was not at liberty to discuss the investigation methods being used with respect to an ongoing investigation, in particular the possible use of surveillance techniques related to e-mail and telephone communications. It further stated: "As [the complainant] acknowledges, OLAF has answered his questions about its holding of personal data related to himself." OLAF's reply to the request for further information After having received and examined the complainant's observations, the Ombudsman asked OLAF (1) to explain, particularly in the light of the evidence submitted by the complainant in his observations, why it considered that other persons were or could have been meant by the reference to "a" journalist in its press release of 27 March 2002 and (2) to comment on the complainant's argument that OLAF's case was only based on rumours. In its reply of 24 March 2003, OLAF provided the following explanations: "The reason that the reference to 'a' journalist is neutral and does not implicate any specific individual is that, in fact, other journalists had published articles before OLAF's 27 March 2002 press release based on the same internal document that was referred to by the complainant in his article on 28 February 2002. For instance, on 3 March 2002, Le Monde published an article entitled 'Four investigations opened into irregularities in the Brussels' Commission',

551

which referred to OLAF internal documents (including the document in question). It reported on an investigation into three former UCLAF/OLAF officials. On 22 March 2002, the Belga news-agency reported on OLAF investigations into the Commission's building policy, referring to OLAF internal documents (including the document in question). On 26 March 2002, the same Belga news-agency reported that the Chairperson of the Budgetary Control Committee of the European Parliament (COCOBU), Mrs. Diemut Theato, had complained that it was not 'acceptable that members of the press had a confidential OLAF report on the latest revelations of Paul Van Buitenen and we don't' (emphasis added). Accordingly, based on just these publications, the reference to 'a' journalist could have meant either the complainant, the journalists who had written these articles, or other journalists referred to by Mrs. Theato. Indeed the reference could also be to any other journalist, since OLAF did not state that the investigation was linked to any specific material which had already been published." OLAF also made the following statement: "The e-mail of Mr [B.] of 11 April 2002 to OLAF staff sets forth two facts: * Journalists were in possession of internal information from the Office that they had not obtained through official channels, and * "Rumours" were circulating in the Office and in the Commission in general that these documents may have been paid for (even with an indication of the amount). (...) With respect to the second [of the above-mentioned facts], OLAF had received information from reliable sources, including members of the European Parliament, that a payment may have been made for the documents. No specific journalist or person was implicated for having made such a payment. On the basis of these facts, OLAF opened an internal investigation to determine whether this information could be substantiated." The Ombudsman's decision on complaint 1840/2002/GG On the basis of the evidence in his possession, the Ombudsman came to the conclusion that the relevant press release had to be understood as referring to the complainant and that OLAF had not put forward any evidence to support the accusation it had made therein. The Ombudsman therefore addressed a draft recommendation to OLAF according to which OLAF should consider withdrawing the allegations of bribery that had been published and that were likely to be understood as directed at the complainant. In its detailed opinion, OLAF informed the Ombudsman that it had accepted the draft recommendation and published a new press release on 30 September 2003. However,

552

this press release contained the following wording: "OLAF's enquiries have not yet been completed, but to date, OLAF has not obtained proof that such a payment was made." The Ombudsman considered that OLAF had thus not properly implemented his draft recommendation. In his decision of 20 November 2003 closing the case, he made the following critical remark: "By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny, OLAF has gone beyond what is proportional to the purpose pursued by its action. This constitutes an instance of maladministration." Subsequent developments On 19 March 2004, the Belgian prosecutor's office carried out a search of the complainant's office and house in Brussels, seizing a great number of documents. It subsequently emerged that these measures of inquiry had been based on information that OLAF had forwarded to the Belgian and the German authorities on 11 February 2004(4) The present complaint In his present complaint to the Ombudsman, the complainant noted that he had obtained copies of the dossier submitted to the Belgian and the German authorities by OLAF on 11 February 2004. According to the complainant, it emerged from the relevant documents that the inquiry started by OLAF in 2002 had been based on allegations made by a journalist, Mr G., in March 2002. The complainant thus considered that OLAF's submission to the Ombudsman in case 1840/2002/GG according to which "no specific journalist or person was implicated for having made such payment" was a manifestly false statement and that by making this statement OLAF had tried to mislead the Ombudsman. He further submitted that is was clear that OLAF had already in March 2002 been in the possession of (incorrect) personal data relating to him. The complainant considered that OLAF's statement to the contrary in its letter of 22 August 2002 to which it had referred in its opinion on complaint 1840/2002/GG had thus been wrong. He further noted that in its submissions to the Belgian and the German authorities of 11 February 2004, OLAF had argued that the complainant had been the only journalist to have had possession of the confidential OLAF document. The complainant submitted that OLAF thus defended the view it had vigorously denied in its opinion on complaint 1840/2002/GG and that the statements that OLAF had made in this case had therefore been misleading. As regards OLAF's statement, in its letter to the Ombudsman of 24 March 2003, that it "had received information from reliable sources, including members of the European Parliament, that a payment may have been made for the documents", the complainant referred to a statement made by Mr B.(5), an OLAF official, before the European Parliament's Budgetary Control Committee on 7 April 2004. According to this statement, Mr B. had "no idea" as to

553

the origin of the allegation that information had been received from MEPs; Mr B. had mentioned the possibility that this could have been a "rumour". In the complainant's view, Mr B's assumption did not appear unfounded and OLAF had thus misled the Ombudsman by referring to rumours as facts. The complainant thus alleged that OLAF had provided incorrect information in the context of inquiry 1840/2002/GG that was prone to mislead the European Ombudsman and to manipulate the inquiry. He therefore requested the Ombudsman to resume his inquiry and to consider the need to submit a special report to the European Parliament. The complainant's letter of 9 September 2004 On 9 September 2004, the complainant forwarded to the Ombudsman copies of the notes that OLAF sent to the prosecutors in Belgium and Germany on 11 February 2004(6) In these notes, OLAF made the following statements that are relevant for the present case: There was no reasonable doubt that the complainant had been in possession of the relevant documents when he wrote the two articles that were published by the Stern on 28 February and 7 March 2002. On 22 March 2002, Mr I., a director in OLAF, had received information according to which the complainant had paid EUR 8 000 to somebody in OLAF for a number of documents in relation to the van Buitenen affair. Mr I. recorded this in a note drawn up the same day. The source of this information was Mr G., a German journalist. Also on 22 March 2002, Mr B., OLAF's press spokesman, met Mr G. According to the note on this conversation drawn up by Mr B. the same day, Mr G. had told him that he had been informed by a friend and colleague at the Stern that the complainant had paid someone at OLAF for some documents. The information thus received had been used, in an anonymised way, in the press release of 27 March 2002.

THE INQUIRY OLAF's opinion In its opinion, OLAF made the following comments:

554

As regards OLAF's statements concerning the press release of 27 March 2002 As regards the statements concerning the press release of 27 March 2002 that OLAF had made in its submissions in case 1840/2002/GG, these statements accurately explained why the reference to "a journalist" could have meant any of several journalists who had published articles indicating that they were in possession of the confidential documents in question. In contrast, the letters of 11 February 2004 to the national prosecutors set forth all the information obtained by OLAF during its internal investigation of the leak that related to "matters liable to result in criminal proceedings", as required by Article 10 (2) of Regulation 1073/99. That information included various elements leading to the conclusion that the complainant had obtained a copy of the relevant documents and that the Stern may have paid a sum of money to members of staff of the European institutions. The letters did not, however, state that the complainant had clearly been the only person who had had possession of the relevant documents. The fact that detailed information on the findings of the investigation had been revealed to the national prosecutors in the letters of 11 February 2004 had no bearing on the accuracy of OLAF's statements to the Ombudsman regarding the press release of 27 March 2002. OLAF had never revealed to the public the information that it had provided to the national prosecutors in those letters. Accordingly, there was nothing misleading about OLAF's statements to the Ombudsman regarding the said press release. As regards OLAF's letter of 22 August 2002 The complainant's letter of 29 July 2002 had requested confirmation as to whether OLAF had, at any time, employed surveillance techniques to listen to telephone conversations or read e-mail messages between him and members of OLAF staff, and, if so, what personal data about him had been gathered through the use of such techniques. Mr I., the author of OLAF's reply of 22 August 2002, had declined to provide the complainant with any more details of investigation techniques than had already been provided in OLAF's answer to Parliamentary Question E1504/02, as doing so might have harmed the effectiveness of the ongoing investigation. Mr. I. had not considered that OLAF's knowledge of allegations about the complainant, as set forth in the letters of 11 February 2004, constituted personal data because he believed (1) that it was not held by OLAF for the purpose of processing and (2) that it was not assembled to constitute a dossier on the complainant and therefore did not "form part of a filing system" in accordance with Article 3 of Regulation 45/2001 (OJ 2001 no. L 8, p. 1). In any event, the allegations concerning the complainant had not been gathered using the surveillance techniques which had been the subject of the complainant's inquiry. OLAF's opinion on complaint 1840/2002/GG had only stated that "OLAF has answered [the complainant's] question about its holding of personal data related to himself". This had been OLAF's only statement on this subject. This statement had

555

been made in the context of the complainant's allegation that OLAF had failed to provide an answer to all the questions submitted in his letter of 29 July 2002, and thus it too had been specifically focussed on the use of surveillance techniques. As regards OLAF's statements concerning Mr B.'s e-mail of 11 April 2002 OLAF's statement that "[n]o specific journalist or person was implicated for having made such a payment" had been made in response to the Ombudsman's invitation to comment on the contents of Mr B.'s e-mail of 11 April 2002. In OLAF's reply, the email had been quoted in its entirety, followed by a paragraph with comments explaining the two statements in the e-mail. In that e-mail, no names had been mentioned in connection with a possible payment. OLAF's statement to the Ombudsman had thus stated the obvious, i.e. that no name had been mentioned in the e-mail in connection with the possible payment. Thus, it had not been a misleading statement. As regards OLAF's statement that it had received information from reliable sources, including members of the European Parliament Again, this statement had been made in explanation of the statement in Mr B.'s internal e-mail of 11 April 2002 that "rumours were circulating in the Office and in the Commission in general that these documents may have been paid for". OLAF's letter to the Ombudsman of 24 March 2003 had explained that "OLAF had received information from reliable sources, including members of the European Parliament, that a payment may have been made for the documents." OLAF could only re-iterate that this had in fact been the case. Conclusion On the basis of the above explanations, OLAF submitted that its statements to the Ombudsman in case 1840/2002/GG had been fully accurate and not misleading. The complainant's observations In his observations, the complainant maintained his complaint and made the following further comments: Mr I. had provided incorrect information to him. This fact was only indirectly covered by his complaint to the Ombudsman. OLAF had not denied that Mr I. had provided objectively wrong information in his letter of 22 August 2002. In this letter, Mr I. had referred to his (the complainant's) official address and telephone number. It was obvious that OLAF had not obtained the latter by using any surveillance techniques. Mr I.'s statement thus clearly had to be understood in the sense that OLAF had no further information on him on record, from whatever source. This statement had thus been untruthful both from an objective as from a subjective point of view. By referring to Mr I.'s letter of 22 August 2002 in its opinion to the Ombudsman, OLAF

556

had misled the Ombudsman and obviously tried to create the impression that OLAF was not conducting any inquiries concerning him. OLAF's statement that "[n]o specific journalist or person was implicated for having made such a payment" had clearly been made in the context of the "reliable sources, including members of the European Parliament", that OLAF had referred to in its letter of 24 March 2003. The only possible meaning of the relevant passage was that OLAF had opened its inquiry on the basis of statements by witnesses who had not mentioned a particular person as being suspected. OLAF had not provided any evidence to support its claim that it had been in possession of statements by members of the European Parliament according to which journalists might have paid for the relevant documents. No effort had been made by OLAF to explain why Mr B., the OLAF official in charge of the case, had told Parliament's Budgetary Control Committee that he had no knowledge of any such statements. Nor had OLAF explained why these statements had not been mentioned in the letters to the national prosecutors. In the absence of any evidence to the contrary, it had thus to be concluded that OLAF had presented rumours as facts and had thereby misled the Ombudsman. The complainant submitted a copy of the note dated 22 March 2002 that Mr I. had prepared for the attention of OLAF's Director.

THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation On 2 February 2005, the Ombudsman addressed the following draft recommendation to OLAF, in accordance with Article 3 (6) of the Statute of the European Ombudsman: "OLAF should acknowledge that it made incorrect and misleading statements in its submissions to the Ombudsman in the context of the latter's inquiry into complaint 1840/2002/GG." The European Ombudsman gave reasons for the draft recommendation as follows: 1.1 The complainant, a German journalist working for the Stern, had obtained copies of confidential documents of the European Anti-Fraud Office ("OLAF") and used these documents in two articles published on 28 February and 7 March 2002. On 27 March 2002, OLAF published a press release in which it pointed out that "a journalist" had obtained a number of confidential OLAF documents and that OLAF had therefore decided to open an internal inquiry regarding the suspected disclosure of confidential data. According to the press release, this internal inquiry would also cover the allegation that the relevant documents had been obtained "by paying a civil

557

servant".(7) The complainant and his newspaper considered that although no name had been mentioned in OLAF's press release, the accusation of bribery contained therein had to be understood as directed at them. According to the complainant, this accusation was unfounded. Given that OLAF refused to withdraw the said press release, the complainant lodged a complaint with the Ombudsman (complaint 1840/2002/GG). On 10 December 2002, OLAF submitted its opinion on the complaint to the Ombudsman. On 24 March 2003, it replied to a request for further information made by the Ombudsman. On the basis of the evidence in his possession, the Ombudsman came to the conclusion that the relevant press release had to be understood as referring to the complainant and that OLAF had not put forward any evidence to support the accusation it had made therein. The Ombudsman therefore addressed a draft recommendation to OLAF inviting it to withdraw the allegations of bribery that it had made. Considering that OLAF had not properly implemented his draft recommendation, the Ombudsman closed the case by decision of 20 November 2003 in which he made the following critical remark: "By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny, OLAF has gone beyond what is proportional to the purpose pursued by its action. This constitutes an instance of maladministration." On 19 March 2004, the Belgian prosecutor's office carried out a search of the complainant's office and house in Brussels, seizing a great number of documents. It subsequently emerged that these measures of inquiry had been triggered by information that OLAF had forwarded to the Belgian and the German authorities on 11 February 2004(8). 1.2 In August 2004, the complainant turned to the Ombudsman again and lodged the present complaint. The complainant pointed out that he had obtained copies of the letters sent to the Belgian and the German authorities by OLAF on 11 February 2004. On the basis of the information contained in these letters, the complainant alleged that OLAF had provided incorrect information in the context of inquiry 1840/2002/GG that was prone to mislead the European Ombudsman and to manipulate the inquiry. 1.3 In its opinion on the present complaint, OLAF submitted that its statements to the Ombudsman in case 1840/2002/GG had been fully accurate and not misleading. 1.4 Article 195 of the EC Treaty entrusts the European Ombudsman with the task of conducting inquiries into possible instances of maladministration in the activities of the Community institutions and bodies. Article 2 (2) of 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 2004(9) (the "Ombudsman's Statute") directs the Ombudsman to inform the institution or body concerned as soon

558

as a complaint is referred to him. According to Article 3 (1) of the Ombudsman's Statute, the institution or body concerned "may submit any useful comment to him". Article 3 (2), first sub-paragraph of the Ombudsman's Statute provides as follows: "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy." 1.5 In view of these provisions, the Ombudsman takes the view that it would not be consistent with the obligation imposed by Article 3 (2), first sub-paragraph of the Ombudsman's Statute for a Community institution or body to supply inaccurate or misleading information to the Ombudsman during the course of an inquiry. 1.6 The Ombudsman notes that OLAF has understood the complainant as referring to four statements or sets of statements that in the latter's view were wrong or misleading. This interpretation of the complaint appears to be reasonable, and the Ombudsman will therefore examine the four statements or groups of statements identified by OLAF. 1.7 The first group of statements that were made by OLAF in the context of the Ombudsman's inquiry into complaint 1840/2002/GG and to which the complainant takes exception concerns the press release of 27 March 2002. This press release had referred to "a journalist" without mentioning any names. In its opinion of 10 December 2002 on complaint 1840/2002/GG and in its reply of 24 March 2003 to the Ombudsman's request for further information, OLAF submitted a number of arguments in order to show that the reference to "a journalist" could have meant any of several journalists who had published articles indicating that they were in possession of the confidential documents in question. In its letter of 24 March 2003, OLAF further suggested that "the reference could also be to any other journalist, since OLAF did not state that the investigation was linked to any specific material which had already been published". The Ombudsman agrees that the interpretations proposed by OLAF in its letters of 10 December 2002 and 24 March 2003 are compatible with the wording of the press release of 27 March 2002. However, the Ombudsman notes that it clearly emerges from the letters that OLAF addressed to the prosecutors in Belgium and Germany on 11 February 2004 (1) that OLAF had concluded from the two articles published by the Stern on 28 February and 7 March 2002 that the complainant was in possession of the relevant documents, (2) that OLAF had received, on 22 March 2002, information according to which the complainant (whose name is mentioned in the notes drawn up that day) had paid EUR 8 000 to somebody in OLAF for a number of confidential documents and (3) that the information thus received had been used, in an anonymised way, in the press release of 27 March 2002. In the Ombudsman's view, it is thus clear that OLAF had the complainant, and the complainant alone, in mind when it published its press release of 27 March 2002 with its reference to "a journalist". The Ombudsman considers that although it was legitimate for OLAF to explain its view of the objective meaning of the press release, it was misleading for it not also to have

559

explained to the Ombudsman that indeed the complainant was the journalist it had in mind. 1.8 The second statement criticised by the complainant concerns OLAF's submission, in its opinion on complaint 1840/2002/GG, that it had "answered his [the complainant's] questions about its holding of personal data related to himself". As OLAF has confirmed in its opinion on the present complaint, this statement is to be understood as meaning that OLAF had replied to the complainant's questions in its letter to the complainant of 22 August 2002. In this letter, OLAF had stressed that "our office does not possess any personal data concerning you, apart from your professional address, telephone number etc.". In his observations on OLAF's opinion, the complainant has made it clear that it is this last statement that he considers to be untruthful. It is true that the statement of 22 August 2002 as such was not made in the context of the Ombudsman's inquiry into complaint 1840/2002/GG (which was only opened subsequently). It should be noted, however, that OLAF referred to this statement in its opinion on 1840/2002/GG as constituting the answer to the complainant's question on that point. In these circumstances, the Ombudsman concludes that OLAF's opinion of 10 December 2002 must be understood as saying (1) that the complainant's question relating to personal data in OLAF's possession had been answered in the letter of 22 August 2002 and (2) that this answer was correct. The Ombudsman therefore considers that the question as to whether OLAF's opinion on complaint 1840/2002/GG was incorrect or misleading on that point depends on whether the letter of 22 August 2002 itself was incorrect or misleading. The letter of 22 August 2002 replies to the complainant's letter of 29 July 2002. In this letter, the complainant had asked OLAF whether it had used any surveillance techniques concerning communication by telephone or e-mail and whether OLAF had thereby obtained any personal data in relation to himself. The Ombudsman considers that OLAF could thus have limited itself, in its reply, to saying that it did not possess any such personal data that would have been obtained by using special surveillance techniques (provided, of course, that this was indeed the case). However, OLAF did not make any such qualifications in its reply of 22 August 2002. This reply simply stated that OLAF always endeavoured to ensure that its methods of inquiry were in conformity with the law and that OLAF did not "possess any personal data concerning you, apart from your professional address, telephone number etc.". However, this last part of the statement was clearly wrong. It emerges from the letters that OLAF sent to the prosecutors in Belgium and Germany on 11 February 2004 that OLAF had indeed received, on 22 March 2002, information concerning the complainant and linked to the disclosure of the relevant OLAF documents. According to these letters, Mr G., a German journalist, had alleged that the complainant had paid a sum of money for confidential OLAF documents. The Ombudsman considers that it is clear that this information (regardless of whether it was accurate or not) constitutes personal data within the meaning of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and

560

bodies and on the free movement of such data.(10) Article 2 (a) of the Regulation defines personal data as "any information relating to an identified or identifiable natural person". Mr G.'s statement accusing the complainant of bribery fulfils this condition. OLAF argued in this context that Mr I., the author of its letter of 22 August 2002, had considered that OLAF's knowledge of allegations about the complainant did not constitute personal data because he believed (1) that it was not held by OLAF for the purpose of processing and (2) that it was not assembled to constitute a dossier on the complainant and therefore did not "form part of a filing system" in accordance with Article 3 of Regulation 45/2001. The Ombudsman does not find these arguments convincing. Even if the relevant information had not been held for the purpose of processing or did not form part of a filing system (something which the complainant, not without justification, calls into doubt), this would not alter the fact that the relevant information constituted personal data related to the complainant. Nor does the Ombudsman find it relevant in the present context that Mr I. may subjectively have thought that the relevant information did not constitute personal data. It should moreover be considered that by the time OLAF referred to this statement in its opinion on complaint 1840/2002/GG, it had had sufficient time to reconsider all the factual and legal issues involved. The Ombudsman therefore concludes that OLAF's statement, in its letter of 22 August 2002 to which it referred in its opinion on complaint 1840/2002/GG, that it possessed no personal data concerning the complainant (apart from his professional address, telephone number etc.) was incorrect. 1.9 The third statement to which the complainant takes exception concerns OLAF'S letter to the Ombudsman of 24 March 2003. In this letter, OLAF stated that "[n]o specific journalist or person was implicated for having made such a payment". In its opinion on the present complaint, OLAF pointed out that this statement had been made in response to the Ombudsman's invitation to comment on the contents of Mr B.'s e-mail of 11 April 2002. In that e-mail, no names had been mentioned in connection with a possible payment. According to OLAF, the relevant statement had thus only stated the obvious, i.e. that no name had been mentioned in the e-mail in connection with the possible payment, and had therefore not been misleading. The Ombudsman notes that the relevant statement is immediately preceded by the statement that "OLAF had received information from reliable sources, including members of the European Parliament, that a payment may have been made for the documents." He therefore considers that any reasonable reader was led to understand the following statement that "[n]o specific journalist or person was implicated for having made such a payment" in the sense that no specific journalist or person had been named by these "reliable sources". However, and as set out above, the source on which OLAF relied (Mr G.) had named the complainant as being suspected of bribery. In these circumstances, OLAF's statement was at the very least misleading, if not outright incorrect.

561

1.10 The fourth statement criticised by the complainant is OLAF's claim, in its letter of 24 March 2003, that "OLAF had received information from reliable sources, including members of the European Parliament, that a payment may have been made for the documents". In his complaint, the complainant referred to a statement made by Mr B.(11), an OLAF official, before the European Parliament's Budgetary Control Committee on 7 April 2004. According to this statement (as quoted by the complainant), Mr B. had "no idea" as to the origin of the allegation that information had been received from MEPs. Mr B. had mentioned the possibility that this could have been a "rumour". In the complainant's view, OLAF had thus misled the Ombudsman by referring to rumours as facts. In its opinion on the present complaint, OLAF submitted that this statement had been made in explanation of the statement in Mr B.'s internal e-mail of 11 April 2002 that "rumours were circulating in the Office and in the Commission in general that these documents may have been paid for". According to OLAF, its letter of 24 March 2003 had explained that "OLAF had received information from reliable sources, including members of the European Parliament, that a payment may have been made for the documents." OLAF stressed that it could only re-iterate that this had in fact been the case. The Ombudsman notes that Mr B.'s e-mail of 11 April 2002 does not refer to members of the European Parliament as the source of the rumours it mentions. The wording of this e-mail, according to which these rumours were circulating "within the Office and in the Commission in general" would furthermore appear to exclude that any reference to MEPs might have been intended. The Ombudsman further notes that OLAF has not replied to the complainant's submission that Mr B. had told Parliament's Budgetary Control Committee that he had no knowledge of any such statements. He therefore assumes that OLAF accepts that the complainant has correctly rendered Mr B.'s remarks before that committee. In this context, it should be noted that Mr B. appears to be one of the most senior OLAF officials who have dealt with the matter(12). The Ombudsman therefore assumes that Mr B. had a thorough knowledge of the file. Since it cannot be assumed that Mr B. should have been untruthful in his statements to the European Parliament's Budgetary Control Committee, the likeliest conclusion to be drawn from Mr B.'s statements is that OLAF had indeed not received any such information from MEPs. This interpretation is moreover supported by the fact that the letters to the national prosecutors of 11 February 2004 do not refer to any information provided by MEPs. The Ombudsman notes that OLAF itself has stressed in its opinion on the present complaint that the letters of 11 February 2004 to the national prosecutors set forth all the information obtained by OLAF during its internal investigation. In the light of the above, the Ombudsman considers that OLAF's statement, in its letter of 24 March 2003, that it had received "information from reliable sources, including members of the European Parliament, that a payment may have been made for the documents" appears to have been incorrect.

562

1.11 On the basis of his inquiry into the present complaint, the Ombudsman concludes that OLAF did indeed, as the complainant alleged, provide incorrect or misleading information in the context of inquiry 1840/2002/GG. OLAF's detailed opinion After having received the draft recommendation, and in accordance with Article 3 (6) of the Statute of the European Ombudsman, OLAF sent a detailed opinion on 8 March 2005. In its detailed opinion, OLAF made the following comments: As regards the first group of statements, the complainant's allegation in complaint 1840/2002/GG had been that "OLAF had acted wrongly by making public, in its press release of 27 March 2002 and in comments to European Voice, incriminations of bribery that had to be understood as directed at the complainant and his newspaper". OLAF's statements in its submissions to the Ombudsman of 10 December 2002 and 24 March 2003 had been made in response to this allegation. They had focused on how the statement in the press release could be interpreted, and whether it was true that the incriminations of bribery could only be understood as being directed against the complainant and his newspaper. The fact that OLAF had received information on 22 March 2002 indicating that the complainant had paid the bribe was not relevant to the question of whether OLAF's statement about the press release was misleading. OLAF had not been asked to explain what information it had actually possessed at the time. As regards the second statement, OLAF had not sought to provide misleading or incorrect information to the Ombudsman. Its letter of 22 August 2002 had been based on the interpretation of Article 2 (a) of Regulation 45/2001 applied by OLAF at that time (August 2002). The Court of Justice had not yet pronounced on the interpretation of this Article, and the issue was currently the subject of litigation before the Court. OLAF acknowledged, however, that the Ombudsman's broader reading of the legislation was the more prudent view. It would therefore follow the Ombudsman's interpretation of this article in the future, unless and until the Court ruled otherwise. Moreover, OLAF would, in the near future, submit a notification to the European Data Protection Supervisor and request a prior check, pursuant to Articles 27 and 46 (j) of the Regulation, concerning its processing of personal data related to the investigation of suspected offences. As regards the third statement, the question that had been put to OLAF by the Ombudsman had been understood as referring to Mr B.'s e-mail of 11 April 2002. OLAF could only reiterate that its statement that "[no] specific journalist or person was implicated for having made such a payment" had been an explanation of the contents of the e-mail. OLAF had had no intention to mislead the Ombudsman.

563

As regards the fourth statement, OLAF's Director-General had appeared before the European Parliament's Budgetary Control Committee in Strasbourg on 11 March 2002 to answer questions about the leak of confidential information. On that occasion, several members of the Committee had indicated to him that they had heard that a payment may have been made for the leaked document. Although these statements had not included concrete details, OLAF's Director-General had nevertheless attributed a certain weight to them because they had been statements of members of Parliament. However, in the light of the hearsay nature of the information, OLAF's Director-General had not prepared a note for the file and thus there had been no indication in the official case file of this information. Also for this reason, it had not been included in the information provided to the national judicial authorities by OLAF. Mr B.(13) had not begun working at OLAF until 1 November 2002, and first had had responsibility for this matter only when he had been appointed acting adviser for internal investigations on 1 November 2003. Thus, he had not even been at OLAF when its Director-General had received this information. Since the relevant statements had never become part of the file, it was not surprising that Mr B. had had no firsthand knowledge of them. Accordingly, there was nothing contradictory between the statement in the letter of 24 March 2003 and that of Mr B. in his testimony before the European Parliament's Budgetary Control Committee. OLAF concluded by saying that for the reasons set out above it was unable to accept the Ombudsman's conclusion that it had made misleading statements to the Ombudsman. The complainant's observations In his observations, the complainant made the following comments: OLAF had not produced any new and convincing arguments to call into doubt the Ombudsman's conclusions. Senior OLAF officials had thus knowingly made incorrect statements in order to manipulate the Ombudsman's inquiry in case 1840/2002/GG. In view of the serious nature of the case, a special report should be submitted to the European Parliament. As regards the first set of statements, OLAF itself had clearly admitted, in its note to the Belgian authorities of 11 March 2004, that the reproaches made in its press release of 27 March 2002 and towards European Voice had only been directed at himself. As regards the second statement, OLAF repeated its claim that Mr I. had believed that Mr G.'s incriminations against him (the complainant) had not been held by OLAF for the purpose of processing and that the information had not been part of a dossier. However, this was a manifestly incorrect statement. Mr I. himself, in his note of 22 March 2002, had noted that "we continue our investigation" and that the Commission "will presumably want to make an example of the journalist if evidence can be found".

564

As mentioned in OLAF's note to the Belgian authorities, the statements of Mr G. had already been used in OLAF's press release of 27 March 2002. It was unimaginable that Mr I. should have been unaware of this press release. Nor could OLAF's DirectorGeneral have been unaware of how the statements of Mr G. had been handled. This was all the more so in view of the fact that Mr G. had formally been heard by OLAF on 9 December 2002, one day before OLAF had sent its opinion on case 1840/2002/GG to the Ombudsman(14) It was unimaginable that OLAF's DirectorGeneral had not checked the state of the procedure before writing to the Ombudsman. OLAF's Director-General had thus manifestly and knowingly misled the Ombudsman by failing to correct the statement made by Mr I. on 22 August 2002. As regards the third statement, OLAF's explanations would mean that its investigation had been based on statements made by its own spokesman. This would be manifestly nonsensical. As regards the fourth statement, OLAF's statements only confirmed the Ombudsman's conclusions. Everything suggested that the alleged statements by members of Parliament had never been made. In view of the importance that OLAF attributed to the rumours passed on by Mr G. it would be inexplicable if OLAF's Director-General had refrained from using the possibility of asking the members of Parliament concerned about the possible sources of the relevant information. OLAF's DirectorGeneral had not even explained why he had not informed Mr B. about the alleged statements by members of Parliament. OLAF had been informed in writing on 5 April 2004 by Dr. Gabriele Stauner MEP that it would be asked about the alleged statements by MEPs on the occasion of the meeting of the Budgetary Control Committee on 7 April 2004. It was barely imaginable that in these circumstances Mr B. would not have checked the matter internally before appearing before the Committee. In any event, OLAF's Director-General should at least have mentioned the names of the MEPs concerned so as to lend credibility to his statement. However, he had refrained from doing so. The Ombudsman's evaluation of OLAF's detailed opinion The Ombudsman considers that OLAF has in effect refused to accept his draft recommendation in its entirety. It is true that OLAF has pointed out, in relation to the second of the statements referred to in the draft recommendation, that it would follow the Ombudsman's interpretation of Article 2 (a) of Regulation 45/2001 in the future, unless and until the Court ruled otherwise. The Ombudsman notes, however, that OLAF nevertheless rejected his conclusions regarding this statement as well. Upon a careful analysis of OLAF's detailed opinion, the Ombudsman takes the view that OLAF has not put forward any substantial and new arguments in so far as the first three statements (or groups of statements) discussed in the draft recommendation are concerned. The Ombudsman therefore cannot but confirm the conclusions he has reached with regard to these statements.

565

As regards the fourth statement, the Ombudsman notes that OLAF refers to hearsay information that its Director-General claims to have been given by members of Parliament on the occasion of the meeting of the European Parliament's Budgetary Control Committee in Strasbourg on 11 March 2002. However, the Ombudsman also notes that OLAF's Director-General had abstained from preparing a note for the file on this information, despite the fact that he had attributed "a certain weight" to the relevant statements. The Ombudsman finds it difficult to understand why OLAF considered it appropriate to refer, in its letter to the Ombudsman of 24 March 2003, to "information from reliable sources, including members of the European Parliament", given that OLAF itself (1) accepts that the alleged statements did not include concrete details but constituted only hearsay evidence, (2) considers that the information was not important enough to merit being recorded in a note for the file and (3) acknowledges that the relevant information was not mentioned in the notes to the national authorities, notwithstanding the fact that OLAF declared that these notes contained all the information it had obtained. Furthermore, the Ombudsman remains unconvinced as to how Mr B.'s statements before the European Parliament's Committee on Budgetary Control on 7 April 2004 could be reconciled with OLAF's abovementioned statement of 24 March 2003. As the complainant has correctly observed, Dr. Gabriele Stauner MEP sent a number of questions to OLAF's Director-General before the said meeting of the Committee on Budgetary Control. Copies of this letter were sent to the members of the Committee and to the European Ombudsman. One of Dr. Stauner's questions concerned the above-mentioned statement made by OLAF in its letter to the Ombudsman of 24 March 2003 (which Dr. Stauner quoted in her letter). Unless it were to be assumed that Mr B. (the person representing OLAF before the Committee) had not been properly briefed or did not have a sufficient knowledge of the file, Mr B.'s statements before the committee can hardly be interpreted otherwise than as saying that OLAF was not aware of any such statements made by members of the European Parliament. In any event, and as the complainant correctly observes, OLAF has still not made any effort to substantiate its claim by giving the names of the members of Parliament that it claims provided the relevant information. In these circumstances, the Ombudsman takes the view that his conclusions as regards the fourth statement remain valid as well. The Ombudsman's recommendation In view of the above, the Ombudsman re-states his draft recommendation as a recommendation to OLAF as follows: OLAF should acknowledge that it made incorrect and misleading statements in its submissions to the Ombudsman in the context of the latter's inquiry into complaint 1840/2002/GG.

566

The European Parliament could consider adopting the recommendation as a resolution. Strasbourg, 12 May 2005

P. Nikiforos DIAMANDOUROS ------------------------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. Regulation (EC) No. 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), OJ 1999 No. L 136 p. 1.
(3) (2) (1)

This is the wording of the German version of the press release. The English text of this press release which is available on OLAF's website contains slightly different wording: "According to information received by the Office, a journalist has received a number of documents relating to the so-called 'Van Buitenen affair'. It is not excluded that payment may have been made to somebody within OLAF (or possibly another EU institution) for these documents."

The German prosecutor also initiated an inquiry but did not order a search of the complainant's house or office.
(5)

(4)

Not identical with the above-mentioned spokesman of OLAF.

(6)

Copies of these notes were also submitted to the Ombudsman by OLAF during the inquiry described below.

(7)

The English text of this press release which is available on OLAF's website contains slightly different wording: "According to information received by the Office, a journalist has received a number of documents relating to the so-called 'Van Buitenen affair'. It is not excluded that payment may have been made to somebody within OLAF (or possibly another EU institution) for these documents."

The German prosecutor also initiated an inquiry but did not order a search of the complainant's house or office.
(9)

(8)

OJ 1994 L 113, p. 15. OJ 2001 L 8, p. 1.

(10)

567

(11)

Not identical with the above-mentioned spokesman of OLAF.

(12)

His name appears on the report that was forwarded to the Belgian prosecutor on 11 February 2004. Not identical with the above-mentioned spokesman of OLAF.

(13)

A copy of the minutes of this hearing was provided to the Ombudsman by the complainant.

(14)

568

Decision of the European Ombudsman on complaint 2673/2004/PB against the European Commission

Strasbourg, 18 October 2005

Dear Mr B., On 6 September 2004, you made a complaint to the European Ombudsman concerning Call for Proposals - Enlargement 2004, aimed at civil society and public SECTOR bodies in the European Union, Reference number: APESC 2004/EU-2. On 30 September 2004, you sent me a copy of a proposal that you had submitted to the Commission. On 11 October 2004, I forwarded the complaint to the President of the European Commission. On 22 November 2004, you submitted an additional allegation. On 13 December 2004, I asked the Commission to respond to this additional allegation in its opinion on your complaint. I informed you accordingly on that same date. The Commission sent its opinion on 23 February 2005. I forwarded it to you with an invitation to make observations, which you sent on 29 March 2005. I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to carry out these inquiries.

THE COMPLAINT The complainant, a German citizen living in the Czech Republic, belongs to a local group of television and film producers, journalists, script writers, animators, computer programmers and IT experts. He had requested the Commission for information on the possibility of submitting a proposal in response to Call for Proposals - Enlargement 2004, aimed at civil society and public SECTOR bodies in the European Union, Reference number: APESC 2004/EU-2. The general objective of the call was the dissemination of information to the general public and awareness-raising in relation to the following: a. the implications and consequences of the accession to the European Union of ten new Member States,

569

b. the issues that arise as a result of the accession negotiations in progress with Bulgaria and Rumania and the candidacies of Turkey and Croatia, c. the implications of enlargement for the external relations of the EU with other European and non-European countries. DG Enlargement informed the complainant that it was a long-standing administrative practice to exclude profit-making entities from the kind of programme here concerned, and "[i]n so far as it concerns resources that are provided by the European tax-payer, it would not appear appropriate to support private companies that are competing with other companies. On the contrary, it would be contrary to free competition to give subsidies to (individual) private companies in discrimination against others in the market". In subsequent communications to the Commission, the complainant contested the practice and the arguments referred to above. He received no replies. On 6 September 2004, the complainant made a complaint to the European Ombudsman. He argued that the administrative practice referred to by DG Enlargement was contrary to free competition and that the practice in fact defied the written objectives referred to in the call for proposals by excluding important and relevant expertise held by private operators. He thus considered a) that DG Enlargement had wrongly decided to exclude his group from the call for proposals, and b) that the "administrative practice" of excluding profit-making entities from the kind of calls here concerned was wrong. The deadline for the submission of proposals was 30 September 2004. In the hope that the Commission might change its view on the matter, the complainant submitted a proposal to the Commission on 25 September 2004 and forwarded a copy of it to the Ombudsman on 30 September 2004. On 22 November 2004, the complainant submitted an additional allegation, stating that the Commission had failed to acknowledge receipt of, or to otherwise respond to, his group's proposal. The Ombudsman decided to ask the Commission to respond to this additional allegation in its opinion on the complaint. Thus, the allegations made by the complainant were the following: 1. DG Enlargement had wrongly decided to exclude his group from the call for proposals referred to above. 2. The "administrative practice" of excluding profit-making entities from the kind of calls here concerned was wrong. 3. The Commission had failed to acknowledge receipt of, or to otherwise respond to, his group's proposal.

570

The complainant claimed that his group's proposal should be considered admissible for the call for proposals.

THE INQUIRY The Commission's opinion In its opinion, the Commission made the following comments: First allegation The proposal submitted by the complainant had been rejected for the following reasons: a. the proposal had not been submitted on the compulsory application form; b. the documents in the proposal had not been signed; c. the complainant's group was a profit-making entity (the call expressly stated that the applicant should be "non-profit making", Part III, 7, third indent); d. the documents submitted with the proposal did not contain the required information; e. it was not clear from the proposal that aid was actually applied for; instead, the documents submitted contained various comments as to how the aims described in the call for proposals could be achieved. Second allegation With regard to the complainant's second allegation, the Commission explained that excluding profit-making entities from the call had not been a question of "administrative practice". Rather, the decision to exclude profit-making entities was based on a number of specific considerations. In the first place, EU financial aid may not result in the realisation of profit by the recipients of EU aid. The risk of the realisation of profit was greater in the case of private profit-making entities than in the case of members of the civil society. Second, the civil society offers a multiplication effect, which was considered useful for the programme here concerned. Third, information on the EU enlargement distributed by civil society actors that work in the public interest can be expected to be more credible for citizens than information distributed by profit-making entities. The Commission explained that the content of the call for proposals had been the subject of extensive consultation within its services.

571

The Commission furthermore pointed out that the call had only given rise to the present complaint. The call covered all 25 Member States, and 576 proposals had been submitted. In the context of previous calls, in 2002 and 2003, for which identical admissibility conditions had been used, not a single complaint had been made. Third allegation The Commission stated that in the light of the large number of applications received (576), it had decided not to send out acknowledgements of receipt. The complainant's observations In his observations, the complainant maintained his allegation and expressed strong disagreement with the three reasons given by the Commission for excluding profitmaking entities from the call. As regards his third allegation, the complainant asked how it was possible that 576 applicants "who have worked for months on their proposals" were not shown the courtesy of an acknowledgement of receipt.

THE DECISION 1. Allegedly unjustified exclusion from call 1.1 The complainant, a German citizen living in the Czech Republic, belongs to a local group of television and film producers, journalists, script writers, animators, computer programmers and IT experts. He had requested the Commission for information on the possibility of submitting a proposal in response to Call for Proposals - Enlargement 2004, aimed at civil society and public SECTOR bodies in the European Union, Reference number: APESC 2004/EU-2. The general objective of the call was the dissemination of information to the general public and awarenessraising in relation to the following: a) the implications and consequences of the accession to the European Union of ten new Member States, b) the issues that arise as a result of the accession negotiations in progress with Bulgaria and Rumania and the candidacies of Turkey and Croatia, c) the implications of enlargement for the external relations of the EU with other European and non-European countries. In reply to an email sent to the Commission's Directorate General for Enlargement, the complainant had been informed that it was a long-standing administrative practice to exclude profit-making entities from the kind of programme here concerned, and that his group would therefore not fulfil the eligibility criteria. On 6 September 2004, the complainant wrote to the European Ombudsman arguing that the administrative practice referred to by DG Enlargement was contrary to free competition and that the practice in fact defied the written objectives referred to in the call for proposals by excluding important and relevant expertise held by private operators. In the hope that

572

the Commission might change its view on the matter, the complainant nevertheless submitted a proposal to the Commission on 25 September 2004. 1.2 The complainant alleged that the Commission's DG Enlargement had wrongly decided to exclude his group from the call for proposals referred to above. 1.3 In its opinion, the Commission stated that the proposal submitted by the complainant had been rejected for the following reasons: a. the proposal had not been submitted on the compulsory application form; b. the documents in the proposal had not been signed; c. the complainant's group was a profit-making entity (the call expressly stated that the applicant should be "non-profit making", Part III, 7, third indent); d. the documents submitted with the proposal did not contain the required information; e. it was not clear from the proposal that aid was actually applied for; instead, the documents submitted contained various comments as to how the aims described in the call for proposals could be achieved. 1.4 In his observations, the complainant did not dispute these alleged shortcomings in his group's proposal. 1.5 The Ombudsman has carefully examined the call for proposals here concerned. In the light of the conditions set out therein, and the facts referred to by the Commission, the Ombudsman considers that the Commission's decision to declare the proposal inadmissible appears to have been justified. There has accordingly been no maladministration regarding this aspect of the case. 1.6 In the light of this finding, the Ombudsman does not consider it necessary to examine the complainant's claim that his group's proposal should be considered admissible for the call for proposals. 2. Allegedly wrong decision to exclude profit-making entities 2.1 The complainant alleged that the "administrative practice" of excluding profitmaking entities from the kind of calls here concerned was wrong. 2.2 The Commission explained that excluding profit-making entities from the call had not been a question of "administrative practice". Rather, the decision to exclude profitmaking entities was based on a number of specific considerations. In the first place, EU financial aid may not result in the realisation of profit by the recipients of EU aid. The risk of the realisation of profit was greater in the case of private profit-making

573

entities than in the case of members of the civil society. Second, the civil society offers a multiplication effect, which was considered useful for the programme here concerned. Third, information on the EU enlargement distributed by civil society actors that work in the public interest is more credible for citizens than information distributed by profit-making entities. 2.3 In his observations, t he complainant maintained his allegation and expressed strong disagreement with the Commission's three reasons for excluding profit-making entities from the call. 2.4 The institutions of the European Union enjoy a wide discretion in laying down the selection criteria and other conditions in calls for proposals. The Ombudsman can, however, examine whether the institutions have acted within the limits of that discretion. 2.5 With regard to the Commission's first consideration - i.e., that there would be a greater risk of profit being made in the case of profit-making entities - the Ombudsman first points out that it was legitimate of the Commission to decide that the programme should not result in the realisation of profit by the recipients of the EU funds. However, this aim could presumably also have been attained by way of an express condition in the grant agreements concerned. The Commission's concern therefore seems to be based on the presumption that profit-making entities would be less likely to respect the conditions of the grant agreement than civil society actors. The Ombudsman has doubts as to whether such a presumption would in fact be justified. However, in the light of the finding in paragraph 2.6 below, the Ombudsman does not consider it necessary to inquire further into that issue in the present case. 2.6 With regard to the second and third considerations set out by the Commission, these essentially concern the advantages likely to derive by focussing the programme on civil society actors working in the public interest. The advantages referred to are, first, the multiplication effect of civil society and, second, the expectation that information will be perceived to be more credible when given by civil society actors than by profit-making entities. It does not appear to have been unreasonable of the Commission to consider that these advantages could be best obtained by focussing on civil society actors. In the Ombudsman's view, the complainant has therefore not established that the Commission acted beyond the boundaries of its discretionary powers when it decided to exclude profit-making entities from the call here concerned. There has therefore been no maladministration regarding this aspect of the case. 3. Alleged failure to acknowledge receipt 3 .1 The complainant alleged that the Commission had failed to acknowledge receipt of, or to otherwise respond to, his group's proposal.

574

3.2 In its opinion, t he Commission stated that in the light of the large number of applications received (576), it had decided not to send out acknowledgements of receipt. 3.3 In his observations, the complainant asked how it was possible that 576 applicants were not shown the courtesy of an acknowledgement of receipt. 3.4 It appears from the Commission's opinion that it understood the complainant's allegation essentially to concern the lack of an acknowledgement of receipt. The complainant's observations appeared to confirm this understanding of the allegation, which has therefore been examined accordingly. 3.5 According to good administrative practice, receipt of written communications requiring a reply should be acknowledged, unless a substantive reply can be made within a short period of time(1). In the present case, the complainant had, at the time when he submitted the allegation here concerned, received neither an acknowledgement of receipt nor a substantive reply. The Commission explained that the high number of proposals submitted in response to the call for proposals had led it to conclude that no acknowledgement of receipt should be sent. However, given the technical possibilities of preparing responses for a large number of proposals, the Ombudsman does not consider that the number of proposals in this case could reasonably justify the Commission's decision not to send an acknowledgement of receipt. The failure to send an acknowledgement of receipt was therefore an instance of maladministration, and the Ombudsman makes a critical remark below. 4. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: According to good administrative practice, receipt of written communications requiring a reply should be acknowledged, unless a substantive reply can be made within a short period of time. In the present case, the complainant had, at the time when he submitted the allegation here concerned, received neither an acknowledgement of receipt nor a substantive reply. The Commission explained that the high number of proposals submitted in response to the call for proposals had led it to conclude that no acknowledgement of receipt should be sent. However, given the technical possibilities of preparing responses for a large number of proposals, the Ombudsman does not consider that the number of proposals in this case could reasonably justify the Commission's decision not to send an acknowledgement of receipt. The failure to send an acknowledgement of receipt was therefore an instance of maladministration.

575

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

P. Nikiforos DIAMANDOUROS ------------------------Cf. Article 14 of the "European Code of Good Administrative Practice" proposed by the European Ombudsman and endorsed by the European Parliament (http://www.euro-ombudsman.eu.int/code/en/default.htm).
(1)

576

Decision of the European Ombudsman on complaint 2821/2004/OV against the European Commission

Strasbourg, 22 June 2005

Dear Mrs V., On 8 July 2004, you made a complaint to the European Ombudsman on behalf of MEDASSET concerning the European Commission's refusal to grant you full access to a mission report. On September 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 15 December 2004. I forwarded it to you with an invitation to make observations, which you sent on 7 February 2005. Also on 7 February 2005, I received a letter from Mrs Hiltrud Breyer MEP who expressed her concerns concerning the Commission's opinion on your complaint. On 16 February 2005, I forwarded this letter for information to you as well as to the President of the Commission. On 2 March 2005, you sent an e-mail thanking me for having sent you a copy of the said letter. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT The complainant is the Mediterranean Association to Save Sea Turtles (MEDASSET) which has closely followed the situation of the protection of sea turtles (Caretta caretta) in the Greek island of Zakynthos. According to the complainant, the relevant facts of the present complaint are as follows: By letter of 17 March 2004 addressed to DG Environment, the complainant applied for access to the report from the fact-finding mission of Members of the European Parliament's Committee on Petitions in November 2003 and the report from a European Commission visit of 7-9 September 2003 to the island of Zakynthos. By letter of 26 April 2004, DG Environment granted access to the first document, but refused access to the second document on the basis of Articles 4(2) and 4(3) of Regulation n 1049/2001(1). The Commission pointed out that, as the Greek authorities had not taken all the necessary measures to protect the sea turtle and comply with the judgement of the Court of Justice of 30 January 2002, it had initiated an infringement procedure under Article 228 of the EC Treaty(2). In order to check whether all the necessary measures had been taken, a Commission delegation visited the island of
577

Zakynthos in September 2003. The document requested by the complainant is directly related to the continuation of the infringement procedure and also contains opinions for internal use. The Commission further observed that the public interest in caretta caretta cannot be considered as overriding the interest in an effective conduct of investigations and of mutual trust between the Commission and Greece. The complainant was advised of the possibility to make a confirmatory application to the Secretary-General. On 4 May 2004, the complainant made a confirmatory application to the SecretaryGeneral. By letter of 10 June 2004, the Secretary-General replied, referring to the infringement procedure, that DG Environment decided not to grant access to this report in order to protect the Commission's investigations and in particular the negotiations between the Commission and the Greek authorities. The Secretary-General however decided to disclose large excerpts of the mission report, blanking out, on the basis of Articles 4(2), third indent, and 4(3) of Regulation 1049/2001, those parts containing technical or legal assessments or opinions related to the ongoing proceedings, as disclosure of these parts would undermine the ongoing investigation and the Commission's decision-making process in this case. He observed that the public interest in disclosing these parts does not outweigh the need to safeguard the Commission's capacity to ensure that the Greek authorities will comply with the Court's judgement as soon as possible. By letter of 8 July 2004, the complainant made the present complaint to the Ombudsman claiming unrestricted access to the Commission's mission report of the visit to the island of Zakynthos of 7-9 September 2003.

THE INQUIRY The Commission's opinion The Commission first described the background to the case. Complaints to the European Commission led to the launching of infringement proceedings in 1998 and the case was brought before the Court of Justice (Case C-103/00). In its judgement of 30 January 2002(3), the Court held that Greece had failed to fulfil its obligations under Article 12 of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora. The Commission has been monitoring the action taken by Greece in order to comply with the said judgement. Following an exchange of correspondence and a first visit in September 2002, the Commission was not satisfied that Greece had taken all necessary measures to comply with the judgement. On 19 December 2002, a letter of formal notice was therefore sent to the Greek authorities on the basis of Article 228 of the EC Treaty. A Commission delegation visited the site again from 7 to 9 September 2003 and concluded that, although Greece had not fully complied with the judgement,

578

substantial progress had been made towards establishing a system of strict protection for the sea turtle on Zakynthos. In April 2004 however, the National Marine Park of Zakynthos, which is the Management Body of the protected area, closed temporarily due to lack of funding, and, as a result, has not been able to fulfil its obligations for the 2004 nesting season and to contribute towards an effective implementation of the existing legal framework. On 13 October 2004, the Commission thus issued a reasoned opinion under Article 228 of the EC Treaty, considering that Greece had failed to comply fully with the Courts judgement of 30 January 2002. In 2001, the European Parliament received two petitions from landowners who considered that the measures taken by the Greek authorities for the protection of the sea turtles on Zakynthos had infringed their property rights. Some members of Parliament's Committee on Petitions carried out a fact-finding mission in Zakynthos on 8 and 9 November 2003. As regards the complaint, the Commission argued that, since it had re-opened infringement proceedings under Article 228 of the EC Treaty by sending a letter of formal notice and a reasoned opinion to Greece, in December 2002 and October 2004 respectively, the case is still pending. The Commission continues to monitor the measures taken by the Greek authorities with a view to ensuring compliance with the Court's judgement. During the visit in September 2003, the Commission delegation found that the situation was still not fully satisfactory. The case was therefore not closed and the option to pursue infringement proceedings remains open. When handling the complainant's confirmatory application, the Commission duly took into account the public interest in disclosing information on the question of the conservation of sea turtles. For that reason, it was decided to disclose large excerpts of the report, withholding only parts containing opinions or assessments by the members of the Commission delegation relating to questions which are subject to discussion with the Greek authorities. Full disclosure of the report would adversely affect the ongoing discussions with the Greek authorities and would seriously prejudice the decision to be taken by the Commission as regards closing or pursuing the infringement proceedings. Consequently, the Commission considers that the refusal to disclose these specific parts of the report is justified under Articles 4(2), third indent, and 4(3), first subparagraph of Regulation 1049/2001. Furthermore, the public interest in disclosure of these parts does not outweigh the risk of affecting the ongoing investigation and the discussions with the Greek authorities. The Commission is confident that Greece will voluntarily comply with the Court's judgement. In order to achieve this, it is necessary to keep some information confidential. This practice is supported by the Community case law, e.g. in the judgement of the Court of First Instance in case T-191/99(4).

579

Finally, the Commission stressed the fact that, in the handling of the infringement case, it has given due consideration to all information supplied by MEDASSET, that it has thanked MEDASSET for providing this information and has regularly informed the complainant of the developments in this case. The complainant's observations The complainant observed that the Commission delegation that visited Zakynthos was composed only of Greeks and that therefore, unless the content of the report is revealed, the complainant cannot be sure of the impartiality of the delegation. The complainant wondered why, if the delegation concluded that substantial progress had been made towards establishing a system of strict protection for the caretta caretta, it is not a matter of supreme public interest how and why they came to that conclusion, especially when it is apparently obvious to any observer that the sea turtle protection remains unimplemented. The finding of the delegation is also contradicted by the Commission itself in its reasoned opinion of 13 October 2004 which considers "that Greece has failed to comply with the Courts judgement of 30 January 2002". This gives further public interest to the conclusions of the Commission delegation. The "large excerpts" of the report disclosed to MEDASSET were the general preamble and facts already known. Nothing was disclosed concerning what the delegation had done, whom they met, what evidence was gathered and what steps had been taken to ensure the accuracy of the evidence. Four months have elapsed since the reasoned opinion of 13 October 2004 and the Greek government has not acted. The Commissioner for Environment suggested patience and lobbying, but how could NGOs lobby when they are denied access to pertinent facts? To say that full disclosure of the report would adversely affect the ongoing discussions with the Greek authorities and would seriously prejudice the decision to be taken by the Commission as regards closing or pursuing the infringement proceedings is totally fatuous. It also raises the question of what ongoing discussions are taking place. Now that the EU Member States have adopted the rhus Convention, the complainant trusts that the Ombudsman can prevail on the Commission to release the undeniably controversial report. In conclusion, the need to avoid any action that would reduce the chances of achieving compliance by Greece with the judgement of the Court in case C-103/00 would seem a rather pathetic thing to say, when the pressures by the Commission, NGOs and the public had no effect four years after the judgement was pronounced.

580

THE DECISION 1. The claim for unrestricted access to the Commission's mission report 1.1 The complainant claims unrestricted access to the Commission's mission report of the visit to the island of Zakynthos of 7-9 September 2003. 1.2 According to the Commission, the delegation which carried out the visit concluded that, although Greece had not fully complied with the judgement of the Court of Justice in Case C-103/00, substantial progress had been made towards establishing a system of strict protection for the sea turtles on Zakynthos. The Commission stated that, since it had re-opened infringement proceedings under Article 228 of the EC Treaty by sending a letter of formal notice and a reasoned opinion to the Greek authorities, in December 2002 and October 2004 respectively, the infringement case is still pending and the option to pursue infringement proceedings remains open. When handling the complainant's confirmatory application for access, the Commission duly took into account the public interest in disclosing information on the question of the conservation of sea turtles. For that reason, it was decided to disclose large excerpts of the report, withholding only parts containing opinions or assessments by the members of the Commission delegation relating to questions which are subject to discussion with the Greek authorities. The Commission stated that full disclosure of the report would adversely affect the ongoing discussions with the Greek authorities and would seriously prejudice the decision to be taken by the Commission as regards closing or pursuing the infringement proceedings. The Commission therefore considers that the refusal to disclose these specific parts of the report is justified under Articles 4(2), third indent, and 4(3), first subparagraph, of Regulation 1049/2001. Furthermore, the public interest in disclosure of these parts does not outweigh the risk of affecting the ongoing investigation and the discussions with the Greek authorities. The Commission observed that its position is also supported by the case law of the Community courts. 1.3 In its observations, the complainant pointed out that nothing had been disclosed concerning what the Delegation had done, whom they met, what evidence was gathered and what steps had been taken to ensure the accuracy of the evidence. 1.4 The Ombudsman firstly notes that point 13 of the Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(5) provides that access to documents on infringement cases is governed by Regulation 1049/2001, as implemented by the Commission Decision of 5 December 2001 amending its Rules of Procedure. 1.5 The access requested by the complainant concerns a mission report from a delegation of DG Environment of the Commission entitled "Visit to Zakynthos (7-9

581

September 2003) Compliance of Greece with the Court judgement in the Caretta caretta case". It appears from the documents enclosed with the complaint that the complainant was granted access to the two-page document - which was enclosed with the Commission's reply of 10 June 2004 to the complainant's confirmatory application - with the exception of three parts on the second page which have been deleted. 1.6 In this regard, the Ombudsman notes that Article 4 (3), first subparagraph, of Regulation 1049/2001 provides that "(a)ccess to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure". 1.7 The Ombudsman considers that it is obvious that the inspection report in question is a document drawn up for internal use by the Commission and that it relates to an on-going infringement proceeding under Article 228 of the EC Treaty. The Ombudsman therefore considers that the Commission could reasonably take the view that it was entitled to refuse access to the said document on the basis of Article 4 (3), first subparagraph, of Regulation 1094/2001, subject to the question of a possible overriding public interest in disclosure, which is dealt with in point 1.14 below. 1.8 The Ombudsman points out that, once the Commission has taken a final decision either to bring the matter before the Court of Justice or to close the case, the exemption under Article 4 (3), first subparagraph, will no longer apply(6). 1.9 In its reasoning to refuse the requested document, the Commission also referred to Article 4 (2), third indent, of Regulation 1049/2001. 1.10 With this regard, the Ombudsman notes that Article 4(2) of Regulation 1049/2001 provides that "(t)he institutions shall refuse access to a document where disclosure would undermine the protection of: (...) the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure". 1.11 The report in the present case appears to relate to the activities of inspections, investigations and audits referred to in the above Article. However, the fact that the document at issue concerns an inspection cannot in itself justify application of the exception invoked(7). The Ombudsman shall thus determine whether there is evidence, in the present case, that the Commission erred in its assessment that disclosure of the report could undermine the protection of the purpose of inspections, investigations and audits. 1.12 In that regard, the Ombudsman notes that, at the time when the complainant made its request for access to the mission report in March and May 2004, the Commission was still pursuing the administrative phase of the infringement procedure under Article 228 of the EC Treaty, and in fact decided some months later to send a

582

reasoned opinion to the Greek authorities. It appears moreover that the Commission is currently still pursuing that infringement procedure. 1.13 The Ombudsman takes the view that, in the light also of the case-law of the Court of First Instance(8), the Commission could reasonably take the view that the disclosure of the parts of the mission report to which it refused access would undermine the protection of the purpose of its investigation. The Commission was therefore entitled to refuse access on the basis of Article 4 (2), third indent, of Regulation 1049/2001, unless there was an overriding public interest in disclosure. 1.14 As regards the question of a possible overriding public interest in disclosure, the Ombudsman notes that, in its observations, the complainant puts forward two arguments. The complainants first argument is that there is a public interest in knowing how and why the delegation came to the conclusion that substantial progress had been made towards establishing a system of strict protection, since it is obvious that protection for the sea turtle remains unimplemented and the delegations conclusion was contradicted by the Commissions subsequent reasoned opinion. The complainant also argues in this context that, unless the content of the report is revealed, the complainant cannot be sure of the impartiality of the delegation. The complainants second argument is that NGOs cannot lobby effectively when they are denied access to the pertinent facts. The Ombudsman takes the view that these arguments need to be examined in relation to the specific grounds of exemption invoked by the Commission and that the first argument is relevant only to the protection of the Commissions decision-making process, whereas the second argument is relevant only to the protection of the purpose of inspections, investigations and audits. As regards the complainants first argument, the Ombudsman takes the view that the words substantial progress towards necessarily imply that further progress would be needed before the required result of compliance with the judgement of the Court of Justice could be considered to have been adequately achieved. In these circumstances, the Ombudsman is not convinced that there is any obvious contradiction between the findings of the delegation, as reported by the Commission, and the facts as presented by the complainant or the Commissions subsequent reasoned opinion. The Ombudsman does not therefore consider that the issues raised by the complainant could demonstrate an overriding public interest in disclosure and so concludes that the Commission could refuse access to the document under Article 4 (3), first subparagraph, of Regulation 1049/2001. The Ombudsman considers that evaluation of the complainants second argument would necessitate an inspection by the Ombudsman of the document in question. However, given that the Ombudsman has already concluded that the Commission

583

could refuse access to the document under Article 4 (3), first subparagraph, of Regulation 1049/2001, the Ombudsman considers that it would not be justifiable to delay a decision on the case in order to inspect the document. 1.15 On the basis of the above, the Ombudsman found no instance of maladministration by the Commission. The Ombudsman recalls, however, that the Court of Justice of the European Communities is the highest authority regarding the interpretation of Community law. 2. Conclusion On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision, as well as Mrs Hiltrud Breyer MEP. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Regulation n 1049/2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145/43. Article 228 of the EC Treaty applies when a Member State fails to take the necessary measures to comply with a judgement given by the Court of Justice under Article 226. The provision allows the Commission to bring the case before the Court of Justice and to propose a lump sum or penalty payment to be paid by the Member State concerned. [2002] ECR I-01147. Case T-191/99, Petrie v. Commission, ECR 2001 II-3677, paragraph 68. OJ 2002 C 166/3.

(2)

(3)

(4)

(5)

(6)

Article 4 (3), second subparagraph, contains a more narrowly worded exemption: Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously

584

undermine the institution's decision-making process, unless there is an overriding public interest in disclosure See, with regard to inspection reports, in particular Case T-20/99, Denkavit Nederland BV v Commission, 2000 ECR II-3011.
(8) (7)

See, in particular Case T-105/95, WWF UK v Commission, 1997 ECR II-313, paragraph 63, and Case T-191/99, Petrie and Others v Commission, 2001 ECR II3677, paragraph 68.

585

Decision of the European Ombudsman on complaint 2862/2004/GG against the European Commission

Strasbourg, 26 May 2005

Dear Dr. K., On 17 September 2004, you made, acting on behalf of Internationaler Hilfsfonds e.V., a complaint against the European Commission to the European Ombudsman. This complaint concerned the case that had already given rise to complaint 1702/2001/GG. On 30 September 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 1 February 2005. I forwarded it to you on 2 February 2005 with an invitation to make observations, which you sent on 17 March 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT Background In the present complaint, the complainant (a German NGO) asked the Ombudsman to carry out a further inquiry in relation to a case that had already given rise to complaint 1702/2001/GG. This complaint had been closed by the Ombudsman by his decision of 21 May 2002 in which a number of critical remarks were made. Complaint 1702/2001/GG In 1995/1996(1), the complainant applied to the Humanitarian Aid Office of the European Communities ("ECHO") with a view to signing the Framework Partnership Agreement ("FPA"). In a letter dated 1 June 1999, ECHO informed the complainant that a new FPA had entered into force on 1 January 1999. The compliance with the eligibility criteria by NGOs like the complainant would be checked in the third part of a three-stage procedure. On 14 December 2000, ECHO informed the complainant that after having signed the new agreement with the signatory organisations of the previous FPA, it was now able to analyse the 400 NGO applications it had received, including the complainants. In a letter of 1 February 2001, ECHO informed the complainant that upon receiving its application in 1995 it had, [i]n line with the normal conditions for signing the Framework Partnership Agreement (FPA), asked the German national authorities for
586

confirmation of the complainants suitability. In a further letter of 19 July 2001, ECHO explained that in the absence of a positive response from the German authorities, it had not been able to treat its application. ECHO subsequently decided to check the complainants compliance with the eligibility criteria by means of an audit. Since the complainant did not agree to such an audit, ECHO informed it on 26 September 2001 that in so far as ECHO was concerned, the debate about the complainants application to the FPA was closed. In its complaint to the Ombudsman lodged in 2001 (complaint 1702/2001/GG), the complainant in substance made the following allegations: (1) ECHOs failure to react to its original application lodged in 1995 was an instance of discrimination and maladministration; (2) ECHO had failed to give it the opportunity to be heard regarding the information provided by the German Foreign Office in 1995; (3) No potential partner could be expected to submit proposals on the basis of such vague information as was contained in ECHOs letter of 14 December 2000. It thus appeared that ECHO wished to protect its existing partners from undesirable competition by other NGOs; (4) ECHOs insistence to have the complainants compliance with the eligibility criteria checked by means of an audit was an instance of discrimination and maladministration, given that ECHO had signed the new FPA with NGOs who have already obtained several operational contracts with ECHO but were not able to sign the [previous] FPA (see ECHOs letter of 1 February 2001); and (5) ECHO refused to grant full access to its file. The Commission's opinion In its opinion, the Commission noted that on 16 February 1995, ECHO had sent a fax to the competent German authority, the Foreign Office, requesting information on the complainant. On 15 March 1995, the Foreign Office had forwarded the following reply: According to our informations this NGO works also under the name of Welthilfe e.V. Their activities have given reasons for official prosecution, which are still under way. Therefore, you please allow me to refrain from any recommendation at this stage. As far as we are informed, the DG 8 would be able to add to your informations.

587

According to the Commission, ECHO had reiterated its request for information to the German authorities in October 1995. In an internal note dated 17 November 1995 ECHO's adviser for institutional relations, Mr C., had informed the ECHO official in charge of the file that the German authorities were unable to give any reference concerning the complainant: Son bureau ne travaille pas avec cette organisation et donc ne les connait pas. The Commission added that "[d]espite continuous contacts between ECHO and the German Foreign Office in the context of verification of German NGOs, no further information was provided by the German authorities concerning [the complainant] until 15 November 2001." The Ombudsman's decision In his decision of 21 May 2002 closing the inquiry into complaint 1702/2001/GG, the Ombudsman came to the following conclusions: In so far as the first allegation was concerned, the Ombudsman considered that ECHOs failure to react to the original application constituted maladministration. Three critical remarks were therefore made. The Ombudsman noted, however, that the complainant had not established that the Commission's behaviour also amounted to discrimination. The Ombudsman also found maladministration as regards the second allegation. A further critical remark was made in this respect. The critical remarks were worded as follows: It is good administrative practice that applications should be examined in the light of the requirements to which they are subjected by the rules in force(2). In the present case, the Commission considered that the complainants application could not be handled in the absence of a reference from the German authorities. However, neither of the provisions relevant for this case contained a condition to the effect that such a reference was needed before an application could be approved. ECHOs decision not to deal with the application on the grounds that a reference from national authorities was missing, thus constituted an instance of maladministration. Principles of good administration require that applicants are kept informed about the decisions the administration adopts in their regard, all the more so if such information is requested by applicants(3). In the present case, the Commission alleges that in the absence of a reference from the national authorities, it decided to suspend the treatment of the application. The Ombudsman notes that this decision (if it was indeed taken) was never brought to the complainants attention, although the latter had inquired about the state

588

of the procedure at least once. ECHOs failure to keep the complainant informed about this decision thus constituted a further instance of maladministration. Finally, it is good administrative practice to deal with applications within a reasonable time(4). In the present case, no decision was taken and communicated to the complainant on the application lodged in March 1996 before the expiry of the first FPA at the end of 1998. As a matter of fact, it took the Commission more than three years before it informed the complainant, in its letter of 1 June 1999, about the approach it intended to pursue in its regard. No valid explanation was presented by the Commission for this delay. The Ombudsman thus concludes that ECHOs failure to deal with the application within a reasonable period constitutes a third instance of maladministration. Principles of good administrative practice require that an applicant has the right, in cases where a decision affecting his rights or interests is taken, to submit comments before the decision is taken(5). In the present case, ECHO decided to suspend the complainants application on the basis of information received from the German authorities without giving the complainant the chance to comment on this information. This constitutes a further instance of maladministration. No maladministration was found with regard to the last three allegations of the complainant. The complainants request to review parts of the decision In a letter of 24 May 2004, the complainant made various remarks about the behaviour of the Commission in general and asked the Ombudsman to review certain aspects of his decision. In his detailed reply of 21 June 2004, the Ombudsman addressed the points raised by the complainant and informed the latter that he saw no grounds for changing the decision on complaint 1702/2001/GG. The present complaint On 17 September 2004, the complainant requested the Ombudsman to open a new inquiry concerning the following issues: In its opinion in case 1702/2001/GG, ECHO had pointed at its correspondence with the German Foreign Office in 1995 and had submitted that, despite continuous contacts between ECHO and the German Foreign Office, no further information concerning the complainant had been provided by the German authorities until 15 November 2001. According to the complainant, the same statement had been repeated in the Commission's Statement of Defence in Case T-372/02 of 25 February 2003. In

589

its new complaint, the complainant referred to information that it had received from the German Foreign Office. According to this information, which is contained in a letter dated 4 July 2002, the German Foreign Office had not felt obliged to provide ECHO with further information regarding the complainant after its letter of 15 March 1995, and ECHO had never asked it about the state of the proceedings to which it had referred in this letter. In the light of these circumstances, the complainant alleged that ECHO had, contrary to its own statements, never tried to obtain up-to-date, relevant and ascertainably correct information on it, and had lied to the Ombudsman in its opinion in case 1702/2001/GG. The complainant further alleged that ECHO's handling of its application showed that ECHO had acted in a deliberately fraudulent way. The complainant also alleged that ECHO's reproach according to which it had not declared itself willing to be subjected to an audit was incorrect. In this context, the complainant referred to a letter that it had sent to the Commission on 19 May 2004 (a copy of which was sent to the Ombudsman) in which it described in detail its offers to the Commission to carry out an audit. The complainant also alleged that the letter of the German Foreign Office of February 1995 had failed to respect the principle according to which the innocence of a person has to be presumed.

THE INQUIRY The Ombudsman's approach The Ombudsman considered that although the complainant's allegations were related to the subject-matter of complaint 1702/2001/GG, they were not covered by the latter. He therefore decided that an inquiry should be started to examine these allegations against the Commission. The complaint was therefore sent to the Commission for its opinion. At the same time, the Ombudsman informed the complainant that he was unable to deal with a complaint against the German Foreign Office, given that the latter was not a Community institution or body within the meaning of Article 195 of the EC Treaty. The Commission's opinion In its opinion, the Commission made the following comments: Admissibility The complainant had lodged an action based on the same facts as the present complaint with the Court of First Instance on 13 December 2002 (Case T-372/02). On

590

15 October 2003, the Court had dismissed this action as inadmissible. The complainant had lodged an appeal on 15 December 2003 (Case C-521/03 P)(6). The Ombudsman should therefore terminate his inquiry on the basis of Articles 1 (3) and 2 (7) of his Statute. The present complaint dealt with the Commission's decision to reject the complainant's application to sign the FPA. This decision had been adopted on 19 July 2001 and communicated to the complainant on the same date. Notwithstanding references made by the complainant to letters sent and statements made at a later date, this complaint was therefore based on a decision taken more than three years earlier, and there were no new facts to assess. The complaint should therefore also be declared inadmissible in accordance with Article 2 (4) of the Statute of the Ombudsman. The Commission's decision rejecting the complainant's application to sign the FPA had already been the subject of an inquiry by the Ombudsman. In view of the general principles of "res iudicata" and "ne bis in idem" a new inquiry was therefore inadmissible. The issues If the Ombudsman were to find the complaint admissible, it would nonetheless be unfounded. (1) As regards the first allegation The relevant statement could not be interpreted as suggested by the complainant. In point 45 of its Statement of Defence in Case T-372/02, the Commission had made the following statement: "In the light of the information received from the German Foreign Office, questioning the probity of Mr. [K.] and three employees of [the complainant], ECHO decided to suspend the treatment of [the complainant's] application pending further information on the ongoing judicial proceedings against [the complainant's] chairman and its staff. ECHO while taking note, did not pass this information to the complainant pending a definitive answer. Despite continuous contacts between ECHO and the German Foreign Office in the context of verification of German NGOs, no further information was provided by German authorities concerning [the complainant] until 15.11.2001." This full quote clearly presented a situation where the Commission services waited for a follow up. The Commission had never pretended otherwise. In the period 1993-1998, ECHO signed 16 FPAs with German NGOs. In all these cases, contacts were established with the German Foreign Office and references were provided to ECHO. In some cases, the German Foreign Office updated or confirmed the information previously forwarded. In none of its contacts with the Commission did the German Foreign Office forward updated information on the complainant. This information was eventually forwarded to ECHO on 15 November 2001.

591

In the context of an application where the probity of the applicant was one of the elements at stake, the complainant had a duty to provide information on such a relevant issue. At the time of presenting the application to sign the FPA, criminal procedures were open against the complainant's chairman in Germany. The complainant failed to disclose this vital point. It remained inexplicable to the Commission why this question had not been mentioned by the complainant and why it had not been considered relevant by the Ombudsman. Nevertheless, the Ombudsman had already given its opinion on the overall question of the legitimacy of the Commission's procedure and methods to obtain references from national authorities on 21 May 2002. After receiving this opinion, the Commission had revised and made transparent its consultation procedure(7). (2) As regards the second allegation The Commission failed to see the grounds on which the complainant based its statement that the Commission had dealt with the application in a "deliberately fraudulent" way. The Ombudsman's attention was drawn to the verbal abuse that characterised the complainant's writing style. (3) As regards the third allegation The decision to reject the complainant's application to sign the FPA had been based on the latter's refusal to be audited by ECHO. In his opinion of 21 May 2002, the Ombudsman had considered that the Commission had not abused its discretional power in proposing such an audit to the complainant. The complainant's assertion that it had been willing to undergo an ECHO audit was by no means demonstrated by its letter to Mr Prodi of 19 May 2004. In this letter, the complainant made an effort to demonstrate that it had shown to DG VIII its readiness to be checked by that service. The complainant's affirmation that "due to the existent relations between DG VIII and ECHO, the latter was aware of [the complainant's] [in] principle readiness to be audited according to the Commission's criteria" was a purely conjectural argument that had furthermore been introduced long after the facts. On the contrary, documentary evidence, already provided to the Ombudsman in the framework of complaint 1702/2001/GG, contradicted the complainant's assertion. The complainant's observations In its detailed observations, the complainant maintained its complaint and made the following further comments: The Commission had failed adequately to address the allegations that had been made. The German Foreign Office had confirmed that ECHO had not requested any further information from it after 15 March 1995 regarding the investigation against the complainant. This clearly showed that the Commission had misled and lied to the

592

Ombudsman. The letter addressed to the Commission by the German Foreign Office on 15 November 2001 had been the result of the complainant's intervention and not to any "continuous contacts between ECHO and the German Foreign Office" which did not exist. ECHO had failed properly to handle the application. It had acted fraudulently in this respect, given that it had deliberately kept secret the fact that the application had not been processed. Although ECHO had been informed by spring 1996 at the latest that the proceedings against the persons in charge at the complainant had been terminated, it had continued to exclude the complainant. ECHO must have become aware of the fact that the information submitted to it by the German Foreign Office needed to be reviewed at the latest when it was informed, through the note dated 17 November 1995, that the German Foreign Office did not know the complainant. By insisting on an audit, the Commission discriminated against the complainant. When handling the complainant's application to sign the FPA, the Commission had infringed Articles 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the European Code of Good Administrative Behaviour. As regards the alleged infringement of Article 12 of the Code in particular, the complainant noted that the Commission had not even apologised for its behaviour.

THE DECISION 1. Introductory remarks 1.1 In 1995/1996, the complainant, a German NGO, applied to the Humanitarian Aid Office of the European Communities ("ECHO") with a view to signing the Framework Partnership Agreement ("FPA"). This application was finally rejected on 19 July 2001. The Commission's handling of this application gave rise to a first complaint submitted by the complainant in 2001 (complaint 1702/2001). In his decision of 21 May 2002 closing the inquiry into this complaint, the Ombudsman made several critical remarks. 1.2 On 17 September 2004, the complainant submitted the present complaint which concerns the same case. The Ombudsman took the view that although the three allegations raised by the complainant in the present complaint were related to the subject-matter of complaint 1702/2001/GG, they were not covered by the latter. He therefore decided that an inquiry should be started to examine these allegations and asked the Commission for its opinion. 1.3 In its opinion, the Commission took the view that the complaint was inadmissible (1) because it was based on the same facts as an action that the complainant had

593

brought before the Community courts, (2) because it had been lodged out of time and (3) because the Ombudsman had already dealt with the matter. 1.4 As regards the Commission's first objection, Article 1 (3) of the Statute of the European Ombudsman(8) provides that the Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling. Article 2 (7) of the Statute directs the Ombudsman to terminate an inquiry where legal proceedings are brought "concerning the facts which have been put forward". The Ombudsman notes that the action brought by the complainant before the Court of First Instance (Case T-372/02) aimed at (i) the annulment of the Commission's decision of 22 October 2002 rejecting the complainant's application to sign the FPA, (ii) an order requiring the Commission either to reinstate the complainant in the position it had had in 1996 or to invite it to sign the FPA now in force and (iii) an order requiring the Commission to reimburse to the complainant the costs of its complaint to the Ombudsman. In the Ombudsman's view, the three allegations submitted by the complainant in the present complaint differ from the case on which the Court had to rule. In these circumstances, Articles 1 (3) and 2 (7) of the Ombudsman's Statute do not oblige the Ombudsman to terminate the present inquiry without considering these allegations. In any event, the Ombudsman considers that the above-mentioned provisions are only applicable where a court has dealt with the merits of a case. There is no good reason to prevent a complainant from asking the Ombudsman to deal with a complaint where a court has rejected an action alleging the same facts without looking at the substance of this case. However, the Ombudsman notes that the Court rejected the action in Case T-372/02 as inadmissible in its entirety and that the Court of Justice on appeal confirmed this decision(9). 1.5 As regards the Commission's argument that the complaint was lodged out of time, Article 2 (4) of the Ombudsman's Statute provides that a complaint shall be made "within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint". The Commission submits that the complaint is based on the decision of 19 July 2001 and that there are no new facts to assess. It should however be noted that the complainant relies, as regards the first two of his allegations, on information that it obtained from the German Foreign Office in 2002, that is to say after the Commission's decision of 19 July 2001. The Ombudsman considers that this new information does indeed shed new light on the case (see point 2.5 below). It should further be noted that the complainant emphasises the fact that the statement at which it takes exception in its allegation was repeated in the Commission's Statement of defence in Case T-372/02 in 2003. In these circumstances, the Ombudsman takes the view that the Commission has not substantiated its claim that the complainant failed to comply with Article 2 (4) of the Ombudsman's Statute when bringing the present complaint. 1.6 As regards the Commission's view that a new inquiry is inadmissible in view of the general principles of "res iudicata" and "ne bis in idem", suffice it to say that these principles are only applicable to judicial remedies whereas recourse to the Ombudsman is an extra-judicial remedy.

594

1.7 In view of the above, the Ombudsman concludes that the present complaint is admissible. 1.8 In its observations on the Commission's opinion, the complainant submitted what would appear to be a substantial number of new allegations. These new allegations concern the Commission's handling of the complainant's application to sign the FPA. It should be stressed that the Ombudsman has already examined the Commission's handling of the complainant's application to sign the FPA in the context of his inquiry into complaint 1702/2001/GG and that a number of critical remarks were made by the Ombudsman in his decision closing this inquiry. The Ombudsman considers that the complainant has not shown why a further inquiry into these allegations should be justified nearly four years after the Commission's decision of 19 July 2001 to reject the application. 1.9 In its opinion, the Commission submits that the complainant failed to disclose the fact that criminal procedures were open against the complainant's chairman in Germany at the time when the relevant application was made(10). The Commission expressed the view that it remained inexplicable why this issue had not been mentioned by the complainant and why it had not been considered relevant by the Ombudsman. The Ombudsman considers that two remarks should be made in this context. First, although the Commission was informed about the relevant investigation through the German Foreign Office's note of 15 March 1995, the Commission never invoked this fact as a reason for rejecting the application. What is more serious, the Commission never gave the complainant a possibility to comment on this issue before the latter became aware of the information transmitted by the German Foreign Office on the occasion of the Ombudsman's inquiry into complaint 1702/2001/GG. It should further be noted that the Commission does not appear to have offered any apology to the complainant for the peculiar way in which its application had been handled. In these circumstances, the Ombudsman is unable to accept the Commission's argument that the complainant's failure to mention the relevant investigation ought to have been considered relevant by the Ombudsman. Second, the Commission does not dispute the complainant's argument that this investigation was closed in April 1996. It furthermore appears that other services of the Commission were informed accordingly already in spring 1996 and that ECHO was exchanging information with these services. The Ombudsman therefore finds it difficult to understand why the Commission still invokes the relevant investigation in order to justify the way in which it handled the complainant's application. 2. Allegedly untruthful statements made by the Commission 2.1 In its opinion in case 1702/2001/GG, the Commission had pointed at its correspondence with the German Foreign Office in 1995 and had submitted that, despite continuous contacts between ECHO and the German Foreign Office, no further information concerning the complainant had been provided by the German authorities until 15 November 2001. The same statement had been repeated in the Commission's Statement of Defence in Case T-372/02 of 25 February 2003. In its

595

present complaint, the complainant referred to information that it had received from the German Foreign Office. According to this information, which is contained in a letter dated 4 July 2002, the German Foreign Office had not felt obliged to provide ECHO with further information regarding the complainant after its letter of 15 March 1995, and ECHO had never asked it about the state of the proceedings to which it had referred in this letter. In the light of these circumstances, the complainant alleged that ECHO had, contrary to its own statements, never tried to obtain up-to-date, relevant and ascertainably correct information on it, and had lied to the Ombudsman in its opinion in case 1702/2001/GG. 2.2 In its opinion on the present complaint, the Commission submitted that the relevant statement could not be interpreted as suggested by the complainant. In point 45 of its Statement of Defence in Case T-372/02, the Commission had made the following statement: "In the light of the information received from the German Foreign Office, questioning the probity of Mr. [K.] and three employees of [the complainant], ECHO decided to suspend the treatment of [the complainant's] application pending further information on the ongoing judicial proceedings against [the complainant's] chairman and its staff. ECHO, while taking note, did not pass this information to the complainant pending a definitive answer. Despite continuous contacts between ECHO and the German Foreign Office in the context of verification of German NGOs, no further information was provided by German authorities concerning [the complainant] until 15.11.2001." According to the Commission, this full quote clearly presented a situation where the Commission services had waited for a follow up. The Commission submitted that it had never pretended otherwise. 2.3 Article 195 of the EC Treaty entrusts the European Ombudsman with the task of conducting inquiries into possible instances of maladministration in the activities of the Community institutions and bodies. Article 2 (2) of his Statute directs the Ombudsman to inform the institution or body concerned as soon as a complaint is referred to him. According to Article 3 (1) of the Ombudsman's Statute, the institution or body concerned "may submit any useful comment to him". Article 3 (2), first subparagraph of the Ombudsman's Statute provides as follows: "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy." 2.4 In view of these provisions, the Ombudsman takes the view that it would not be consistent with the obligation imposed by Article 3 (2), first sub-paragraph of the Ombudsman's Statute for a Community institution or body to supply inaccurate or misleading information to the Ombudsman during the course of an inquiry. 2.5 In the present case, the Ombudsman accepts that the interpretation offered by the Commission in respect of the relevant statement is compatible with the wording of the latter. It should be noted, however, that in this same statement the Commission claimed that "a definitive answer" was still expected from the German Foreign Office. In these circumstances, the reference to "continuous contacts between ECHO and the

596

German Foreign Office" was bound to be understood as referring to contacts concerning the complainant's case (and not to contacts concerning other German NGOs). However, the Commission does not appear to dispute that no such contacts were made after the one described in the note dated 17 November 1995. In any event, the absence of such contacts is also confirmed by the German Foreign Office's letter of 4 July 2002, the contents of which were not challenged by the Commission. It should further be noted that the note of 17 November 1995(11) states that the German Foreign Office did not know the complainant and that further information on the complainant might be available from a Commission official in Directorate-General VIII. In this note, there is no reference to any "definitive" answer that was still due from the German Foreign Office. Besides, it is difficult to see what kind of definitive answer could still be expected from an institution that had declared that it did not know the complainant. 2.6 In these circumstances, the Ombudsman considers that the Commission's statement, according to which no further information was provided by German authorities concerning the complainant "[d]espite continuous contacts between ECHO and the German Foreign Office in the context of verification of German NGOs", was misleading. This constitutes an instance of maladministration. A critical remark will be made in this context. 2.7 In its observations on the Commission's opinion, the complainant submitted that the relevant statement constituted a lie. Although the statement was certainly misleading, the Ombudsman considers that there is not enough evidence to show that it constituted a deliberate lie. 3. As to the deliberately fraudulent way of handling the application 3.1 The complainant alleged that ECHO's handling of its application showed that ECHO had acted in a deliberately fraudulent way. 3.2 In its opinion, the Commission pointed out that it failed to see the grounds on which the complainant based its statement that the Commission had dealt with the application in a "deliberately fraudulent" way. The Commission further drew the Ombudsman's attention to what it considered the verbal abuse that characterised the complainant's writing style. 3.3 As the Ombudsman has found in his decision on complaint 1702/2001/GG, the Commission's way of handling the complainant's application to sign the FPA was incorrect and deficient in several respects. These aspects are summarised in the critical remarks that were made by the Ombudsman in his decision closing the inquiry into that case. Having carefully examined the arguments submitted by the complainant, the Ombudsman considers, however, that the complainant has not been able to substantiate its allegation that the Commission had acted in a deliberately fraudulent way when handling its application.

597

3.4 In these circumstances, no maladministration can be found as regards the second allegation submitted by the complainant. 4. Allegedly incorrect reproach concerning audit 4.1 The complainant alleged that ECHO's reproach according to which it had not declared itself willing to be subjected to an audit was incorrect. In this context, the complainant referred to a letter that it had sent to the Commission on 19 May 2004 (a copy of which was sent to the Ombudsman) in which it described in detail its offers to the Commission to carry out an audit. 4.2 In its opinion, the Commission pointed out that in his decision of 21 May 2002 on complaint 1702/2001/GG, the Ombudsman had considered that the Commission had not abused its discretional power in proposing an audit to the complainant. The Commission further submitted that the complainant's assertion that it had been willing to undergo an ECHO audit was by no means demonstrated by its letter to Mr Prodi of 19 May 2004. In this letter, the complainant made an effort to demonstrate that it had shown to DG VIII its readiness to be checked by that service. According to the Commission, however, the complainant's affirmation that due to the existing relations between DG VIII and ECHO the latter was aware of its readiness to be audited according to the Commission's criteria was a purely conjectural argument that had furthermore been introduced long after the facts. 4.3 The Ombudsman considers that the evidence submitted by the complainant shows that already in 1997 the complainant had offered to DG VIII to carry out an audit and that this proposal had been repeated several times. The Commission would therefore be wrong if it were to argue that the complainant has never agreed to such an audit. However, the Ombudsman understands the Commission as arguing that the complainant refused to submit to the audit that had been proposed to it by ECHO in 2001. Seen in this perspective, the Ombudsman considers that the Commission's position is reasonable, given that it appears to be undisputed that the complainant had not accepted this particular request for an audit. 4.4 In these circumstances, no maladministration can be found as regards the third allegation submitted by the complainant. 5. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: In its opinion in case 1702/2001/GG, the Commission submitted that "despite continuous contacts between ECHO and the German Foreign Office" no further information concerning the complainant had been provided by the German authorities until 15 November 2001.

598

In the Ombudsman's view, this statement was bound to be understood as referring to contacts concerning the complainant's case (and not to contacts concerning other German NGOs). It appeared, however, that no such contacts were made after the one described in the Commission's internal note dated 17 November 1995. In these circumstances, the Ombudsman considers that the Commission's statement was misleading. This constitutes an instance of maladministration. Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

By letter of 9 February 1995, the complainant asked the Commission for a copy of the FPA. The formal application was lodged on 20 March 1996. Cf. Article 4 of the European Code of Good Administrative Behaviour that has been submitted by the Ombudsman and approved by the European Parliament. Cf. Articles 20 and 22 of the European Code of Good Administrative Behaviour. Cf. Article 17 of the European Code of Good Administrative Behaviour. Cf. Article 16 of the European Code of Good Administrative Behaviour. This appeal was rejected by the Court of Justice on 7 December 2004. In this context, the Commission referred to Article 10 of the FPA currently in force.

(2)

(3)

(4)

(5)

(6)

(7)

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

(8)

Cf. judgment of the Court of First Instance of 15 October 2003 in Case C-372/02 and judgment of the Court of Justice in Case C-521/03 P of 7 December 2004. It may be useful to note that the Court considered that the "decision" of 22 October 2002 only confirmed the decision of 19 July 2001.

599

In a letter sent on 8 June 2005, the complainant stressed that there had never been judicial proceedings, but only an investigation. A copy of this document was submitted by the complainant in the context of another complaint (complaint 745/2004/GG).
(11)

(10)

600

Decision of the European Ombudsman on complaint 3054/2004/TN against the European Central Bank

Strasbourg, 1 July 2005

Dear Mr W., On 13 April 2004, you made a complaint to the European Ombudsman concerning the alleged failure by the European Central Bank (hereafter "the ECB") to answer the question whether it had intervened to soften the fall in the dollar and the rise in the value of the Euro. The complaint, which was registered under reference number 1106/2004/TN, was closed as inadmissible on 5 May 2005, because its object, i.e., the exact allegation, could not be identified. It was not clear whether the essence of your complaint was that the ECB had failed to explain why it refused to provide you with the information, so that you were unable to understand the reasons for the ECB's refusal, or if you had understood the ECB's reasons, but considered them to be wrong. In my letter of 5 May 2005, I explained to you that, in the former case, the Ombudsman could begin an inquiry, but that, in the latter case, your complaint would contest the policies of the ECB as regards market operations in the fulfilment of the basic tasks of the European System of Central Banks and your complaint would not, therefore, concern a possible instance of maladministration. In the latter case, you were informed about the possibility to contact the European Parliament and its Committee on Economic and Monetary Affairs, which holds regular hearings to which the President of the ECB is invited. Following further correspondence between you and my services, you developed your allegation against the ECB and on the basis of your e-mail of 5 October 2004, your complaint was declared admissible under the present reference number. On 27 October 2005, I forwarded the complaint to the President of the ECB. The ECB sent its opinion on 12 January 2005 and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are, in summary, the following:

601

The complainant sent the ECB several e-mails, the first one on 23 February 2004, asking whether it had intervened to soften the fall in the value of the dollar and the rise in the value of the Euro. However, the ECB refused to respond to the question, stating that it "does not comment on questions and/or market rumours linked with interventions". The complainant alleges that the ECB has failed to explain its reasons for not providing him with the requested information, and, as a result, he is unable to understand the reasons for its refusal. The complainant claims that the ECB should reply to his question "Has the ECB intervened to soften the fall in the dollar and the rise in the value of the Euro?"

THE INQUIRY The European Central Bank's opinion In its opinion, the ECB makes, in summary, the following comments: The ECB has never refused to reply to the complainant's question, but has always replied to his questions to the extent possible. However, there are good reasons why the ECB does not comment on interventions. Information regarding foreign exchange interventions is market sensitive and its communication plays a crucial role in the overall policy implementation. As a result, such communication has to be handled with great care in order not to undermine the impact of the operation. The ECB, like any other central bank, reserves the right to decide whether, when and by what means information should be communicated regarding interventions. In the past the ECB has, for example, used press releases and its Annual Report as communication channels. The Ombudsman invited the complainant to submit observations on the ECB's opinion. No observations appear to have been submitted by the complainant.

THE DECISION 1. The alleged failure to give reasons for not providing information 1.1 The complainant asked the ECB whether it had intervened to soften the fall in the value of the dollar and the rise in the value of the Euro. However, the ECB refused to reply to the question. The complainant alleges that the ECB has failed to explain its reasons for not providing him with the requested information, and, as a result, he is unable to understand the reasons for its refusal. 1.2 The ECB argues that it has always replied to the complainant's questions to the extent possible. However, there are good reasons why the ECB does not comment on

602

interventions. Information regarding foreign exchange interventions is market sensitive and its communication plays a crucial role in the overall policy implementation. As a result, such communication has to be handled with great care in order not to undermine the impact of the operation. The ECB, like any other central bank, reserves the right to decide whether, when and by what means information should be communicated regarding interventions. 1.3 The Ombudsman recalls that Article 1 of the Treaty on European Union provides that "[t]his Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen". The Ombudsman therefore considers that, in principle, citizens should be provided with the information that they request concerning decisions made by the Community institutions and bodies(1). 1.4 In those situations where it is not possible to provide the requested information, the Ombudsman considers that the institution or body refusing the request should give the citizen sufficiently specific reasons to show clearly and unequivocally its reasoning for the refusal. The Ombudsman notes that the case law of the Community courts consistently applies this approach in relation to the handling of requests for access to documents(2). In certain cases, however, the case law shows that reasoning by reference to categories of document may be sufficient(3). 1.5 The Ombudsman notes that, in its opinion on the present complaint, the ECB explains the reasons why it will not provide the complainant with information as to whether it has intervened to soften the fall in the value of the dollar and the rise in the value of the Euro. The Ombudsman considers that the reasons provided by the ECB appear to meet the required legal standard in that they show clearly and unequivocally the ECB's reasoning and enable the complainant to understand why the ECB refuses to divulge the requested category of information. The Ombudsman therefore finds no maladministration by the ECB. 2. The complainant's claim 2.1 The complainant claims that the ECB should reply to his question "Has the ECB intervened to soften the fall in the dollar and the rise in the value of the Euro?" 2.2 The ECB has explained (see point 1.5 above) why it will not answer the complainant's question. 2.3 The Ombudsman has already explained to the complainant, for instance in the letter opening the inquiry, that he does not consider that a complaint contesting the policies of the ECB as regards market operations in the fulfilment of the basic tasks of the European System of Central Banks concerns a possible instance of maladministration.

603

2.4 The Ombudsman also points out in this regard that Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents provides for refusal of access to a document where disclosure would undermine the protection of "the public interest as regards: () the financial, monetary or economic policy of the Community"(4) and that the ECB's decision concerning public access provides for an exception to protect the public interest as regards "monetary and exchange rate stability"(5). 2.5 In view of the above, the Ombudsman considers that there is no basis to pursue the complainant's claim. 3. Conclusion For the reasons stated above, the Ombudsman considers that there is no maladministration by the European Central Bank. The President of the European Central Bank will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Cf. Article 22(1) of the European Code of Good Administrative Behaviour, available at the Ombudsman's website: http://www.euro-ombudsman.eu.int/code/en/default.htm. See for example: Case T-124/96 Interporc v Commission [1998] ECR II-231, paragraph 53; Case T-105/95, WWF UK v Commission [1997] ECR II-313, paragraph 66. The Ombudsman points out in this regard that public access to documents of the ECB is regulated by the Decision of the European Central Bank of 3 November 1998 concerning public access to documentation and the archives of the European Central Bank (OJ 1999 L110, p. 30), Article 5 (1) and (4) of which require the ECB to state grounds for refusing access.
(3) (2) (1)

Case T-105/95, WWF UK v Commission [1997] ECR II-313, paragraph 64.

604

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L145, p.43) Article 4 (1) (a) fourth indent. Decision of the European Central Bank of 3 November 1998 concerning public access to documentation and the archives of the European Central Bank (OJ 1999 L110, p. 30), Article 4.
(5)

(4)

605

Decision of the European Ombudsman on complaint 3110/2004/GG against the European Commission

Strasbourg, 5 April 2005

Dear Dr. H., On 12 October 2004, you made a complaint against the European Commission to the European Ombudsman concerning a project (PRRAC/H/SE/01/045) in Central America (Honduras). On 25 October 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 31 January 2005. I forwarded it to you on 2 February 2005 with an invitation to make observations, which you sent on 7 February 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT Background The present complaint concerns a project (PRRAC/H/SE/01/045) in Central America (Honduras) for which the complainant, a German national who worked for a German consultancy firm, was responsible. The project, which was financed by the EU, appears to have had the purpose of repairing and improving the infrastructure of towns in Central America that had been hit by the hurricane 'Mitch'. More particularly, waste-water treatment systems and facilities for the orderly disposal of rubbish were to be built in a number of cities that had been selected. It appears that the project was fraught with various problems. In November 2003, the Commission asked the German consultancy firm to replace the complainant by another person. Complaint 641/2004/GG On 22 February 2004, the complainant turned to the Ombudsman. According to the complainant, the choice of cities was arbitrary and not based on any criteria. For reaching such a conclusion, he gave the example of the city of Talanga. According to the complainant, only two of these cities had infrastructure that had been affected by the hurricane. As a result of the problems that ensued, the project had to be
606

reviewed and a new concept for its implementation had been submitted to and approved by the Commission. According to the complainant, however, no written approval had ever been given. The complainant also submitted that certain authorisations had been granted belatedly and that there had been delays as regards payments by the Commission. According to the complainant, the Commission's agent in charge of the project had interviewed the local staff in the absence of himself and a further person involved. The complainant considered this to be discriminatory and inadmissible. He also submitted that the Commission had examined the problem of the use of service cars only in his project. It appears that the complainant had used a service car also for private purposes. In the complainant's view, doing so had been necessary for security reasons. According to the complainant, his written complaints had been dealt with belatedly or not at all. The complainant further took the view that the Commission had acted wrongly when it had asked his company to replace him. On the basis of the above, the complainant made the following allegations: (1) The preparation of the project had been absolutely deficient and insufficient; (2) There had been administrative irregularities; (3) There had been discrimination and misuse of powers; (4) There had been unnecessary delays in handling the project; and (5) The "Solicitud de Reemplazo del Director del Proyeto" of 7 November 2003 had been unjustified and unfounded. The complainant submitted the following claims: (1) He should be rehabilitated and receive compensation; (2) Similar projects and a similar waste of taxpayers' money should be avoided in the future; and (3) The relevant project should be continued in a reasonable way. On the basis of the information that had been provided by the complainant, the Ombudsman found it very difficult to establish the relevant facts. It was also

607

impossible to ascertain whether the appropriate administrative approaches had been made. In the light of the above, the Ombudsman informed the complainant on 19 March 2004 that there were insufficient grounds for an inquiry. The letter of 18 April 2004 On 18 April 2004, the complainant provided certain clarifications. However, it was still not possible to ascertain whether the appropriate prior approaches had been made. The Ombudsman informed the complainant accordingly on 6 May 2004. The letter of 20 May 2004 In a further letter of 20 May 2004, the complainant referred to certain oral contacts that he had made with the Commission. In his reply of 23 June 2004, the Ombudsman pointed out that he considered a more formal approach to be appropriate. The letter of 12 August 2004 On 12 August 2004, the complainant wrote to the Commission (with a copy to the Ombudsman). The present complaint On 12 October 2004, the complainant informed the Ombudsman that he had received no reply from the Commission. Since the complainant asked the Ombudsman to intervene, this letter was registered as a new complaint (complaint 3110/2004/GG).

THE INQUIRY The Commission's opinion In its opinion submitted in January 2005, the Commission made the following comments: Background information In the framework of the Regional Programme for the Reconstruction of Central America "PRRAC"), the project "Saneamiento Lquido y Slido en Ciudades Intermedias en Honduras" (project PRRAC/H/SE/01/045) was intended to contribute to the rehabilitation and extension of infrastructure, equipment and management of sewage services in several Honduran cities, thus supporting change towards a more sustainable development model. As to the city of Talanga, the project foresaw the implementation of a pilot project for the collection of waste.

608

The co-ordination of the project's activities was carried out by the Project Management Unit ("PMU") under the responsibility of the European Technical Assistance. The PMU consisted, on the one hand, of the European Technical Assistance and, on the other hand, of the Local Technical Assistance. The European Technical Assistance contract had been awarded to the Beller consortium. This 34-month contract had been signed by the Commission and by Beller Consult GmbH (on behalf of the consortium) on 26 November 2001 and had commenced on 15 March 2002. According to the contract's Technical and Administrative Provisions ("TAPs"), the team consisted mainly of a Director and an Administrator. The complainant, an employee of Beller Consult GmbH, worked as the project's Director from the commencement of the contract until the date on which he was replaced at the request of the Commission's Delegation in Managua ("the Delegation"). As regards the complainant's allegations 1) Allegedly deficient and insufficient preparation of the project The complainant alleged that the choice of cities had been arbitrary and not based on any criteria. For reaching such a conclusion, he gave the example of the city of Talanga. According to the complainant, the fact that this town lacked a primary sanitary sewer collection system was not consistent with the Talanga project's alleged objective to provide secondary sanitary sewer networks. The complainant's argument had an erroneous foundation, since - as stated in Article 1.3 of the TAPs - the project's objective was to contribute to the rehabilitation, improvement and enlargement of the sewerage system, the sewage treatment plant and the collecting and disposal systems for household solid waste. On the other hand, the diagnosis made by the Technical Assistance Unit responsible for preparing the PRRAC projects had acknowledged that the town of Talanga had neither a sanitary sewer collection system nor a waste-water treatment plant. This document had also recommended that the final definition of both sewerage and treatment plant systems should be done by the PMU. Furthermore, it was not the Technical Assistance's role to question the choice of cities. In the consortium's proposal, it had been stated that the consultant considered both the project's planning and preparation documents and the quality of the tender documents as a good basis for beginning to implement the project.

609

2) Alleged administrative irregularities The complainant alleged that the Commission had failed to approve both the Global Operational Plan ("GOP") and the Annual Work Plan 1 ("AWP-1"). It should be noted that the GOP was an indicative document on the overall planning of activities and the distribution of the budget throughout the project's lifecycle. The AWP-1 represented the contractual basis for making payments, and included a detailed action and financing plan based on the general planning of the GOP. The PMU had sent the GOP to the Delegation at the beginning of October 2002. The Delegation had then requested corrections to be made to both the GOP and the AWP1. The latest versions of these documents had been sent to the Delegation on 22 November 2002. The Delegation informed the PMU on 4 December 2002 by telephone that the documents had been approved. Since the proposed changes requested amendments to the TAPs, it had been necessary to adopt an addendum to the contract before formalising the approval of both the GOP and the AWP-1. The GOP and the AWP-1 had been formally approved on 17 January 2003. This fact did not stop the execution of activities, since both plans had already been approved. As regards the Task Manager's request to transfer the complainant's power of attorney to the local engineer, Article 6.1 of the TAPs and Article 3.3 of the Terms of Reference for the technical assistance contract stipulated the principle of co-signature of tender documents. The Delegation had requested that a delegation of signature be made in order to guarantee financial management in cases of a prolonged absence of the expert who was authorised to sign. 3) Alleged discrimination and misuse of powers The complainant alleged that the local staff had been questioned twice in private, without either his or the Administrator's presence. Having observed that there were internal problems in the team, it had been the Commission's obligation to maintain close contact with the staff for the purpose of analysing and remedying specific problems encountered in the implementation of the project. As regards the use of vehicles, point C.3 of the above-mentioned Terms of Reference clearly stated that vehicles were only intended for work purposes. Despite repeated instructions by the Delegation, this provision had not been respected and vehicles had been used for private purposes. The argument of security reasons due to the situation in Honduras and the fact that service cars of other PRRAC projects had also been used for personal purposes did not justify the infringement of the above-mentioned provision.

610

4) Allegedly unnecessary delays in handling the project The complainant alleged that delays both in answering his request for the extension of the project and in the Task Manager's visiting the project had caused prejudice to the project. Without obtaining prior authorisation from the Delegation, the complainant had publicly announced to the national authorities the possible extension of the project, disregarding opinions expressed by the Delegation's representatives. Article 3.5 of the above-mentioned Terms of Reference stated that the European experts were to abstain from promoting the project's enlargement or extension by their own initiative and/or from inducing other bodies to submit such proposals. After having expressed its reluctance to extend the project's duration on several occasions, the Commission informed the complainant by letter of 1 October 2003 that there was no justified reason for such an extension. The fact that the Delegation did not authorise the extension of the project's duration had not delayed the implementation of the project. On the contrary, it had contributed to respect for the schedule. Indeed, from the very beginning the project had suffered from delays. At the beginning of 2003, the Delegation had received the tender dossiers. The Delegation had then observed that there were problems with tenders exceeding EUR 30 000, since the Community's existing legislation had not been observed. In spite of the Delegation's efforts to be flexible on condition that these rules were observed, the repeated omissions provoked delays in the project's implementation of approximately one year. The delays had been caused both by the complainant's excessive zeal for perfection and the non-respect of the Commission's tender procedure and instructions. As regards the excessive zeal for perfection, the complainant had insisted - against the opinion of the PMU's team - on the need for launching tenders for remaking designs, since he had considered the designs of the FHIS (the Honduran Social Investment Fund) not to be good enough. In several tender dossiers, the complainant had applied his own criteria, disregarding the Commission's instructions, resulting in the tenders being delayed. The non-respect of certain provisions had resulted in the annulment of several tenders(1) and made it necessary to restart the procedure. As to the delays in the visits of the Task Manager to the project, these delays had been justified since the Task Manager had been needed at the Delegation headquarters. Furthermore, the Task Manager's role was not to assist the Project Director, but to check and monitor the latter's performance in executing the project.

611

5) Allegedly unjustified and unfounded request to replace the project's Director In monitoring the project, the Commission had observed that the team leader's performance was not up to the expected standard and that the project's implementation was affected by some serious problems. The co-signature of tender documents by both the Director and the Administrator had repeatedly been disregarded by the complainant, thus limiting the Administrator's participation in management tasks. Furthermore, the Delegation had observed that the tense relationship between the Director and the Administrator had serious implications for the functioning of the PMU. The Commission's decision to ask for the replacement of the complainant as project Director in accordance with Article 15.3 of the contract was justified for the sake of good financial management and the Commission's obligation to ensure that the funds of the EU were spent in accordance with existing provisions. As regards the complainant's claims 1) Rehabilitation and compensation The Commission had acted with a view to securing the future development of the project. It had not intended to call into question the complainant's expertise. Article 12 of the contract provided that the Commission did not bear any responsibility as regards claims for damages deriving from the implementation of the project. As regards non-contractual liability, the Commission had acted reasonably and committed no fault that would allow the complainant to claim compensation. 2) Avoidance of similar projects and of a similar waste of taxpayers' money in the future The Commission did not share the complainant's view regarding the unsuitability of the project. It should be noted that this EUR 11 million project would benefit 37 000 inhabitants in six Honduran villages. 3) Continuation of project in a reasonable way Once the new Director had taken office, the PMU, together with the external assistance experts and local staff, had revised and improved the existing designs and prepared the financing contracts with the villages. That had allowed the project partially to recover the wasted time. In less than three months, the tender dossiers had been ready to be handed over to the municipalities. Conclusion The Commission concluded by saying that its services had acted properly and that therefore no maladministration had occurred in its view.

612

The complainant's observations In his observations, the complainant maintained his complaint and made the following further comments: Background information It was not correct to say that the project foresaw the implementation of a pilot project for the collection of waste in Talanga. This pilot project had only been conceived by the Technical Assistance Unit after a revision and detailed analysis of the relevant documents. It had been suggested to the Delegation in a report dated 7 August 2002 and approved by the Delegation by letter of 26 August 2002. As regards the allegations 1) Allegedly deficient and insufficient preparation of the project The fact that the preparation of the project had been deficient and inadequate was shown in detail in the above-mentioned report of 7 August 2002. The remark in the consortium's proposal that both the project's planning and preparation documents and the quality of the tender documents were considered by the consultant as a good basis for beginning to implement the project only concerned the documents that had been known until the tender. A document called "Diagnostico y Perfil detallado del Proyecto de Saneamiento lquido y slido de la Ciudad Honduras" was only handed over to the complainant in March 2002. 2) Alleged administrative irregularities It was not usual to approve important documents such as the GOP and the AWP-1 by telephone, particularly given that the complainant had been expressly told by the Head of the Delegation that no obligations could be derived from e-mails or telephone calls. The Head of the Delegation had been alerted to the problems at a meeting, on the occasion of which a note of 12 February 2003 setting out the problems had been handed over. Given that official payments had been impossible due to the absence of the approvals, the project had been financed by an interim loan and by resources provided by the consortium. This had been approved by the Head of the Delegation on 12 February 2003. 3) Alleged discrimination and misuse of powers It was unclear how so-called internal problems (e. g. the duty of staff to be present, the prohibition to download pornographic content from the internet) had come to the attention of the Commission.

613

As regards the use of vehicles, a partially private use of service cars for trips from the home to the office had been tolerated in all other PRRAC projects until the time of the complainant's departure in February 2004. 4) Allegedly unnecessary delays in handling the project The speech in which the complainant had publicly announced a possible extension of the project had previously been submitted to and checked with the Delegation. The fact that the Delegation had taken more than five months to reject, by note of 3 June 2003, a tender that had been proposed on 29 January 2003, would appear to have contributed to the delay. There had been no excessive zeal for perfection. The relevant planning documents had not matched minimum requirements and it would have been irresponsible to base a tender on them. 5) Allegedly unjustified and unfounded request to replace the project's Director In principle, all documents had been signed by the Director and the Administrator. After the Administrator had committed horrendous mistakes and after he had called the complainant "Hitler", the complainant had asked the consortium to replace the Administrator. This request had not been accepted, which resulted in extra work for the Director. The Administrator had been unable to fulfil his duties.

THE DECISION 1. Allegedly deficient and insufficient preparation of the project 1.1 The present complaint concerns the project "Saneamiento Lquido y Slido en Ciudades Intermedias en Honduras" (project PRRAC/H/SE/01/045). This project was intended, in the framework of the Regional Programme for the Reconstruction of Central America "PRRAC"), to benefit several Honduran cities. The co-ordination of the project's activities was carried out by the Project Management Unit ("PMU") under the responsibility of the European Technical Assistance. The PMU consisted, on the one hand, of the European Technical Assistance and, on the other hand, of the Local Technical Assistance. The European Technical Assistance contract had been awarded to a consortium. This 34-month contract had been signed by the Commission and the consortium on 26 November 2001 and had commenced on 15 March 2002. According to the contract's Technical and Administrative Provisions ("TAPs"), the team consisted mainly of a Director and an Administrator. The complainant, a German consultant, worked as the project's Director from the commencement of the contract until the date on which he was replaced at the request of the Commission's Delegation in Managua ("the Delegation"). 1.2 In his complaint to the Ombudsman, the complainant alleged that the preparation of the project had been deficient and insufficient. He submitted that the choice of

614

cities had been arbitrary and not based on any criteria. For reaching such a conclusion, he gave the example of the city of Talanga. According to the complainant, the fact that this town lacked a primary sanitary sewer collection system was not consistent with the project's objective to provide secondary sanitary sewer networks. 1.3 In its opinion, the Commission submitted that the complainant's argument had an erroneous foundation, since the project's objective had been to contribute to the rehabilitation, improvement and enlargement of the sewerage system, the sewage treatment plant and the collecting and disposal systems for household solid waste. As to Talanga, the project had foreseen the implementation of a pilot project for the collection of waste. The Commission further pointed out that in the consortium's proposal, it had been stated that the consultant considered both the project's planning and preparation documents and the quality of the tender documents as a good basis for beginning to implement the project. 1.4 In his observations, the complainant stressed that it was not correct to say that the project foresaw the implementation of a pilot project for the collection of waste in Talanga. According to the complainant, this pilot project had only been conceived by the Technical Assistance Unit and had been suggested to the Delegation in a report dated 7 August 2002. The Delegation had approved it by letter of 26 August 2002. 1.5 The Ombudsman notes that the complainant does not dispute that the project comprised (at least from 26 August 2002 onwards) the construction of a pilot project for the collection of waste in Talanga. In these circumstances, the fact that this town may have lacked a primary sanitary sewer collection system does not show that the project had been inadequately prepared. 1.6 In his observations, the complainant stressed that the remark in the consortium's proposal that both the project's planning and preparation documents and the quality of the tender documents were considered by the consultant as a good basis for beginning to implement the project had only concerned the documents that had been known until the tender. 1.7 The Ombudsman notes that the complainant does not appear to dispute that the statement in the consortium's proposal quoted by the Commission contradicts his view that the project had been inadequately prepared. It is true that this statement can only have referred to documents that were known to the consortium at the relevant time. In his observations, the complainant submitted that the document called "Diagnostico y Perfil detallado del Proyecto de Saneamiento lquido y slido de la Ciudad Honduras" had only been handed over to him at a later date. However, the Ombudsman considers that the complainant has not shown how this document could support his view that the project had been inadequately prepared. 1.8 In these circumstances, the Ombudsman takes the view that the complainant has not substantiated his first allegation.

615

2. Alleged administrative irregularities 2.1 The complainant alleged that the Commission's failure properly to approve both the Global Operational Plan ("GOP") and the Annual Work Plan 1 ("AWP-1") and the Task Manager's request to give a power of attorney to the local engineer constituted administrative irregularities. 2.2 In its opinion, the Commission pointed out that the PMU had sent the GOP to the Delegation at the beginning of October 2002. The Delegation had then requested corrections to be made to both the GOP and the AWP-1. According to the Commission, the latest versions of these documents had been sent to the Delegation on 22 November 2002. The Delegation had informed the PMU on 4 December 2002 by telephone that the documents had been approved. Since the proposed changes requested amendments to the TAPs, it had been necessary to adopt an addendum to the contract before formalising the approval of both the GOP and the AWP-1. According to the Commission, the GOP and the AWP-1 had been formally approved on 17 January 2003. 2.3 The Ombudsman considers that the Commission has put forward what appears to be a reasonable explanation for the fact that the relevant plans had first been approved by telephone and that the formal approval took place only subsequently. 2.4 In its opinion, the Commission submitted that the fact that the plans had only been approved by telephone at first had not stopped the execution of activities. In his observations, the complainant appeared to dispute this statement by stressing that official payments had been impossible due to the absence of the (formal) approval. The Ombudsman notes, however, that the complainant also pointed out that, in the absence of the formal approval, the project had been financed by an interim loan and by resources provided by the consortium and that this had been approved by the Delegation on 12 February 2003. In these circumstances, the Ombudsman takes the view that the complainant has not shown that any possible delay in approving the relevant plans had negative consequences for the project. 2.5 As regards the Task Manager's request that the complainant should give power of attorney to the local engineer, the Commission explained that Article 6.1 of the TAPs and Article 3.3 of the Terms of Reference for the technical assistance contract stipulated the principle of co-signature of tender documents. According to the Commission, the Delegation had requested that a delegation of signature be made in order to guarantee financial management in cases of a prolonged absence of the expert who was authorised to sign. 2.6 The Ombudsman considers that the Commission has provided a reasonable explanation for its request that a delegation of signature be made. 2.7 In these circumstances, the Ombudsman takes the view that the complainant has not established his second allegation.

616

3. Alleged discrimination and misuse of powers 3.1 The complainant alleged that the Commission was guilty of discrimination and of a misuse of powers. In this context, he referred to the fact that the local staff had been questioned twice in his absence. He also noted that he had been criticised for having used his service car for private purposes whereas a partially private use of service cars had been tolerated in all other PRRAC projects until the time of the complainant's departure in February 2004. 3.2 In its opinion, the Commission took the view that having observed that there were internal problems in the team, it had been its obligation to maintain close contact with the staff for the purpose of analysing and remedying specific problems encountered in the implementation of the project. 3.3 The Ombudsman considers that this explanation appears to be reasonable and that the complainant has thus not established his view that the Commission's approach constituted a misuse of powers. 3.4 As regards the use of service cars, the Commission submitted that point C.3 of the above-mentioned Terms of Reference clearly stated that vehicles were only intended to be used for work purposes. According to the Commission, and despite repeated instructions by the Delegation, this provision had not been respected in the present case. 3.5 The Ombudsman considers that it follows from his observations that the complainant does not dispute the Commission's view that he was not allowed to use service cars for private purposes. He further notes that the Community courts have made it clear that no person may rely, in support of his claim that the principle of equal treatment has been infringed, on an unlawful act committed in favour of another person(2). The fact that other persons may illegally have used service cars for private purposes without being stopped by the Commission thus did not prevent the Commissin from acting as it did towards the complainant. 3.6 In these circumstances, the Ombudsman takes the view that the complainant has not established his third allegation. However, a further remark will be made as regards the use of service cars for private purposes. 4. Allegedly unnecessary delays in handling the project 4.1 The complainant alleged that there had been unnecessary delays on the part of the Commission, as regards both the contract as such and the Task Manager's visits to the project. 4.2 In its opinion, the Commission submitted that the project had suffered from delays from the very beginning and that these delays had been caused both by the complainant's excessive zeal for perfection and by the non-respect of the

617

Commission's tender procedure and instructions. The Commission added that in several tender dossiers, the complainant had applied his own criteria, disregarding the Commission's instructions, something which had resulted in the tenders being delayed. The non-respect of certain provisions had resulted in the annulment of several tenders(3) and had made it necessary to restart the procedure. 4.3 In his observations, the complainant rejected the Commission's view that he had shown an excessive zeal for perfection. He also submitted that the fact that the Delegation had taken more than five months to reject, by its note of 3 June 2003, a tender that had been proposed on 29 January 2003, would appear to have contributed to the delay. 4.4 The Ombudsman notes that the complainant has not objected to the Commission's argument that he had failed to comply with provisions and instructions regarding tender procedures and that his own behaviour therefore resulted in delays. As regards the Commission's note of 3 June 2003, it should be noted that this note refers to a document dated 29 January 2003 and to another one dated 22 April 2003. In the absence of more specific information on the contents of these documents, the Ombudsman is unable to find that the Commission's decision of 3 June 2003 had been unnecessarily delayed. 4.5 In these circumstances, the Ombudsman takes the view that the complainant has not established his fourth allegation. 5. Allegedly unjustified and unfounded request to replace the project's Director 5.1 The complainant alleged that the Commission's request of 7 November 2003 to the consortium to replace him as the Director of the project had been unjustified and unfounded. 5.2 In its opinion, the Commission submitted that it had observed that the team leader's performance was not up to the expected standard and that the project's implementation was affected by some serious problems. In this context, the Commission pointed out that the Delegation had observed that the tense relationship between the Director and the Administrator had serious implications for the functioning of the PMU. According to the Commission, its decision to ask for the replacement of the complainant as project Director in accordance with Article 15.3 of the contract had been justified for the sake of good financial management and the Commission's obligation to ensure that the funds of the EU were spent in accordance with existing provisions. 5.3 In his observations, the complainant submitted that the Administrator had been unable to fulfil his duties and that he (the complainant) had asked the consortium, without success, to replace him.

618

5.4 The Ombudsman considers that the complainant's observations would appear to lend credibility to the Commission's argument that there had been a tense relationship between the Director and the Administrator and that this fact had serious implications for the functioning of the PMU. In any event, the Ombudsman takes the view that the fact that the complainant had, on several occasions, failed to comply with provisions and instructions regarding tender procedures (see point 4.4 above) would as such be sufficient to justify the Commission's decision. 5.5 In these circumstances, the Ombudsman takes the view that the complainant has not established his fifth allegation. 6. The complainant's claims 6.1 In his complaint, the complainant submitted the following claims: (1) He should be rehabilitated and receive compensation; (2) similar projects and a similar waste of taxpayers' money should be avoided in the future; and (3) the relevant project should be continued in a reasonable way. 6.2 Given that the Ombudsman has not found any maladministration on the part of the Commission, there are no grounds further to inquire into the complainant's claims. 6.3 It should be noted that the Ombudsman's findings are based on the information that was submitted to him by the complainant and the Commission. If the complainant should consider that there is further information that could support his view that the project concerned constituted a waste of taxpayers' money, he could consider approaching the European Court of Auditors (12, rue Alcide de Gasperi, L-1615 Luxembourg). 7. Conclusion On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision.

FURTHER REMARKS In its opinion, the Commission observed that service cars could not be used for private purposes under the rules applicable to the project concerned by the present complaint. However, the Commission did not seem to dispute the complainant's argument that service cars of other PRRAC projects had also been used for personal purposes. In his observations, the complainant submitted that this had been tolerated by the Commission. The Ombudsman would therefore find it most useful and in keeping

619

with principles of good administration if the Commission could consider re-examining this issue in so far as the other PRRAC contracts are concerned. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------In this context, the Commission referred to a number of notes (including one dated 3 June 2003) in which it had drawn the complainant's attention to the conditions that had to be respected and asked for the annulment of tenders. Copies of these notes were submitted to the Ombudsman.
(2) (1)

See Case 188/83 Witte v Parliament 1984 ECR 3465, paragraph 15.

In this context, the Commission referred to a number of notes (including one dated 3 June 2003) in which it had drawn the complainant's attention to the conditions that had to be respected and asked for the annulment of tenders. Copies of these notes were submitted to the Ombudsman.

(3)

620

Decision of the European Ombudsman on complaint 3254/2004/(JMA)(OV)ID against the European Commission

Strasbourg, 15 December 2005

Dear Mr M., On 11 November 2004, you made a complaint to the European Ombudsman, alleging that the Commission had failed to properly deal with your complaints concerning the Greek authorities' failure to recognise you as a Chemical Engineer, on the basis of your professional qualification, obtained in the United Kingdom, as a Materials Engineer, and, in particular, that the Commission's interpretation of Directive 89/48/EEC with regard to your case was over-simplified. On 20 December 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 5 April 2004. I forwarded it to you with an invitation to make observations, which you sent on 30 May 2005. On 15 November 2005 you were kindly requested, via e-mail, to clarify to the Ombudsman whether you had filed an action before a Greek Court regarding the Greek authorities' refusal to recognise you as a Chemical Engineer. By e-mail dated 23 November 2005, you informed me that you had filed with the Council of State of Greece an action for annulment of decision 64/2003 of the Council for the Recognition of Professional Equivalence of Higher-Education Diplomas, which concerned your case. Upon request, I have received from the Council of State of Greece a copy of this action. I am writing now to let you know the results of the inquiries that have been made. To avoid misunderstanding, it is important to recall that the EC Treaty empowers the Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the Commission.

THE COMPLAINT On 6 December 2001, the complainant filed with the competent Greek authority, the Council for the Recognition of Professional Equivalence of Higher-Education Diplomas ("SAEI"), an application in order to obtain recognition of his right to exercise in Greece the profession of Chemical Engineer, on the basis of the
621

higher-education diplomas and professional qualifications he had obtained in the United Kingdom ("UK"). By its decision 64/2003, the SAEI rejected the complainant's above-mentioned application, because the complainant had not obtained the necessary professional qualifications to practice the profession of Chemical Engineer in the UK. By letters dated 12 July 2002 and 18 September 2002, the complainant complained to the European Commission of the fact that Greece violated his rights, under the EC Treaty and Council Directive 89/48/EEC of 21 December 1998 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration(1) ( Directive 89/48/EEC), to exercise in Greece the profession of Chemical Engineer, on the basis of the higher-education diplomas and professional qualifications he had obtained in the UK. Following an extensive correspondence between the complainant and the Commission, the latter informed the complainant, by letter dated 10 July 2003, that the file of his case did not appear to contain evidence of the alleged violation of Community law, since, although it emerged from a document sent by the UK's "Engineering Council" that the complainant possessed the necessary qualifications for the exercise in the UK of the profession of "Materials Engineer", with specialisation in Polymer Science and Technology, the same document did not indicate (a) that the scope of activities covered by the profession of "Materials Engineer" was equivalent to the one corresponding to the profession of "Chemical Engineer" in the UK; or (b) that the complainant possessed the necessary qualifications for the exercise of the profession of "Chemical Engineer" in the UK. In this regard, the Commission had mentioned in its letter of 19 February 2003 addressed to the complainant that, on the basis of the information provided by the UK's "Institution of Chemical Engineers" and by the Greek authorities, the complainant's enrolment as "Chartered Chemical Engineer" in the UK would probably facilitate the recognition of his professional qualifications in Greece. By letters of 13 September 2004 and 12 October 2004, the complainant challenged the way the Commission had interpreted and applied the Community law in his case, arguing, in essence, that (a) taking into account that the UK's "Engineering Council", which regulates the engineering profession in the UK, had confirmed that he "is entitled to undertake the regulated profession of Materials Engineer with specialization in Polymer Science and Technology", and that "the above professional recognition is at a level equal to that of a Chemical Engineer", his profession should be considered as equivalent/equal to the profession of "Chemical Engineer"; and (b) he had the right to be recognised in Greece as a "Chemical Engineer with specialisation in Materials Science and Technology". The complainant pointed out that a fellow student of his, having exactly the same academic qualifications and professional rights in the UK as himself, had been so recognised. In its reply of 20 October 2004, the Commission confirmed that it was not in a position to undertake any further steps concerning the complainant's case, noting that (a) for the purposes of Directive 89/48/EEC, the "Engineering profession" is not to be considered as a single profession, since it encompasses numerous different specialisations which vary between Member States; (b) the British authorities had not

622

confirmed that the complainant was fully qualified as a Chemical Engineer in the UK; (c) the letter of the UK's Engineering Council of 23 May 2003 merely confirmed that the complainant was entitled to undertake the profession of Materials Engineer in the UK and that his professional recognition was "at a level equal to" that of a Chemical Engineer, which did not mean that the field of activities of both professions was the same or that the complainant was entitled to pursue the profession of Chemical Engineer in the UK; (d) as to the argument put forward by the complainant that other Materials Engineers had been recognised in Greece as Chemical Engineers with specialisation in Materials Science and Technology, no discrimination could be established on this basis, without further information, taking into account that (i) the fact that these persons had been granted academic recognition of their qualifications by the Greek authorities was outside the scope of Directive 89/48 and could not affect the interpretation of this Directive; and (ii) it was indicated in the complainant's letter of 22 July 2002 that those persons also exercised other professions connected to that of Materials Engineer. Subsequently, on 11 November 2004, the complainant filed a complaint with the European Ombudsman(2), alleging that the Commission had failed to deal properly with his aforesaid complaints concerning the Greek authorities' failure to recognise him as a Chemical Engineer on the basis of his professional qualification, obtained in the UK, as a Materials Engineer, and, in particular, that the Commission's interpretation of Directive 89/48/EEC with regard to his case was over-simplified.

THE INQUIRY The Commission's opinion In its opinion of 18 March 2005, the Commission made, in summary, the following observations regarding the complainant's case. The purpose of Directive 89/48/EEC is to allow a person fully qualified in a Member State for the exercise of a profession to exercise the same profession in another Member State. In Greece, the profession of Polymer Engineer does not exist, but there is the broader profession of Chemical Engineer. In the UK, both professions exist. The complainant applied to the Greek authorities for recognition of his right to exercise in Greece the profession of Chemical Engineer. Establishing the correspondence between professions in Member States is a particularly complex task in the field of Engineering, to the extent that there are numerous branches organised in different ways by the Member States and which may be considered as different professions. In such complex cases, the services of the Commission do not possess the technical competence necessary for determining which is, in a Member State A, the profession corresponding to the one a professional would like to exercise in a Member State B. Since the competence to organise the professions belongs to Member States, this analysis can be based only on the information provided by the competent national authorities.

623

As regards the complainant's case, in an e-mail dated 7 February 2003, the UK's Institution of Chemical Engineers indicated that "[t]he standard of the academic qualification and the competence and training and experience required for registration as a Professional Member of the Institute of Materials is comparable to the standard required for registration as a Chartered Chemical Engineer with IChemE. However, registration as a Chartered Chemical Engineer may require a qualification to be gained in a different subject and for the competence, training and experience to be gained in a different field. Chemical Engineering is a diverse profession and Chartered Chemical Engineers find themselves working in many different areas and it is possible that someone who is working as a "polymer engineer" could qualify as a Chartered Chemical Engineer. It would be up to the individual to demonstrate that they can meet our Institution's requirements." On the basis of these clarifications, the Greek authorities considered that the complainant was not qualified as a "Chemical Engineer" in the UK, and, hence, he was not entitled to have his qualifications recognised, with a view to exercising the profession of Chemical Engineer in Greece, on the basis of Directive 89/48/EEC. Taking into account the information provided by the British authorities, the Commission found that no violation of Community law had been established in this case. As to the complainant's argument that he was discriminated against, because other Materials Engineers with exactly the same academic qualifications and professional rights in the UK, had been recognised in Greece as Chemical Engineers with specialisation in Materials Science and Technology, the Commission reiterated what it had noted in its letter of 20 October 2004 (see above point (d)). The complainant's observations The complainant submitted extensive and elaborate observations (dated 30 May 2005) on the Commission's opinion, invoking violation and misapplication of Directive 89/48 on its part, on the basis of the following arguments: (a) Directive 89/48 has not been properly implemented by Greece; (b) The Commission's reply to his above-mentioned argument that he was discriminated against by the Greek authorities was based on a misreading of his letter dated 22 July 2002; (c) The profession of Engineer with specialisation in Polymer Materials Science and Technology does exist in Greece, as a regulated profession, within the meaning of Directive 89/48/EEC, and the Commission should have considered that the SAEI was bound to examine which one of the nine specialisations of Engineers provided for under Greek legislation was the closest to his overall professional qualifications and to classify him as an Engineer with this specialisation;

624

(d) A license to exercise the regulated profession of Chemical Engineer in the UK is not a prerequisite for the recognition by the Greek authorities of his professional qualifications, as a (Chemical) Polymer Engineer; (e) The above-mentioned e-mail of the UK's Institution of Chemical Engineers dated 7 February 2003 was misinterpreted by the Commission and was communicated to him only in October 2004, in violation of his rights of defence; (f) Chemical Engineer and Polymer Engineer are not two completely different professions in the UK, and, as the UK's Institution of Chemical Engineers had clearly suggested, a Polymer Engineer may be registered as a Chartered Chemical Engineer if he complies with the Institution's requirements; (g) The Commission indirectly approved the Greek authorities' demand for an academic equivalence of his diplomas as a prerequisite for the recognition of the professional equivalence of his qualifications; and (h) The Commission wrongly ignored the fact that the SAEI had failed to take into account his professional experience in Greece as a counterbalancing factor. Moreover, in his observations, the complainant argues that, assuming that his case is not covered by Directive 89/48, the Commission should have accepted that the SAEI ought to have recognised his professional qualifications, on the basis of Articles 43 and 47 of the EC Treaty, as interpreted by the Court of Justice in Case 340/89 Vlassopoulou(3), Case C-319/92 Haim(4), and Case C-238/98 Hocsman(5). In conclusion, the complainant points out that the Commission should be considered to have deliberately allowed itself to be deceived by the SAEI, since the Commission itself accepted that it relied solely on the information given to it by the competent authorities, following a "super-simplified" interpretation of the principles and provisions of the Directive which it adopted in his case and, consequently, for the profession of Engineer, and following a flagrant breach of the principle of nondiscrimination. Further inquiries In his letter of 12 July 2002 to the Commission, the complainant stated, inter alia, that if the SAEI decided to reject his application of 6 December 2001 concerning the recognition of his right to exercise in Greece the profession of Chemical Engineer, he would contest the legality of such a decision before Greek Courts. On 15 November 2005 the complainant was, thus, requested, via e-mail, to clarify to the Ombudsman whether he had filed an action before a Greek Court concerning the rejection of his above-mentioned application. Subsequently, by e-mail sent on 23 November 2005, the complainant informed the Ombudsman, that he had filed with the Council of State of Greece an action for annulment of decision 64/2003 of the SAEI (under registration

625

number 6348/2.9.2003). In the same e-mail, the complainant noted that the Greek Council of State, in its decisions 4753/1997 and 2070/1999, had already dealt with his case, suggesting that Directive 89/48/EEC was applicable. The complainant further indicated that he considered that the Commission's intervention could be an effective means of eliminating the arbitrariness of the Greek authorities in his case, and that the Council of State would not examine whether the Commission had fulfilled its responsibilities as guardian of the EC Treaty. At his request, the Ombudsman received from the Council of State of Greece a copy of the above-mentioned action lodged by the complainant. In this action, the complainant contests the legality of decision 64/2003 of the SAEI, invoking violation and misapplication of Directive 89/48, on the basis of the following arguments: (a) Directive 89/48 has not been properly implemented by Greece; (b) The profession of Engineer with specialisation in Polymer Materials Science and Technology does exist in Greece, as a regulated profession, within the meaning of Directive 89/48/EEC, and the SAEI should have examined which one of the nine specialisations of Engineers provided for under Greek legislation was the closest to his overall professional qualifications and to classify him as an Engineer of this specialisation; (c) A license to exercise the regulated profession of Chemical Engineer in the UK is not a prerequisite for the recognition by the Greek authorities of his professional qualifications, as a (Chemical) Polymer Engineer; (d) The challenged decision relies on a document of the UK's Institution of Chemical Engineers which has not been communicated to him, in violation of his rights of defence; (e) Chemical Engineer and Polymer Engineer are not two completely different professions in the UK; (f) The challenged decision could not require an academic equivalence of his diplomas as a prerequisite for the recognition of the professional equivalence of his qualifications; and (g) The SAEI failed to take into account his professional experience in Greece as a counterbalancing factor. Moreover, the complainant argues that, assuming that his case is not covered by Directive 89/48, the SAEI should have recognised his professional qualifications, on the basis of Articles 43 and 47 of the EC Treaty, as interpreted by the Court of Justice in Case 340/89 Vlassopoulou(6), Case C-319/92 Haim(7), and Case C-238/98 Hocsman(8).

626

THE DECISION 1. Alleged failure to deal properly with the complainant's infringement complaint to the Commission 1.1 On 6 December 2001, the complainant filed with the competent Greek authority, the Council for the Recognition of Professional Equivalence of Higher-Education Diplomas ("SAEI"), an application in order to obtain the recognition of his right to exercise in Greece the profession of Chemical Engineer, on the basis of the highereducation diplomas and professional qualifications he had obtained in the United Kingdom ("UK"). By its decision 64/2003, the SAEI rejected the complainant's above-mentioned application, because the complainant had not obtained the necessary professional qualifications to practice the profession of Chemical Engineer in the UK. By letters dated 12 July 2002 and 18 September 2002, the complainant complained to the European Commission of the fact that Greece violated his rights, under the EC Treaty and Council Directive 89/48/EEC of 21 December 1998 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration(9) ("Directive 89/48/EEC") to exercise in Greece the profession of Chemical Engineer, on the basis of the higher-education diplomas and professional qualifications he had obtained in the UK. Following an extensive correspondence between the complainant and the Commission, the latter informed the complainant, by letter dated 10 July 2003, that the file of his case did not appear to contain evidence of the alleged violation of Community law. By letters of 13 September 2004 and 12 October 2004, the complainant challenged the way the Commission had interpreted and applied the Community law in his case. In its reply of 20 October 2004, the Commission confirmed that it was not in a position to undertake any further steps concerning the complainant's case. Subsequently, on 11 November 2004, the complainant filed a complaint with the European Ombudsman, alleging that the Commission had failed to properly deal with his aforesaid complaints concerning the Greek authorities' failure to recognise him as a Chemical Engineer on the basis of his professional qualification, obtained in the UK, as a Materials Engineer, and, in particular, that the Commission's interpretation of Directive 89/48/EEC with regard to his case was over-simplified. 1.2 In its opinion of 18 March 2005, the Commission explained and defended its actions in handling the complainant's infringement complaint. 1.3 The complainant submitted extensive and elaborate observations (dated 30 May 2005) on the Commission's opinion, invoking violation and misapplication of Directive 89/48 on its part, on the basis of several arguments. Moreover, in his observations, the complainant argues that, assuming that his case is not covered by Directive 89/48, the Commission should have accepted that the SAEI ought to have recognised his professional qualifications, on the basis of Articles 43 and 47 of the EC treaty, as interpreted by the Community Court in the Case 340/89 Vlassopoulou(10), Case C-319/92 Haim(11), and Case C-238/98 Hocsman(12). In conclusion, the complainant points out that the Commission should be considered to have deliberately

627

allowed itself to be deceived by the SAEI, since the Commission itself accepted that it relied solely on the information given to it by the competent authorities, following a "super-simplified" interpretation of the principles and provisions of the Directive which it adopted in his case and, consequently, for the profession of Engineer, and following a flagrant breach of the principle of non-discrimination. 1.4 In his letter of 12 July 2002 to the Commission, the complainant stated, inter alia, that if the SAEI decided to reject his application of 6 December 2001 concerning the recognition of his right to exercise in Greece the profession of Chemical Engineer, he would contest the legality of such a decision before Greek Courts. On 15 November 2005 the complainant was, thus, requested, via e-mail, to clarify to the Ombudsman whether he had filed an action before a Greek Court concerning the rejection of his above-mentioned application. Subsequently, by e-mail sent on 23 November 2005, the complainant informed the Ombudsman, that he had filed with the Council of State of Greece an action for annulment of decision 64/2003 of the SAEI (under registration number 6348/2.9.2003). In the same e-mail, the complainant noted that the Greek Council of State, in its decisions 4753/1997 and 2070/1999, had already dealt with his case, suggesting that Directive 89/48/EEC was applicable. The complainant further indicated that he considered that the Commission's intervention could be an effective means of eliminating the arbitrariness of the Greek authorities in his case, and that the Council of State would not examine whether the Commission had fulfilled its responsibilities as guardian of the EC Treaty. 1.5 In relation to the complainant's references to the decisions 4753/1997 and 2070/1999 of the Greek Council of State, the Ombudsman notes that the Greek Council of State, in its decision 4753/1997, merely held that, taking into account the diplomas the complainant had obtained in the UK, the complainant had standing to bring an action for annulment of the Government's failure to transpose Directive 89/48/EEC into the Greek legal order, with a view to pursuing, on the basis of this Directive, the recognition in Greece of his professional qualifications as a Chemical Engineer. However, the Council of State, in its decisions 4753/1997 and 2070/1999, neither stated explicitly nor suggested that Directive 89/48/EEC actually applied to the complainant's case. 1.6 Moreover, at his request, the Ombudsman received from the Council of State of Greece a copy of the above-mentioned action lodged by the complainant. In this action, the complainant contests the legality of decision 64/2003 of the SAEI, invoking violation and misapplication of Directive 89/48, on the basis of several arguments, which are identical, in substance, to the ones made in the complainant's complaint to the Ombudsman, and in his observations on the Commission's opinion. Moreover, in the same action, the complainant argues that, assuming that his case is not covered by Directive 89/48, the SAEI should have recognised his professional qualifications, on the basis of Articles 43 and 47 of the EC treaty, as interpreted by the Community Court in the Case 340/89 Vlassopoulou(13), Case C-319/92 Haim(14), and Case C-238/98 Hocsman(15).

628

1.7 As set out in Article 195 EC, "[ i]n accordance with his duties, the European Ombudsman shall conduct inquiries for which he finds grounds ... ." Moreover, Article 3(1) of the Statute of the European Ombudsman provides that "[t]he Ombudsman shall, on his own initiative or following a complaint, conduct all the enquiries which he considers justified to clarify any suspected maladministration in the activities of Community institutions and bodies." In deciding whether further inquiry into, and consideration of, a complaint is justified, the Ombudsman examines, in particular, whether the assessment of the merits of the complaint involves an examination of legal or factual issues raised in an action filed before a Community or National Court(16). This is all the more important where the complaint involves issues pertaining to the interpretation and application of national legislation, since National Courts are better positioned than the European Ombudsman to deal with such questions. 1.8 After having carefully examined the complainant's complaint, his observations on the Commission's opinion, and the action for annulment of decision 64/2003 of the SAEI that the complainant had filed before the Council of State of Greece on 2 September 2004, the Ombudsman finds that the assessment of the merits of the complainant's allegation that the Commission failed to properly deal with his complaints, since it failed to properly interpret and apply Directive 89/48/EEC and Articles 43 and 47 of the EC Treaty in his case, would involve a thorough examination of issues raised in the complainant's action before the Council of State of Greece, including, inter alia, questions pertaining to the interpretation and application of Greek legislation regarding the regulation in Greece of the professional activities of a "Materials Engineer, with specialisation in Polymer Science and Technology" and their relationship with the activities which fall within the scope of the profession of Chemical Engineer, as regulated in that Member State. Under these circumstances, and although the "facts alleged" by the complainant are not the subject of the above legal proceedings(17), for the Commission is not a party to these proceedings, the Ombudsman concludes that further inquiry into, and consideration of, the abovementioned allegation is not justified, since it would, in essence, amount to a duplication of the legal proceedings initiated by the complainant before the Greek Council of State. The Ombudsman, nevertheless, notes that the complainant may renew his complaint to the Ombudsman, after the completion of these legal proceedings, in particular if the Commission fails to reconsider its reply to his infringement complaint, or maintains the positions taken in its replies considered in the present Decision, despite the fact that it has been notified of a final judgment rendered by the Council of State of Greece in his case, or of a preliminary ruling of the Court of Justice, that may be given at the request of the Greek Council of State in the context of his case, which casts doubt on the propriety of its reply to the complainant's infringement complaint. 1.9 In his observations on the Commission's opinion, the complainant argued, for the first time, that (a) the Commission had misread his letter dated 22 July 2002; and (b) the above-mentioned e-mail of the UK's Institution of Chemical Engineers of 7 February 2003, relied upon by the Commission, was communicated to him only in

629

October 2004, in violation of his rights of defence. The Ombudsman points out that these allegations, which are relevant to positions taken by the Commission in its aforesaid letters of 20 October 2004, and of 10 July 2003, respectively, raise further issues regarding the propriety of the handling of the complainant's infringement complaint, and do not appear to have been preceded by appropriate administrative approaches, as required by Article 2(4) of the Statute of the European Ombudsman. Under these circumstances, the Ombudsman will not initiate inquiries into the foregoing new allegations. The Ombudsman notes that the complainant has the possibility to make a new complaint if he wishes to pursue these allegations. 2. Conclusion On the basis of the above, the Ombudsman finds that further inquiry into, and consideration of, the complaint is not justified. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision.

FURTHER REMARK The complainant may renew his complaint to the Ombudsman, after the completion of the legal proceedings he has initiated before the Council of State of Greece, in particular if the Commission fails to reconsider its reply to his infringement complaint, or maintains the positions taken in this reply, despite the fact that it has been notified of a final judgment rendered by the Council of State of Greece in his case, or of a preliminary ruling of the Court of Justice, that may be given at the request of the Greek Council of State in the context of his case, which casts doubt on the propriety of its reply to the complainant's infringement complaint. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

OJ L 19/24.01.1989, p. 16.

(2)

On 19 September 2005, the complainant had submitted to the Ombudsman a similar complaint (2822/2004/JMA), which was rejected as inadmissible, because there was no indication that the complaint had been preceded by appropriate administrative approaches to the Commission. Case 340/89 Vlassopoulou [1991] ECR 2357.

(3)

630

(4)

Case C-319/92 Haim [1994] ECR I-425 (' Haim I). Case C-238/98 Hocsman [2000] ECR I-6623. Case 340/89 Vlassopoulou [1991] ECR 2357. Case C-319/92 Haim [1994] ECR I-425 (' Haim I'). Case C-238/98 Hocsman [2000] ECR I-6623. OJ L 19/24.01.1989, p. 16. Case 340/89 Vlassopoulou [1991] ECR 2357. Case C-319/92 Haim [1994] ECR I-425 (' Haim I'). Case C-238/98 Hocsman [2000] ECR I-6623. Case 340/89 Vlassopoulou [1991] ECR 2357. Case C-319/92 Haim [1994] ECR I-425 (' Haim I'). Case C-238/98 Hocsman [2000] ECR I-6623.

(5)

(6)

(7)

(8)

(9)

(10)

(11)

(12)

(13)

(14)

(15)

(16)

Cf., e.g., Decision on complaint 803/2004/JMA, paragraph 1.8 (action before Community Court).

Article 195 of the Treaty establishing the European Community empowers the European Ombudsman to receive complaints "concerning instances of maladministration in the activities of the Community institutions or bodies except where the alleged facts are or have been the subject of legal proceedings."

(17)

631

Decision of the European Ombudsman on complaint 3381/2004/TN against the European Commission

Strasbourg, 6 September 2005

Dear Mrs E., On 10 November 2004, you made a complaint to the European Ombudsman on behalf of RATS (Residents Against Toxic Site) concerning the European Commission's handling of a request for access to documents made under Regulation 1049/2001. On 9 December 2004, I forwarded the complaint to the President of the European Commission. On the same day, I wrote to the United Kingdom Permanent Representation to the European Union and asked for information as to whether the UK authorities would object to the release of the documents to which you had requested access. The Commission sent its opinion on your complaint on 8 February 2005. I forwarded it to you with an invitation to make observations, which you sent on 13 April 2005. On 14 June 2005, I wrote to the Commission, making a further request relating to the complaint. The Commission sent its reply on 15 July 2005. In a telephone conversation with my services on 24 August 2005, you explained that you consider the matter to have been settled. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are, in summary, the following: In 2002, RATS (Residents Against Toxic Site) made an Article 226 complaint(1) to the Commission (complaint 2002/4402) concerning the UK authorities' alleged failure to follow Community legislation as regards a large landfill site near the residents' homes. By letter of 9 February 2004, the Commission informed RATS of its intention to close the case. Since RATS assumed that the Commission had forwarded the allegations and evidence to the UK authorities and received replies, RATS requested access to the Commission's correspondence with the UK authorities. By letter of 18 March 2004, the Commission refused access to the documents concerned on the basis of the exception in Article 4.2 of Regulation 1049/2001(2),
632

arguing that a disclosure of the documents would undermine the protection of the purpose of inspections, investigations and audits. The Commission referred to a judgement by the Court of Justice and stated that the safeguarding of sincere cooperation and a climate of mutual confidence between the Commission and the Member State concerned by an infringement procedure warranted the refusal of access. The Commission also stated that the conclusions of the investigation of the allegations brought forward by RATS were to be re-examined in the light of the new documents that RATS had submitted. The Commission concluded that it did not consider a disclosure of the requested documents, which related to the ongoing investigation of case 2002/4402, to constitute an overriding public interest in relation to the completion of the assessment of the case and maintaining the dialogue between the national authorities and the Commission. By letter of 25 March 2004, RATS made a confirmatory application to the Commission, challenging its decision not to provide access to the requested documents. RATS considered it to be unreasonable that the residents would not be allowed to check the veracity of the evidence provided by the UK authorities, on the basis of which the Commission had decided to close the case. However, despite reminders sent on 25 March, 20 May and 17 June 2004, RATS received no reply from the Commission to its confirmatory application. The complainant alleges that the Commission: 1. Wrongly and unreasonably refused access to the requested documents; and 2. Failed to reply to RATS' confirmatory application. The complainant claims that the Commission should grant access to the documents in question. Following the opening of an inquiry into the complaint, the Ombudsman also wrote to the United Kingdom Permanent Representation to the European Union asking for information as to whether the United Kingdom authorities would object to the release of the documents to which the complainant had requested access.

THE INQUIRY The Commission's opinion During its investigation of the Article 226 complaint, which concerned a landfill site in the UK, the Commission contacted the UK authorities to seek clarifications on a number of allegations made by the complainant. The Commission wrote to the UK authorities on 14 October 2002 and received a reply on 12 December 2002. Following an assessment of this reply, the Commission again wrote to the UK authorities on 19 August 2003 to seek further clarifications. The UK authorities replied on 17 October

633

2003. The evidence provided by the complainant and the information provided by the UK authorities were assessed and the conclusions were communicated to the complainant by letter of 9 February 2004, concluding that no breach of Community environmental legislation had been identified. The Commission therefore proposed to close the file, unless the complainant submitted further evidence to support the case. By letter of 21 February 2004, the complainant protested against the proposed closure of the file and presented additional evidence. In this letter, the complainant also requested copies of the Commission's requests to the UK authorities and of their subsequent replies and submitted evidence. The Commission replied that these documents were covered by the exception to access laid down in Article 4(2), third indent, of Regulation 1049/2001, since their disclosure would adversely affect the ongoing investigation regarding a possible infringement of Community law. The Commission points out that, at the time of the request for access, the complaint file had not yet been closed and was still being investigated. The complainant reacted by letter of 2 March 2004, asking the Commission to reconsider the request for access to documents. Although the letter was sent to the Secretary-General, it was forwarded to DG Environment, which is responsible for the handling of environmental complaints. Unfortunately, the letter was not copied to the services in the Secretariat-General that are responsible for the handling of confirmatory applications for access to documents. By letter of 8 July 2004 to DG Environment, the complainant complained that the Secretariat-General had failed to reply to her confirmatory application, despite her reminders. The complainant's letter was forwarded to the responsible services within the Secretariat-General, which apologised for the administrative mistake and promised to handle the confirmatory application as quickly as possible. The Secretariat-General replied to the complainant's confirmatory application on 20 August 2004, confirming the refusal to disclose the requested documents. In the meantime, DG Environment investigated the additional information provided by the complainant from February 2004 onwards. A meeting was also held with the complainant's MEP regarding the matter. On 24 June 2004, the Commission wrote to the complainant indicating that the additional evidence that she had provided did not change the Commission's conclusion outlined in its letter of 9 February 2004. Further evidence was forwarded to the Commission by the complainant's MEP on 25 August 2004. This was again assessed, but did not change the Commission's opinion that there was insufficient evidence of a breach of Community environmental law. The complaint file was therefore formally proposed for closure and was subsequently closed on 13 October 2004. The complainant was informed of this decision by letter of 15 December 2004. As regards the refusal to provide access to the requested documents, the Commission argues that its decision not to disclose the documents at that stage of the proceedings is consistent with relevant case law(3). However, since the file has now been formally

634

closed, the Commission has decided to release its letters of 14 October 2002 and of 19 August 2003 addressed to the UK Permanent Representation to the European Union. Pursuant to Article 4(5) of Regulation 1049/2001, the Commission has consulted the UK authorities as regards possible disclosure of their replies. Since the UK authorities have confirmed that they do not object to disclosure, the two letters in question are also disclosed. The Commission therefore encloses with its opinion copies of its correspondence with the UK authorities. As regards the Commission's alleged failure to reply to the confirmatory application, the Commission regrets the administrative mistake and that the handling of the complainant's confirmatory application was unduly delayed. The request to the United Kingdom Permanent Representation The Ombudsman received no direct reply from the UK Permanent Representation to his request. However, the necessary information appears to have been given directly to the Commission by the Representation. The complainant's observations In her observations, the complainant makes, in summary, the following comments: RATS is grateful for the copies of the correspondence between the Commission and the UK authorities. However, RATS has consistently asked for access also to the information submitted by the UK authorities to support its arguments. In the letter from the UK Permanent Representation to the Commission of 17 October 2003, this information is referred to as being in electronic form on three CD-ROMs. The complainant would like to obtain copies also of this information. Further inquiries After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman noted the complainant's argument, put forward in her observations, that RATS had consistently asked for access not only to the letters exchanged between the Commission and the UK authorities, but also to the information submitted by the UK authorities to support its arguments. In the complainant's view, this information is in the form of three CD-ROMs, to which she would like access. The Ombudsman further noted that the complainant's original request for access to documents covered "a copy of [the Commission's] requests and the correspondence and evidence from the UK government". [The Ombudsman's underlining.]

635

On the basis of the above, and of the arguments provided by the Commission as to why it is now possible to disclose the correspondence between it and the UK authorities, the Ombudsman asked the Commission to consider providing the complainant with access also to the three CD-ROMs referred to by the UK Permanent Representation in its letter of 17 October 2003. The Commission's reply In reply to the further inquiries, the Commission informed the Ombudsman that it had decided to provide the complainant with the three CD-ROMs in question. The complainant's observations In a telephone conversation with the Ombudsman's services on 24 August 2005, the complainant acknowledged receipt of the remaining documents covered by the request for access, i.e., the three CD-ROMs. She therefore considered the matter to be settled.

THE DECISION 1. The alleged wrongful refusal of access to documents, the alleged failure to reply to the confirmatory application, and related claim 1.1 The complaint concerns the Commission's handling of a request for access to documents made under Regulation 1049/2001(4). In 2002, RATS (Residents Against Toxic Site) made an Article 226 complaint(5) to the Commission (complaint 2002/4402) concerning the UK authorities' alleged failure to follow Community legislation as regards a large landfill site near the residents' homes. In February 2004, the Commission informed RATS of its intention to close the case. Since RATS assumed that the Commission had forwarded the allegations and evidence to the UK authorities and received replies, RATS requested access to the Commission's correspondence with the UK authorities. However, the Commission refused access to the documents concerned on the basis of the exception in Article 4.2 in Regulation 1049/2001, arguing that a disclosure of the documents would undermine the protection of the purpose of inspections, investigations and audits. The Commission did not consider a disclosure of the requested documents, which related to the ongoing investigation of case 2002/4402, to constitute an overriding public interest in relation to the completion of the assessment of the case and maintaining the dialogue between the national authorities and the Commission. RATS made a confirmatory application to the Commission to which it never received a reply. The complainant alleges that the Commission: 1) wrongly and unreasonably refused access to the requested documents; and 2) failed to reply to RATS' confirmatory application. The complainant claims that the Commission should grant access to the documents in question. 1.2 The Commission argues that its decision not to disclose the documents at that stage of the proceedings is consistent with relevant case law(6). However, since the file

636

has now been formally closed, the Commission has decided to release its letters of 14 October 2002 and of 19 August 2003 addressed to the UK Permanent Representation to the European Union. Since the UK authorities have confirmed that they do not object to disclosure of its replies, the two letters in question are also disclosed. The Commission regrets the administrative mistake leading to undue delay in the handling of the complainant's confirmatory application. 1.3 In her observations on the Commission's opinion, the complainant states that RATS is grateful for the copies of the correspondence between the Commission and the UK authorities. She stresses, however, that RATS has consistently asked for access also to the information submitted by the UK authorities to support its arguments. In the letter from the UK Permanent Representation to the Commission of 17 October 2003, this information is referred to as being in electronic form on three CD-ROMs. The complainant explains that she would like to obtain copies also of this information. 1.4 The Ombudsman considered that further inquiries were necessary into the matter and therefore asked the Commission to consider providing the complainant with access also to the three CD-ROMs referred to by the UK Permanent Representation in its letter of 17 October 2003. 1.5 In its reply to the further inquiries, the Commission informed the Ombudsman that the complainant had been provided with the three CD-ROMs in question. In a telephone conversation with the Ombudsman's services on 24 August 2005, the complainant acknowledged receipt of the three CD-ROMs and explained that she considered the matter to be settled. 1.6 In view of the above, the Ombudsman considers that the Commission appears to have taken adequate steps to settle the matter and has thereby satisfied the complainant. 2. Conclusion It appears from the Commission's comments and the complainant's observations that the Commission has taken steps to settle the matter and has thereby satisfied the complainant. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS -------------------------

637

(1)

Article 226 of the EC Treaty empowers the Commission to proceed against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law.

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L145, p. 43.
(3)

(2)

Case T-191/99, David Petrie and others v. Commission [2001] ECR II-3677.

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L145, p. 43.
(5)

(4)

Article 226 of the EC Treaty empowers the Commission to proceed against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law. Case T-191/99, David Petrie and others v. Commission [2001] ECR II-3677.

(6)

638

Decision of the European Ombudsman on complaint 3442/2004/PB against the European Investment Bank

Strasbourg, 20 September 2005

Dear Mr H., On 23 November 2004, you made, on behalf of CEE Bankwatch, a complaint to the European Ombudsman against the European Investment Bank concerning the Bank's handling of a document request. On 20 December 2004, I forwarded the complaint to the President of the European Investment Bank ('EIB'). The EIB sent its opinion on 3 March 2005. I forwarded it to you with an invitation to make observations, which you sent on 5 April 2005. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, on 4 June 2004, the Vice-President of the European Investment Bank ('EIB'), claimed in a statement made at the Bonn 2004 Renewables conference that the EIB had made money available through intermediary banks for small and medium-sized renewable energy projects. On 14 June 2004, the complainant asked the EIB for information and documents relating to these loans. In his letter, the complainant noted that the Vice-President of the EIB had referred to money that the EIB had made available, through intermediary banks, for small and medium-sized renewable energy projects. The complainant stated in his letter that he presumed that the Vice-President had referred to global loans, and asked for "a list of those renewable projects (including the name and type of projects, the names of the final beneficiaries, the amount of funding per project, and the year of project signing) that were financed under this scheme, as well as the intermediaries that were involved in these projects [...]". By letter dated 30 June 2004, the EIB gave the complainant general information, but indicated that it would not meet his request just quoted. The EIB referred to the information contained on its website, and in particular the note "EIB's transparent information policy" (dated 12 June 2003). This note contained, among others, the following information: "EIBs public disclosure policy with regard to global loan allocations differs from its information policy on individual loans. Disclosure of detailed information on global loan allocations is the competence of the intermediary bank, as business partner for the end beneficiary, carrying the projects commercial risks and signing the finance contract. Under all global loan arrangements, the EIB
639

ensures that the partner bank is committed to and capable of implementing EIB criteria. The EIB provides, on request, aggregate data on global loan financing, including country and sector breakdowns." The complainant appealed this decision to the Secretary General of the EIB on 9 July 2004. The handling of the complaint took place as follows: On 12 July 2004, the complainant received a confirmation of receipt from the EIBs Secretary General; on 30 July 2004, the complainant received a letter from the EIBs Press Office and Communications Department with the information that the Secretary General would get back to him after the summer break; on 8 October 2004, the Secretary General rejected the complainant's complaint on the basis of Article 4(vii) of the EIB's "Rules on Public Access to Documents", which contains the following exception: "the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector". According to the complainant, the release of the requested information would not be contrary "to professional ethics, rules and practices applicable in the banking and financial sector". Additionally, in response to the EIB's letter of 30 June 2004, the complainant requested, also on 9 July 2004, data collected from financial intermediaries and a list of intermediaries that had provided loans for renewable energy projects in the period 1999-2003, including the number of projects and the total amount that each of these intermediaries had disbursed for renewable projects in each of the years. The EIB confirmed receipt of the request but did not provide the complainant with either the requested data or with an explanation as to the reasons for the delay. The complainant considered that there had been a clear violation of Article 13 of the Code of Good Administrative Behaviour for the staff of the European Investment Bank in its relations with the public, which provides that "a reply to all requests and complaints addressed to the [EIB] is provided within an acceptable period, without delay, and in any event no later than two months following receipt." In addition to the alleged delay, the complainant stated that he considered it highly inappropriate that EIB staff who had been involved in adopting the disputed decision had been involved in the handling of his complaint of 9 July 2004. He referred to an email of 30 July 2004 from Ms B., one of the officials who had been involved in adopting the disputed decision. The email contained a holding reply, informing the complainant that his complaint of 9 July 2004 would be dealt with. The complainant furthermore put forward that the EIBs information policy and procedures were not clearly defined, referring in particular to what he considered to be a lack of clarity as regards the status of so-called "background notes" published by the EIB.

640

The complainant's allegations and claims were the following: 1. That the EIB had wrongly rejected his application for access to documents in its letter of 8 October 2004. 2. That the EIB had failed to respond to his request for data collected from financial intermediaries and for a list of intermediaries that provided loans for renewable energy projects in the period 1999-2003, including the number of projects and the total amount that each of these intermediaries had disbursed for renewable projects in each of the years. 3. That there had been delays in the EIB's response to his complaint of 9 July 2004. 4. That EIB staff against whom his complaint of 9 July 2004 had been made had been wrongly involved in the EIB's response made to that complaint. 5. That the EIB's information policy and procedures were not clearly defined. The complainant made the following claims: 1. That he should be given a list of the renewable projects financed through global loans as requested in his letter dated 14 June 2004 to the Vice-President of the EIB, as well as a list of the intermediaries that were involved in these projects. The list should include the names and types of projects, the names of the final beneficiaries, the amount of funding per project, and the year of project signing. 2. That the EIB should set up transparent procedures that would provide that complaints such as his should be dealt with within one month of receipt of the complaint, unless there were specific reasons why this would not be possible. 3. That the EIB should ensure that its staff members who are the subject of complaints should not be involved in the handling of such complaints. 4. That the EIB should clearly define its information policy and procedures and all of the documents to which they apply.

THE INQUIRY The EIB's opinion In its opinion, the EIB made the following comments: The first allegation The EIB's Secretary-General informed the complainant by letter dated 8 October 2004 that in the framework of global loans, all information on individual loan allocations remains within the competence of the intermediary bank and is covered by the exception to disclosure in Article 4(vii) of the EIB's Rules on Public Access to Documents. This article provides as follows:

641

"1. Access to all or part of a document shall be refused where its disclosure would undermine the protection of: [...] the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector" The final beneficiaries' contractual relationship is with the intermediary bank, not with the EIB. The EIB could therefore not disclose information that is part of the confidential relationship between the intermediary bank and the final beneficiary. The second allegation The EIB apologised for its staff's failure to respond to the complainant's email of 9 July 2004. However, the EIB pointed out that this failure to reply had never been the subject of a formal complaint or a reminder from the complainant. The email had been received at a time when the EIB was handling several other communications from the complainant. The EIB stated that if the complainant was still interested in receiving a reply to the information request contained in the email, it would be pleased to provide him with an answer. The third allegation After having acknowledged receipt of the complainant's complaint on 12 July 2004, the EIB had sent the complainant a letter on 30 July 2004, informing him that it would address the matter after the summer break. In so doing, the EIB had acted in accordance with Article 13(2) of its Code of Good Administrative Behaviour, which provides that "[w]here, on account of the complexity of the issues raised, a reply cannot be provided within the abovementioned period [of two months], the member of staff responsible shall inform the correspondent thereof without delay. In this event, the correspondent shall be furnished with a definitive reply as soon as possible." Given the complexity of the complainant's complaint, it had been necessary to wait until all the relevant expert staff could be fully consulted. Fourth allegation The EIB stated that the staff member referred to by the complainant had merely been asked to acknowledge receipt of the complaint in the absence of other relevant staff during the summer break. The staff member concerned had not been involved in processing and examining the complaint. However, to avoid similar misunderstandings in the future, the EIB had already taken measures to ensure a clear separation of tasks in the handling of complaints to the EIB.

642

The fifth allegation The EIB referred to its letter to the complainant of 8 October 2004, in which clarifications had been given regarding the nature and status of documents published on the EIB's information policy. First claim The EIB referred to its comments on the first allegation. Second claim The EIB stated that it welcomed feedback from the public and that the complainant's suggestion had already been brought to the attention of the EIB's governing bodies. Third claim The EIB referred to its comments on the fourth allegation. Fourth claim The EIB noted that it was about to launch a public consultation procedure as part of a review of its public information policy, a review which would include the issues raised by the complainant. The complainant's observations In his observations, the complainant maintained his complaint. He also made the following additional comments: Regarding the first allegation The EIB's application of Article 4(vii) of its Rules on Public Access to Documents effectively prevented the public from obtaining access to information about global loans. The complainant's organisation had asked all intermediary banks for information on renewable projects that were funded through the global loans. None of these intermediary banks had granted access to the information. The complainant therefore made the suggestion that the EIB could in the future handle the matter as follows: (1) In cases where the EIB has received information about individual global loans from the intermediary banks and where such cases do not have as part of the loan covenant a clause concerning the release of information, then the EIB should, as a minimum, apply Article 3 of its Rules on Public Access to Documents(1) and consult the bank concerned. (2) In cases where the EIB did not receive information about individual global loans, it should request information from the intermediary and subsequently publish some information. (3) For future global loans, the EIB should

643

ensure that covenants are made according to which the EIB is able to release information on individual global loans. Regarding the second allegation The complainant stated that he had now formally requested the data referred to and additionally requested the data for 2004. Regarding the third allegation The complainant did not accept the EIB's explanation for the delay in replying to his organisation's complaint of 9 July 2004. Regarding the fourth allegation The complainant welcomed the EIB's response to this allegation. Regarding the fifth allegation The complainant appeared to maintain that his allegation was justified. At the same time he welcomed the EIB's decision to launch a review of its public information policy. The complainant indicated that his organisation would work actively to contribute to that review.

THE DECISION 1. Allegedly wrong rejection of application for access to documents 1.1 On 14 June 2004, the complainant, acting on behalf of the organisation CEE Bankwatch, made a document request relating to money that the European Investment Bank ('EIB') had made available, through intermediary banks, for small and mediumsized renewable energy projects. The complainant asked for "a list of those renewable projects (including the name and type of projects, the names of the final beneficiaries, the amount of funding per project, and the year of project signing) that were financed under this scheme, as well as the intermediaries that were involved in these projects [...]" By letter dated 30 June 2004, the EIB rejected the complainant's request. The EIB referred to the information contained on its website, and in particular the note "EIB's transparent information policy". The complainant appealed this decision to the Secretary General of the EIB on 9 July 2004, who informed the complainant by letter dated 8 October 2004 that the refusal had been justified on the basis of Article 4(vii) of the EIB's "Rules on Public Access to Documents", which contains the following exception: "the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector".

644

1.2 The complainant alleged that the EIB had wrongly rejected his application for access to documents in its letter of 8 October 2004. He claimed that he should be given a list of the renewable projects financed through global loans as requested in his letter dated 14 June 2004 to the Vice-President of the EIB, as well as a list of the intermediaries that were involved in these projects. The list should include the names and types of projects, the names of the final beneficiaries, the amount of funding per project, and the year of project signing. 1.3 In its opinion, the EIB stated that, in the framework of global loans, all information on individual loan allocations remains within the competence of the intermediary bank and is covered by the exception to disclosure in Article 4(vii) of the EIB's Rules on Public Access to Documents. This provides as follows: "1. Access to all or part of a document shall be refused where its disclosure would undermine the protection of : [...] the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector" It stated that the final beneficiaries' contractual relationship is with the intermediary bank, not with the EIB. The EIB could therefore not disclose information that was part of the confidential relationship between the intermediary bank and the final beneficiary. 1.4 In his observations, the complainant argued that the EIB's application of Article 4(vii) of its Rules on Public Access to Documents effectively prevents the public from obtaining access to information about global loans. The complainant pointed out that his organisation had asked all intermediary banks for information on renewable projects that were funded through the global loans, and that none of these intermediary banks had granted access to the information concerned. The complainant made suggestions as to how he thought that the EIB could handle such applications better in the future. 1.5 The Ombudsman notes that the EIB's initial refusal of 30 June 2004 and its confirmatory refusal of 8 October 2004 referred to the EIB's online information on its transparency policy. One document referred to was a note entitled "EIB's transparent information policy" (dated 12 June 2003). This note contained, among others, the following information: "EIBs public disclosure policy with regard to global loan allocations differs from its information policy on individual loans. Disclosure of detailed information on global loan allocations is the competence of the intermediary bank, as business partner for the end beneficiary, carrying the projects commercial risks and signing the finance contract. Under all global loan arrangements, the EIB ensures that the partner bank is committed to and capable of implementing EIB criteria. The EIB provides, on request, aggregate data on global loan financing, including country and sector breakdowns." Another document referred to was "Public Access to Information - How EIB communicates - an overview". The document was published in October 2002. Page 2 of the documents deals with "Project-related

645

information", and provides information on the EIB's information policy regarding specific categories of documents. A separate section is "Information on Global Loans", in which the statement quoted above is essentially repeated. 1.6 It appears from the above that the EIB has adopted a practice of not giving detailed information on global loan allocations, but to provide only aggregate data on global loan financing, including country and sector breakdowns. According to the EIB, this practice was based on the consideration that t he final beneficiaries' contractual relationship was with the intermediary bank, not with the EIB, and that the EIB should therefore not disclose information that was part of the confidential relationship between the intermediary bank and the final beneficiary. In the Ombudsman's view, this consideration appears to be legitimate. On that basis, the Ombudsman considers that the EIB's refusal on the basis of Article 4(vii) of the EIB's Rules on Public Access to Documents was justified. There has therefore been no maladministration regarding this aspect of the case. 1.7 In the light of the above finding, the Ombudsman does not consider it necessary to further examine the complainant's first claim. 2. Alleged failure to respond to request 2.1 The complainant alleged that the EIB had failed to respond to his request of 9 July 2004 for data collected from financial intermediaries and a list of intermediaries that provided loans for renewable energy projects in the period 1999-2003, including the number of projects and the total amount that each of these intermediaries disbursed for renewable projects in each of the years. Furthermore, t he complainant claimed that the EIB should set up transparent procedures that would provide that complaints such as his should be dealt with within one month of receipt of the complaint, unless there were specific reasons why this would not be possible. 2.2 In its opinion, the EIB apologised for its failure to respond to the complainant's email of 9 July 2004. However, the EIB pointed out that this failure to reply had never been the subject of a formal complaint or a reminder from the complainant. The email was received at a time when the EIB was handling several other communications from the complainant. The EIB stated that if the complainant was still interested in receiving a reply to the information request contained in the email, it would be pleased to provide him with an answer. 2.3 In his observations, the complainant stated that he had now formally requested the data referred to and additionally requested the data for the year 2004. 2.4 The EIB has acknowledged that it failed to reply to the information request here concerned, and has apologised for this in its opinion. It furthermore appears that the complainant has accepted the EIB's invitation to renew his request for the information here concerned. In these circumstances, the Ombudsman considers that it is not necessary to make further inquiries into the second allegation.

646

3. Alleged delay in responding to complaint 3.1 The complainant alleged that there had been delays in the EIB's response to his complaint of 9 July 2004. 3.2 In its opinion, the EIB stated that after having acknowledged receipt of the complainant's complaint on 12 July 2004, the EIB sent the complainant a letter on 30 July 2004, informing him that it would address the matter after the summer break. The EIB considered that in doing so, it had acted in accordance with Article 13(2) of its Code of Good Administrative Behaviour, which provides that "[w]here, on account of the complexity of the issues raised, a reply cannot be provided within the abovementioned period [of two months], the member of staff responsible shall inform the correspondent thereof without delay. In this event, the correspondent shall be furnished with a definitive reply as soon as possible." It stated that in the light of the complexity of the complainant's complaint, it had been necessary to wait until all the relevant expert staff could be fully consulted. 3.3 In his observations, the complainant stated that he did not accept the EIB's explanation. 3.4 It is good administration to respond to complaints within a reasonable period of time, and in any case within the deadline, if any, laid down by the institution concerned. In the present case, the deadline laid down by the EIB was two months. The complainant's letter here concerned, dated 9 July 2004, in the first place contained a complaint against a refusal to provide access to documents. It appears from the EIB's opinion in the present inquiry that the EIB has a clearly formulated policy regarding the kind of information contained in the documents requested by the complainant. As noted above in relation to the first allegation, the EIB basically considers that the information concerned is confidential, and that access cannot be granted. The complainant was informed about this in the EIB's reply of 8 October 2004. The complainant's letter of 9 July 2004 also contained remarks as to the quality of the reasoning initially given by the EIB for its refusal to grant access. In the EIB's reply of 8 October 2004, that issue was clarified by adding a reference to the EIB's Code of Good Administrative Behaviour, and a short clarification. 3.5 In the light of the above, the Ombudsman fails to see why the EIB considered the issues raised in the complainant's letter of 9 July 2004 to have been "complex" within the meaning of Article 13(2) of its Code of Good Administrative Behaviour. An application for documents in respect of which the EIB already has a clearly formulated policy, and which sets out only minor procedural grievances relating to the EIB's decision on the first application, cannot, in the Ombudsman's view, be considered to be complex. The Ombudsman therefore considers that the EIB's failure to reply to the complainant's complaint of 9 July 2004 within the two-month deadline set out in its Code of Good Administrative Behaviour was an instance of maladministration. A critical remark is made below.

647

3.6 With regard to the complainant's claim that the EIB should apply a one-month deadline for replying to complaints, the Ombudsman has already pointed out above that it is good administration to respond to complaints within a reasonable period of time. However, the Ombudsman also points out that principles of good administration do not prescribe concrete deadlines. Setting such deadlines would be the task of the Community legislator or the institution concerned. The Ombudsman understands from the EIB's opinion that the EIB could take the issues raised by the complainant into account in its current review of its disclosure and information policy, and that the complainant's suggestion has already been brought to the attention of the EIB's governing bodies. The Ombudsman therefore does not consider it necessary to examine the complainant's second claim at this stage. 4. Involvement of staff in handling of complaint 4.1 The complainant alleged that EIB staff against whom his complaint of 9 July 2004 had been wrongly involved in the EIB's response made to that complaint. He claimed that the EIB should ensure that its staff members who are the subject of complaints should not be involved in the handling of such complaints. 4.2 In its opinion, t he EIB stated that the staff member referred to by the complainant had only been asked to acknowledge receipt of the complaint in the absence of other relevant staff during the summer break. The staff member concerned had not been involved in processing and examining the complaint. However, to avoid similar misunderstandings in the future, the EIB had already taken measures to ensure a clear separation of tasks in the handling of complaints to the EIB in the future. 4.3 In his observations, the complainant welcomed the EIB's response to the fourth allegation. 4.4 It appears from the EIB's opinion that the staff concerned was merely carrying out administrative tasks in order to confirm receipt of the complainant's complaint to the EIB. The complainant does not appear to have disputed this information. 4.5 In the light of the above, it appears that the staff concerned was merely carrying out a simple administrative task, and that this was in the interest of the complainant. The Ombudsman does not, therefore, consider that the involvement of the staff concerned was inappropriate, and it appears, therefore, that there has been no maladministration with regard to this aspect of the case. It therefore also does not appear necessary to examine the complainant's third claim. 5. Information policy and procedures allegedly not clearly defined 5.1 The complainant alleged that the EIB's information policy and procedures were not clearly defined. He claimed that the EIB should clearly define its information policy and procedures and all of the documents to which they apply.

648

5.2 In its opinion, the EIB referred to its letter to the complainant of 8 October 2004, in which clarifications were made regarding the nature and status of documents published on the EIB's information policy. The EIB furthermore pointed out that it was about to launch a public consultation procedure as part of a review of its public information policy, a review which would include the issues raised by the complainant. 5.3 In his observations, the complainant welcomed the EIB's decision to launch a review of its public information policy. The complainant indicated that his organisation would work actively to contribute to that review. 5.4 In the light of the ongoing consultation process for a review of the EIB's disclosure and information policy, the Ombudsman considers that it would not be appropriate to review the complainant's fifth allegation at this stage. For the same reason, the Ombudsman does not examine the complainant's fourth claim. 6. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark in respect of the complainant's third allegation: It is good administration to respond to complaints within a reasonable period of time, and in any case within the deadline, if any, laid down by the institution concerned. In the present case, the deadline laid down by the EIB was two months. The complainant's letter here concerned, dated 9 July 2004, in the first place contained a complaint against a refusal to provide access to documents. It appears from the EIB's opinion in the present inquiry that the EIB has a clearly formulated policy regarding the kind of information contained in the documents requested by the complainant. The complainant was informed about this in the EIB's reply of 8 October 2004. The complainant's letter of 9 July 2004 also contained remarks as to the quality of the reasoning initially given by the EIB for its refusal to grant access. In the EIB's reply of 8 October 2004, that issue was clarified by adding a reference to the EIB's Code of Good Administrative Behaviour, and a short clarification. In the light of the above, the Ombudsman fails to see why the EIB considered the issues raised in the complainant's letter of 9 July 2004 to have been "complex" within the meaning of Article 13(2) of its Code of Good Administrative Behaviour. An application for documents in respect of which the EIB already has a clearly formulated policy, and which sets out only minor procedural grievances relating to the EIB's decision on the first application, cannot, in the Ombudsman's view, be considered to be complex. The Ombudsman therefore considers that the EIB's failure to reply to the complainant's complaint of 9 July 2004 within the two-month deadline set out in its Code of Good Administrative Behaviour was an instance of maladministration.

649

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes his inquiry into the complainant's third allegation. With regard to the complainant's first and fourth allegations, the Ombudsman has found no maladministration. With regard to the complainant's second allegation, the Ombudsman considers that further inquiries are not necessary. With regard to the complainant's fifth allegation, the Ombudsman considers that it would not be appropriate to review that allegation at this stage, given the EIB's current process of reviewing its disclosure and information policy. For the reasons stated above, the Ombudsman does also not consider that further inquiries into the complainant's claims are necessary. The Ombudsman therefore closes his inquiry. The President of the European Investment Bank will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

"Where the Bank is approached with an application in respect of a document in its possession received from a third party, it shall consult the third party concerned for agreement, save where it results clearly from examination of the document in the light of this decision that it must or must not be disclosed."

650

Decision of the European Ombudsman on complaint 3446/2004/GG against the European Anti-Fraud Office

Strasbourg, 12 December 2005

Dear Mr T., On 15 November 2004, you made a complaint to the European Ombudsman concerning information published on the website of the European Anti-Fraud Office ("OLAF"). On 13 December 2004, I forwarded the complaint to the Director General of OLAF. I received the English version of OLAF's opinion on 5 April 2005 and the translation of the opinion into German on 18 April 2005. I forwarded the opinion to you on 7 April 2005 (English original) and on 19 April 2005 (German translation) with an invitation to make observations, which you sent on 19 April 2005. On 31 May 2005, I addressed a draft recommendation to OLAF. By letter dated 29 July 2005, OLAF informed me that it was ready to accept the draft recommendation and suggested three possibilities as to how it could be implemented. OLAF requested me to indicate which of these possibilities it should choose in order to satisfy the requirements of the draft recommendation. In my reply of 30 August 2005, I informed OLAF that the first two of the possibilities described by OLAF appeared to be likely to solve the problem raised in the present case. I pointed out, however, that I considered it appropriate to obtain your views as well. A copy of OLAF's letter of 29 July 2005 and of my reply thereto were therefore forwarded to you on 30 August 2005. In your reply of 5 September 2005, you pointed out that you considered the second of the options outlined by OLAF to be particularly suitable. On 7 September 2005, I forwarded a copy of your reply to OLAF. On 28 September 2005, and in the absence of a reply, I asked OLAF for its detailed opinion on my draft recommendation. On 24 October 2005, OLAF submitted the English version of its detailed opinion on my draft recommendation. The German translation followed on 8 December 2005. I forwarded it to you on 27 October 2005 (English version) and on 8 December 2005 (German translation) with an invitation to make observations, which you sent on 21 November 2005.
651

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

THE COMPLAINT Background The complainant, a German journalist, used to be the Brussels correspondent of the Stern, a German weekly newspaper. On 7 March 2002, the newspaper covered a number of accusations concerning alleged irregularities that had been raised by an EU official, Mr Paul van Buitenen, and the inquiries carried out by the European AntiFraud Office ("OLAF") regarding these accusations. The article was based on the report of Mr van Buitenen and a confidential OLAF document that the newspaper had obtained. According to the complainant, no other newspaper had obtained copies of these documents by that time. On 27 March 2002, OLAF published a press release in which it pointed out that a journalist had obtained a number of documents relating to its inquiry into the points that had been raised by Mr van Buitenen and that OLAF had therefore decided to open an internal inquiry regarding the suspected disclosure of confidential data. According to the press release, this internal inquiry would also cover the allegation that the relevant documents had been obtained by paying a civil servant. In its edition of 4 April 2002, the newspaper European Voice quoted an OLAF spokesman as having said that OLAF had been given prima facie evidence that a payment may have occurred. The complainant and his newspaper considered that, although no name had been mentioned in OLAFs press release, the accusation of bribery contained therein had to be understood as directed at them. According to the complainant, this accusation was unfounded. Complaint 1840/2002/GG In October 2002, the complainant turned to the Ombudsman (complaint 1840/2002/GG). The Ombudsman took the view that the relevant press release had to be understood as referring to the complainant and that OLAF had not put forward any evidence to support the accusation it had made therein. He therefore addressed a draft recommendation to OLAF according to which OLAF should consider withdrawing the allegations of bribery that were published and that were likely to be understood as directed at the complainant. In its detailed opinion, OLAF informed the Ombudsman that it had accepted the draft recommendation and published a new press release on 30 September 2003 which

652

included the following statement: OLAF's enquiries have not yet been completed, but to date, OLAF has not obtained proof that such a payment was made. The Ombudsman considered that OLAF had thus not properly implemented his draft recommendation. In his decision closing the case, he made the following critical remark: "By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny, OLAF has gone beyond what is proportional to the purpose pursued by its action. This constitutes an instance of maladministration." Subsequent developments In its edition of 9/10 June 2004, the Sddeutsche Zeitung ran an article on the complainant's case under the title "Much too thin - The T. case ('Stern'): An abyss of an Office's failure". The main contents of this article may be summarised as follows: according to the author, the overall picture was that of an abyss of dilettantism on the part of the authorities and a text-book example of the consequences of journalists being garrulous. Mr G., a former spokesman for a member of the Commission, had told OLAF's spokesman, on 22 March 2002, that he had been informed that the complainant had obtained confidential documents from an OLAF official in exchange for remuneration amounting to either EUR 8 000 or 8 000 DM. Having been asked by OLAF to verify his story, Mr G. had subsequently named Mr K. from the Stern as a source who had confirmed that the Stern could pay for information as in the complainant's case. Mr K. vehemently denied having spoken to Mr G. in recent years. Mr G. afterwards confirmed this and told the Sddeutsche Zeitung that the relevant conversation had not been "really concrete". He also told the newspaper that he had not approached Mr K. as regards the present case but rather asked whether it was "still usual" for Stern journalists to pay for information. On 9 June 2004, the EUobserver ran an article on the case in which it summarised the main contents of the above-mentioned article. The EUobserver concluded by mentioning that OLAF's deputy spokesperson had told it that, at first sight, he did not see any reason for a disclaimer as regards the article published in the Sddeutsche Zeitung. In its press review for June 2004, which was made available on its website, OLAF referred to the two articles published by the Sddeutsche Zeitung and the EUobserver. According to this text, it emerged from the article in the Sddeutsche Zeitung that a journalist and former spokesman of a member of the Commission had told OLAF's spokesman in 2002 that he had been informed by a colleague that the complainant may have paid for the information concerned. OLAF's text further stated that, according to the article published by the EUobserver, this former Commission spokesman had confirmed that the complainant had paid either EUR 8 000 or 8 000 DM and had named a member of the Stern staff as his source. OLAF'S text also mentioned that the EUobserver had reported that the deputy spokesperson at OLAF

653

had told it that at first sight there was no reason for a disclaimer as regards the article published in the Sddeutsche Zeitung. On 1 September 2004, the complainant wrote to OLAF in order to ask it to correct what he considered to be wrong and misleading statements in this press review and in a document referred to in one of OLAF's press releases. The complainant criticised in particular that OLAF's text gave the impression that it was an undisputed and confirmed fact that he had been accused, on the basis of information received from a colleague at the Stern, of paying a civil servant. According to the complainant, however, the article in the Sddeutsche Zeitung had not mentioned that Mr K. had been the source for the statement according to which the Stern had paid either EUR 8 000 or 8 000 DM to somebody. He further pointed out that this article had clearly stated that this colleague had denied having spoken to Mr G. In the complainant's view, OLAF had thus omitted to mention facts that were essential for the proper understanding of the article published in the Sddeutsche Zeitung. The complainant added that OLAF's text had correctly quoted the EUobserver's statement that OLAF's deputy press spokesman saw no reason for a disclaimer as regards the article in the Sddeutsche Zeitung. In the complainant's view, however, this passage was misleading as long as readers of the website were not informed that this article had contained a damning appraisal of OLAF's work and had reported erroneous statements made by OLAF. The complainant pointed out that the EUobserver had correctly reported about this article but that OLAF's text had rendered it in a wrong and misleading manner. In his reply of 21 September 2004, the Director General of OLAF informed the complainant that the relevant passage in its press analysis section had been modified in the light of the comments he had made. The revised text of this press analysis section for June 2004 now reads as follows: "1. OLAF investigation into possible misconduct by an EU official suspected of corruption and/or having revealed confidential information concerning ongoing investigations. In June some critical articles about an OLAF investigation into a possible misconduct by an EU official suspected of corruption were published. For example, EUObserver reported on 2 June that Sterns Brussels correspondent ' had filed a case against the European Commission at the Court of first instance asking for damages of 250,000 euro and demanding that the case against him be annulled' (Annex 1). (...) The same online service reported on an article published in Suddeutsche Zeitung on 9 June under the headline: 'Much too thin The T. case ('Stern'): An Abyss of an Offices Failure' (Annex 2), according to which ' before the first public allegation of bribery was made in an OLAF press release' a

654

journalist and former European Commission spokesman ' had met OLAFs spokesperson in 2002 and mentioned that he had heard from a colleague that the Sterns correspondent may have paid for the information'. According to the article this former European Commission spokesman had 'reconfirmed the allegations that the Sterns correspondent had paid 8000 mark or euro and mentions a stern-staff member as his source'. Regarding the Suddeutsche article EUobserver reports that ' the deputy spokesperson at OLAF had told them that at first sight there was no reason for a disclaimer'. (...)" The present complaint In his complaint to the Ombudsman lodged in November 2004, the complainant alleged that the above-mentioned text was still misleading. The complainant alleged that, by citing the relevant articles of the Sddeutsche Zeitung and the EUobserver in a manner that distorted their meaning and that was tendentious, OLAF had failed to behave objectively and impartially as required by Article 11 of the Staff Regulations for officials of the European Communities. The complainant claimed that OLAF should immediately withdraw or correct its misleading text.

THE INQUIRY OLAF's opinion In its opinion, OLAF made the following comments. OLAF's press analysis was intended to present a summary of press articles published about OLAF each month. The press analysis, which was prepared in a printed version, with annexes containing the full version of the articles mentioned therein, was provided to the OLAF Supervisory Committee and the secretary of Parliament's Budgetary Control Committee and was circulated within OLAF. In the interests of transparency, the analysis was also made available to the public on OLAF's internet site. The paragraph challenged by the complainant had stated the following when originally placed on the website: "[The EUobserver] reported on an article published in Sddeutsche Zeitung on 9 June (Annex 2) according to which ' before the first public allegation of

655

bribery was made in an OLAF press release' a journalist and former European Commission spokesman ' had met OLAFs spokesperson in 2002 and mentioned that he had heard from a colleague that the Sterns correspondent may have paid for the information'. According to the article this former European Commission spokesman had 'reconfirmed the allegations that the Sterns correspondent had paid 8000 mark or euro and mentions a stern-staff member as his source'." On 1 September 2004, the complainant had written to OLAF, expressing concerns similar to those expressed in his present complaint to the Ombudsman. On 21 September 2004, OLAF had informed him that it had modified the June 2004 press analysis in response to his concerns. In particular, the headline of the article published in the Sddeutsche Zeitung had been added. The complainant alleged that the statement in the June 2004 press analysis concerning the articles in the Sddeutsche Zeitung and the EUobserver "grossly falsifies and distorts" the contents of these articles, because it creates the impression that "it is an undisputed fact that, on the basis of information received from a colleague at Stern, I stand accused of having paid an official." The complainant argued that OLAF had not included quotations of statements made by Mr G. that would call into question his earlier statements. However, there was no such declaration in the statements cited. Rather, with the addition of the heading made following receipt of the complainant's letter of 1 September 2004, it was clear that the Sddeutsche Zeitung and the EUobserver articles were critical of OLAF, as they suggested that the evidence against the complainant was "much too thin". (These three words were, in fact, a quotation from Mr G.) Moreover, viewed in the context of this section of the press analysis in its entirety, it was clear that these articles were substantially critical of OLAF. Thus, the summary presented could not be read as grossly falsifying and distorting the relevant articles. OLAF had not been willing to amend this paragraph with all the details that the complainant had requested to have included, as it was not the purpose of the press analysis to provide an exhaustive description of what each article contained. Rather, its purpose was to provide a brief overview of the major press coverage of OLAF for the month, together with some highlights of what those articles report. On the basis of the above considerations, OLAF submitted that it had presented a fair summary of the relevant press articles in its press analysis section. The complainant's observations In his observations, the complainant maintained his complaint. He pointed out that Mr G. had stated, in an affidavit dated 6 August 2004 (a copy of which the complainant submitted to the Ombudsman), that he had told the Sddeutsche Zeitung that he had

656

not approached Mr K. as regards the present case but had asked in general terms whether it was still usual to pay for information . Mr G. had added that he had been cited by the Sddeutsche Zeitung in its article of 9 June 2004 accordingly. According to the complainant, the statements in this affidavit were known to OLAF. The complainant further alleged that OLAF had clearly made incorrect statements in its 'background' paper to a press release (concerning complaint 2485/2004/GG) that it had published on 11 March 2005. In this paper OLAF had stated that the complainant had lost his case against Mr G. before the German courts because Mr G. had made his statements incriminating the complainant in the context of an exchange of information "within a public authority". The complainant considered this to be incorrect, given that, in his view, Mr G. had only escaped a condemnation due to the immunity he enjoyed as a former civil servant of the EU.

THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation On 31 May 2005, the Ombudsman addressed the following draft recommendation to OLAF: OLAF should review and correct the information concerning the two articles published by the Sddeutsche Zeitung and the EUobserver that is contained in its press analysis section for June 2004. This draft recommendation was based on the following considerations. 1. Introductory remarks 1.1 In his complaint lodged in November 2004, the complainant, a German journalist, objected to the contents of the press analysis for June 2004 that had been prepared by the European Anti-Fraud Office ("OLAF") and published on OLAF's website. The complainant considered that the relevant text was misleading. 1.2 The Ombudsman sent the complaint to OLAF for an opinion. In his observations on OLAF's opinion, the complainant submitted a further allegation according to which OLAF had made incorrect statements in its "background" paper to a press release that it had published on 11 March 2005. 1.3 Article 2 (4) of the Statute of the European Ombudsman provides that a complaint to the Ombudsman must be preceded by the appropriate administrative approaches to the institutions and bodies concerned . Given that the complainant did not appear to have made any such approaches to OLAF with regard to his second allegation, the Ombudsman was unable to deal with this allegation at present. The complainant

657

remained free to submit a new complaint regarding this allegation after having made the appropriate prior approaches to OLAF. 2. Allegedly misleading or tendentious statements made by OLAF in its press analysis for June 2004 2.1 In its edition of 9/10 June 2004, the Sddeutsche Zeitung ran an article on the complainant's dispute with OLAF(1). On 9 June 2004, the EUobserver published an article in which it summarised the main contents of the above-mentioned article. In its press review for June 2004, which was made available on its website, OLAF referred to the two articles published by the Sddeutsche Zeitung and the EUobserver. After the complainant had objected to this text in a letter of 1 September 2004, OLAF informed him, by letter of 21 September 2004, that the text had been modified. The relevant section of the amended text of OLAF's press review for June 2004 reads as follows: "1. OLAF investigation into possible misconduct by an EU official suspected of corruption and/or having revealed confidential information concerning ongoing investigations In June some critical articles about an OLAF investigation into a possible misconduct by an EU official suspected of corruption were published. For example, EUObserver reported on 2 June that Sterns Brussels correspondent ' had filed a case against the European Commission at the Court of first instance asking for damages of 250,000 euro and demanding that the case against him be annulled' (Annex 1). (...). The same online service reported on an article published in Suddeutsche Zeitung on 9 June under the headline: 'Much too thin The T. case ('Stern'): An Abyss of an Offices Failure' (Annex 2), according to which ' before the first public allegation of bribery was made in an OLAF press release' a journalist and former European Commission spokesman ' had met OLAFs spokesperson in 2002 and mentioned that he had heard from a colleague that the Sterns correspondent may have paid for the information'. According to the article this former European Commission spokesman had 'reconfirmed the allegations that the Sterns correspondent had paid 8000 mark or euro and mentions a stern-staff member as his source'. Regarding the Suddeutsche article EUobserver reports that ' the deputy spokesperson at OLAF had told them that at first sight there was no reason for a disclaimer'. (...)".

658

2.2 In his complaint to the Ombudsman, the complainant alleged that the abovementioned text was still misleading. The complainant criticised OLAF's text in particular for giving the impression that it was an undisputed and confirmed fact that he had been accused, on the basis of information received from a colleague at the Stern, of paying a civil servant. According to the complainant, however, this was not what the article had said. The complainant alleged that, by citing the relevant articles of the Sddeutsche Zeitung and the EUobserver in a manner that distorted their meaning and that was tendentious, OLAF had failed to behave objectively and impartially as requested by Article 11 of the Staff Regulations for officials of the European Communities. He claimed that OLAF should immediately withdraw or correct its misleading text. 2.3 It should be noted from the outset that the present case does not concern the question as to whether the accusations that have (or may have been) made by Mr G. against the complainant are well-founded. The present complaint focuses exclusively on the issue of whether OLAF provided misleading information on two articles published in June 2004 in its press analysis for June 2004. 2.4 In its opinion, OLAF explained that its press analysis is intended to present a summary of press articles published about OLAF each month. According to OLAF, this press analysis is prepared in a printed version, with annexes containing the full version of the articles mentioned, that is provided to the OLAF Supervisory Committee and the secretary of Parliament's Budgetary Control Committee and that is circulated within OLAF. OLAF added that in the interest of transparency, the analysis is also made available to the public on OLAF's internet site. 2.5 The Ombudsman considers that it is good administrative practice to ensure that the information provided by EU institutions and bodies is correct and not misleading and to correct promptly any errors that may occur. 2.6 In the Ombudsman's view, the relevant section of OLAF's press analysis for June 2004, as revised following the presentations made to OLAF by the complainant, contains the following two statements: (1) According to the article published in the Sddeutsche Zeitung, a journalist and former Commission spokesman had met OLAF's spokesman in 2002 and mentioned that he had heard from a colleague that the complainant may have paid for the confidential information he had obtained; (2) according to the same article, this former Commission spokesman had "reconfirmed the allegations that the Stern's correspondent had paid 8000 mark or euro and mentions a stern-staff member as his source". 2.7 The Ombudsman considers that the first of these two statements is essentially correct. It is true that the article in the Sddeutsche Zeitung also mentions that the person (Mr K.) whom Mr G. (the "journalist and former European Commission spokesman") had ultimately named as his source denied having spoken to Mr G. in relation to the issue of bribery. The Ombudsman considers, however, that this fact does not affect the correctness of the above-mentioned statement made in OLAF's

659

press analysis. Mr K.'s statement may well call into doubt the value of the statement that Mr G. made to OLAF's press spokesman in 2002, but it does not alter the fact that this statement was made. 2.8 As regards the second of the above-mentioned statements, OLAF's text clearly implies that Mr G. confirmed (or reconfirmed, as OLAF put it) his accusations against the complainant after having been questioned by the newspaper. The Ombudsman notes, however, that this was clearly not what the article said. According to the article published by the Sddeutsche Zeitung, Mr G. had, when confronted with Mr K.'s statement, admitted that the relevant conversation had not been "really concrete". Still according to this article, Mr G. had also told the newspaper that he had not approached Mr K. as regards the present case but rather asked whether it was "still usual" for journalists at the Stern to pay for information. It is thus clear that, contrary to OLAF's press analysis, it does not emerge from the article in the Sddeutsche Zeitung that Mr G. "reconfirmed the allegations that the Stern's correspondent had paid 8000 mark or euro and mentions a stern-staff member as his source"(2). In these circumstances, the relevant part of OLAF's press analysis must indeed be considered as being misleading. This conclusion is not affected by the fact that the current version of OLAF's text mentions the title of the article published in the Sddeutsche Zeitung which shows that its author was very critical of OLAF's behaviour. The Ombudsman considers that hardly any person who has read the second of the above-mentioned statements will surmise that the title of this article quotes Mr G. himself who, according to the article, told the newspaper that the information he had provided to OLAF was in his view "much too thin" to open an inquiry. 2.9 In its press analysis section for June 2004, the above-mentioned section is followed by a paragraph that is worded as follows: "Regarding the Suddeutsche article EUobserver reports that ' the deputy spokesperson at OLAF had told them that at first sight there was no reason for a disclaimer' ." It should be noted that the article in the EUobserver reported what had been written in the article in the Sddeutsche Zeitung , namely that Mr G. had admitted that he had not talked "very concretely" with Mr K. and that he had only asked whether Stern staff in general still used the practice of paying for information. The Ombudsman considers that omitting this information distorts the meaning of the statement that OLAF's deputy spokesman did not consider it necessary to react to the article in the Sddeutsche Zeitung . In the absence of correct information on the relevant contents of the articles that were published in the two newspapers, this statement in OLAF's press analysis for June 2004 thus also has to be considered as being misleading. 2.10 On the basis of his inquiry into the present complaint, the Ombudsman concludes that OLAF did indeed, as the complainant alleged, continue to provide misleading information in its press analysis for June 2004. This constitutes an instance of maladministration.

660

OLAF's detailed opinion Preparatory correspondence By letter dated 29 July 2005, OLAF informed the Ombudsman that it was ready to accept the draft recommendation and suggested three possibilities as to how it could be implemented. OLAF requested the Ombudsman to indicate which of these possibilities it should choose in order to satisfy the requirements of the draft recommendation. In his reply of 30 August 2005, the Ombudsman informed OLAF that the first two of the possibilities described by OLAF appeared to be likely to solve the problem raised in the present case but that he considered it appropriate to obtain the complainant's views as well. A copy of OLAF's letter of 29 July 2005 and of the Ombudsman's reply thereto were therefore forwarded to the complainant on 30 August 2005. In his reply of 5 September 2005, the complainant pointed out that he considered the second of the options outlined by OLAF to be particularly suitable. On 7 September 2005, the Ombudsman forwarded a copy of this reply to OLAF. The detailed opinion On 24 October 2005, OLAF submitted its detailed opinion on the Ombudsman's draft recommendation. OLAF indicated that it had opted for the second of the possibilities it had set out in its letter of 29 July 2005 and thus changed the wording of one of the paragraphs in the relevant press section. A copy of the revised version (in English, French and German) was attached to the detailed opinion. This amended paragraph (and the following one that remained unchanged) now reads as follows: "The same online service reported on an article published in Sddeutsche Zeitung on 9th June under the headline: 'Much too thin The T. case ('Stern'): An Abyss of an Offices Failure' (Annex 2), according to which ' before the first public allegation of bribery was made in an OLAF press release'a journalist and former European Commission spokesman ' met OLAFs spokesperson in 2002 and mentioned that he had heard from a colleague that the Sterns correspondent may have paid for the information'. Sddeutsche Zeitung quotes him as saying that the conversation with that colleague had not been 'very concrete' and that he had only asked whether Stern staff in general still used the practice of paying for information. He is also quoted as saying 'I would have considered these statements as much too thin'.

661

Regarding the Suddeutsche article EUobserver reports that ' the deputy spokesperson at OLAF had told them that at first sight there was no reason for a disclaimer'. " The complainant's observations In his observations, the complainant acknowledged that OLAF had now made the necessary corrections and thanked the Ombudsman for his intervention. He noted, however, that he failed to see why OLAF had waited more than a year before proceeding to make these corrections. The complainant expressed the view that OLAF had acted deliberately and that such behaviour by a public authority was absolutely unacceptable.

THE DECISION 1. Allegedly misleading or tendentious statements made by OLAF in its press analysis for June 2004 1.1 In his complaint lodged in November 2004, the complainant, a German journalist, objected to the contents of the press analysis for June 2004 that had been prepared by the European Anti-Fraud Office ("OLAF") and published on OLAF's website. The complainant alleged that by citing the relevant articles of the Sddeutsche Zeitung and the EUobserver in a manner that distorted their meaning and that was tendentious, OLAF had failed to behave objectively and impartially as requested by Article 11 of the Staff Regulations for officials of the European Communities. He claimed that OLAF should immediately withdraw or correct its misleading text. 1.2 On 31 May 2005, the Ombudsman addressed a draft recommendation to OLAF in which he recommended that OLAF should review and correct the information concerning the two articles published by the Sddeutsche Zeitung and the EUobserver that is contained in its press analysis section for June 2004. 1.3 On 29 July 2005, OLAF informed the Ombudsman that it was ready to accept the draft recommendation and suggested three possibilities as to how it could be implemented. OLAF requested the Ombudsman to indicate which of these possibilities it should choose in order to satisfy the requirements of the draft recommendation. In his reply of 30 August 2005, the Ombudsman informed OLAF that the first two of the possibilities described by OLAF appeared to be likely to solve the problem raised in the present case but that he considered it appropriate to obtain the complainant's views as well. A copy of OLAF's letter of 29 July 2005 and of the Ombudsman's reply thereto were therefore forwarded to the complainant on 30 August 2005. In his reply of 5 September 2005, the complainant pointed out that he considered the second of the options outlined by OLAF to be particularly suitable. A copy of this letter was forwarded to OLAF.

662

1.4 In its detailed opinion submitted on 24 October 2005, OLAF informed the Ombudsman that it had opted for the second of the possibilities it had set out in its letter of 29 July 2005 and thus changed the wording of one of the paragraphs in the relevant press section. A copy of the revised version (in English, French and German) was attached to the detailed opinion. 1.5 In his observations, the complainant acknowledged that OLAF had now made the necessary corrections and thanked the Ombudsman for his intervention. He noted, however, that he failed to see why OLAF had waited more than a year before proceeding to these corrections. The complainant expressed the view that OLAF had delayed deliberately and that such behaviour by a public authority was absolutely unacceptable. 2. Conclusion In view of the above, the Ombudsman takes the view that OLAF has accepted his draft recommendation and that the measures taken to implement it are satisfactory. The Ombudsman notes that the complainant criticises the fact that OLAF has not taken the necessary steps earlier. However, no further allegations and claims appear to be made by the complainant in this context. The Ombudsman therefore closes the case. The Director General of OLAF will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

The background of this dispute is set out in detail in the special report that the Ombudsman addressed to the European Parliament on 12 May 2005 in case 2485/2004/GG. The special report is available on the Ombudsman's website (http://www.euro-ombudsman.eu.int).

Given that the above result already follows from the interpretation of the article itself, there is no need to consider the affidavit of Mr G. that was submitted by the complainant with his observations on OLAF's opinion (which would in any event confirm this interpretation).

(2)

663

Decision of the European Ombudsman on joint complaints 3452/2004/JMA et al. against the European Commission

Strasbourg, 19 October 2005

The Ombudsman received a large number of complaints against the European Commission concerning the institution's decision to start infringement proceedings against Spain in connection with the free lending of books by Spanish public libraries. As all the complaints concerned the same subject-matter and involved identical allegations, I decided to deal with all of them in a joint inquiry. The list of all complaints grouped under this inquiry has been annexed to the end of this decision. On 31 January, 30 March and 15 April 2005, I forwarded your complaint together with all the related complaints to the President of the Commission, with a request for an opinion. On the same date, I informed the Spanish Ombudsman of my initiative, since it appeared that the legislative proposals made by the Spanish authorities in response to the Commission's requests, constituted the object of an inquiry he was carrying out. In order to foster mutual cooperation, I undertook in my letter to the Spanish Ombudsman to send him a copy of the reply provided by the Commission, for the purposes of his own inquiry. On 2 May 2005, the Commission sent its opinion, which I forwarded to all the complainants with an invitation to make observations. A copy of the opinion was also sent to the Spanish Ombudsman. On 27 May and 2 June 2005, I received observations from two of the complainants in case 1417/20005/JMA. A number of complainants in cases 337/2005/JMA, 356/2004/JMA and 1417/2005/JMA acknowledged receipt of the Commission's opinion, even though they did not send any observations. The results of the inquiries that have been made are described below.

THE COMPLAINTS The facts of the case, according to the complainants, are, in summary, as follows: Spanish public libraries have traditionally lent books to the public without charge. It appears that the Commission took the view that this practice was contrary to the provisions of Directive 92/100/EEC on rental right and lending right and on certain rights related to copyright in the field of intellectual property(1). Accordingly, the institution decided to open an inquiry under Article 226 EC. The Commission sent a reasoned opinion to the Spanish authorities in which it requested a number of changes to the relevant national legislation. As a result of this request, the Spanish authorities announced that they intended to modify the national legislation transposing the
664

Directive, including new provisions establishing that citizens borrowing books from public libraries should pay a charge. In the complainants' view, the Commission's request and the ensuing reply by the Spanish authorities did not respect either the rights of the public or those of librarians. They argued that the Commission's interpretation of Directive 92/100 undermines a basic public service and goes against the rights of citizens to have access to culture. They therefore asked the Ombudsman to intervene. The complainants allege, in summary, that: The Commission's interpretation of Directive 92/100/EEC as regards the free lending of books by Spanish public libraries and the institution's subsequent decision to pursue infringement proceedings against Spain undermines the existence of public libraries as a basic public service, and goes against the fundamental rights of citizens to have access to culture.

THE INQUIRY The Commission's opinion In its opinion the Commission gave first some factual background to the case. It explained that, in its report on the public lending right in the European Union (COM(2002) 502 final)(2), its services had noted that a number of Member States, including Spain, had not transposed Articles 1 and 5 of Directive 92/100/ EEC correctly because they had failed to ensure that authors were remunerated for the lending of their works through public libraries. Accordingly, the Commission initiated infringement proceedings against Spain, which is one of a number of similar cases that have been brought against France, Ireland, Italy, Luxembourg and Portugal. The Commission noted that the infringement proceedings in question had not been initiated because public libraries in Spain lend books free of charge. Respect for the right of copyright and related rights and the remuneration of these rights, as provided for in Directive 92/100/EEC, does not mean that borrowers may no longer borrow books free of charge, nor does it mean that libraries are required to pay additional fees. In most Member States, this remuneration is financed by the relevant public authorities. The Commission justified its decision to initiate infringement proceedings in this case because authors from Spain and other EU Member States are not receiving the remuneration which is due to them. In accordance with Directive 92/100/EEC, in particular Article 1, authors have exclusive rights as regards the public lending of their works; the right of authors to receive remuneration, which is provided for in Article 5(1), already represents a derogation from this fundamental principle. This derogation has been made in order to strike a fair balance between the interests of authors, whose

665

rights concerning their works must be protected, and of the public, whose right to freely access information and knowledge is not in doubt. The Commission acknowledged the important role played by public libraries in acting as a conduit for culture and information. It stated that it, by no means, intended to make it more difficult for European citizens to gain access to culture. However, the protection of copyright is a prerequisite to disseminating information and knowledge. The Directive ensures a fair balance between these two requirements. Moreover, the Spanish authorities did not submit any draft document or a timetable to the Commission to ensure that the proceedings in question could be halted. In view of the situation, the Commission decided to refer the matter to the European Court of Justice (Case C-36/05 Commission v Spain), which is currently considering the case. The complainants' observations The observations received by the Ombudsman repeated the allegations made in the original complaints. Comments from national and regional ombudsmen in the European Network of Ombudsmen Given that Directive 92/100/EEC has to be implemented in all Member States of the European Union, the Ombudsman considered that it would be useful to exchange information on the subject with his national and regional counterparts in the European Network of Ombudsmen. The aim of this initiative was to ascertain whether or not there could be alternative ways of correctly implementing Directive 92/100/ EEC that would not necessarily involve charging individuals for borrowing books from public libraries. Accordingly, the Ombudsman asked for the help of his EU national and regional counterparts in replying to a number of questions related to this situation. This initiative elicited widespread reaction from national ombudsmen, including those of Denmark, Finland, France, Greece, Latvia, Lithuania, the Netherlands, Portugal and Sweden, as well as from the German Bundestag's Petitions Committee. On the basis of the information submitted by these national authorities, it appears that most Member States have been able to correctly implement Directive 92/100/ EEC by means that do not necessarily involve charging individuals for borrowing books from public libraries. In some other cases, however, the correct transposition of the Directive 92/100/EEC appears to be in dispute, and the Commission has raised doubts about the implementing national rules. Accordingly, this institution had requested additional information from the Greek authorities; it had opened infringements proceedings against Finland; and it had taken legal action against Portugal before the European Court of Justice.

666

THE DECISION 1. Preliminary remark 1.1 To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. The Ombudsman's inquiries in this case have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission. The European Ombudsman has no competence to inquire into the activities of Spanish authorities. 2. The Commission's decision to pursue infringement proceedings against Spain 2.1 The complainants allege that the Commission's interpretation of Directive 92/100/EEC as regards the free lending of books by Spanish public libraries, and the institution's subsequent decision to pursue infringement proceedings against Spain undermines the existence of public libraries as a basic public service, and goes against the fundamental rights of citizens to have access to culture. 2.2 The Commission argues that it had decided to initiate infringement proceedings against Spain, as well as against other Member States, such as France, Ireland, Italy, Luxembourg and Portugal, because their authorities had not transposed Articles 1 and 5 of Directive 92/100/ EEC correctly. The Commission considers that the Spanish authorities failed to ensure that authors were remunerated for the lending of their works through public libraries. The Commission justifies its decision to initiate infringement proceedings in this case because authors from Spain and other EU Member States are not receiving the remuneration that is due to them. The institution acknowledges the important role played by public libraries in acting as a conduit for culture and information, and states that it, by no means, intends to make it more difficult for European citizens to gain access to culture. In view of the situation, the Commission explains that it decided to refer the matter to the European Court of Justice (Case C-36/05 Commission v Spain), which is currently considering the case. 2.3 Having carefully reviewed the factual situation in this case, the Ombudsman takes the view that the facts of the complaints lodged with him do not appear to be identical to those in Case C-36/05, to the extent that the complainants before the Ombudsman and the parties in the case are not the same.

667

On the basis of the available information, however, it appears that the European Court of Justice, in the framework of Case C-36/05, will be called upon to decide whether or not the Commission's interpretation of the relevant provisions of Directive 92/100/ EEC is legally correct, and therefore if the institution's decision to pursue infringement proceedings against Spain was justified. It is clear from the above considerations that the findings of the European Court of Justice in Case C-36/05 shall have a direct bearing on, and should considerably influence, the Ombudsman's inquiry. As set out in Article 195 EC: "In accordance with his duties, the European Ombudsman shall conduct inquiries for which he finds grounds [...]." Taking into account that the very same issue that the Ombudsman has been called upon in his inquiry constitutes the object of a case pending before the European Court of Justice, the Ombudsman does not consider it justified to pursue any further inquiries as regards these complaints. 3. Conclusion In view of the results of his investigation, the Ombudsman considers that no further inquiries into these complaints are justified. He therefore closes the cases. The President of the Commission will also be informed of this decision. Taking into account the interest of the Spanish Ombudsman in this inquiry, a copy of this decision will also be forwarded to him.

FURTHER REMARK The Ombudsman finds it appropriate to underline that his inquiry in this case and especially the co-operation with national ombudsmen has helped the complainants to clarify the reasons for the Commissions actions and the possibilities for a correct implementation of the Directive. Yours sincerely,

P. Nikiforos DIAMANDOUROS -------------------------

668

Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, OJ L 346, 27/11/1992 p. 0061-0066. Report from the Commission to the Council, the European Parliament and the Economic and Social Committee on the public lending right in the European Union, COM(2002) 502 final.
(2)

(1)

669

Decision of the European Ombudsman on complaint 3485/2004/OV against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 27 January 2005

Dear Mr X., On 25 November 2004, you made a complaint to the European Ombudsman concerning the reimbursement of your travel and accommodation expenses in the framework of your participation in open competition COM/A/12/01. On 15 December 2004, I forwarded the complaint to the President of the Commission. On 30 December 2004, you sent an e-mail informing me that the payment had been executed. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts were as follows: The complainant participated in open competition COM/A/12/01. He was invited for an interview in Ispra, Italy on 15 and 16 January 2004. On 16 January 2004, the complainant used the official form to request the reimbursement of his travel (plane ticket) and accommodation expenses for an amount of EUR 320. The complainant sent several e-mails to the Commission about the matter in July, September and October 2004, but at the date of the complaint, he had still not been reimbursed. In the last e-mail received by the complainant, the Commission merely informed him that his message had been registered with the number 2004/A/15557 on 15.10.2004 and had been assigned for action. On 25 November 2004, the complainant made the present complaint to the Ombudsman. He claimed that the Commission should reimburse his travel and accommodation expenses for participating in open competition COM/A/12/1.

670

THE INQUIRY On 15 December 2004, the Ombudsman sent the complaint to the Commission for an opinion. On 30 December 2004, the complainant informed the Ombudsman by e-mail that the payment had been executed and that the case could consequently be closed.

THE DECISION 1. The claim for reimbursement of travel and accommodation expenses 1.1 The complainant claims that the Commission should reimburse his travel and accommodation expenses for participating in open competition COM/A/12/1. 1.2 On 30 December 2004, the complainant informed the Ombudsman by e-mail that the payment had been executed and that the case could consequently be closed. 2. Conclusion It appears from the complainant's e-mail of 30 December 2004 that the Commission has taken steps to settle the matter and has thereby satisfied the complainant. The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS

671

Decision of the European Ombudsman on complaint 3622/2004/GG against the European Commission

Strasbourg, 30 May 2005

Dear Mr B., On 10 December 2004, you made a complaint to the European Ombudsman concerning the European Commission's handling of a complaint you had submitted to it. On 21 December 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 12 April 2005. I forwarded it to you on 13 April 2005 with an invitation to make observations, which you sent on 18 April 2005. I am writing now to let you know the results of the inquiries that have been made. To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

THE COMPLAINT The complainant, a German national, lives in Alsace. He used the French telecommunications company Tele 2 and wished to pay his bills by direct debit from his German bank account. However, Tele 2 refused to provide him with the information necessary to carry out such transactions (i.e., the IBAN number and the BIC code). Considering that the behaviour of Tele 2 constituted an infringement of EU rules on the internal market, the complainant addressed himself to the European Commission's Representation in Berlin in August 2003. The Representation forwarded this letter to the Commission's Directorate-General ("DG") Internal Market. By letter dated 26 August 2003, DG Internal Market informed the complainant that it had asked the French authorities for information in relation to the behaviour of Tele 2.
672

The complainant subsequently addressed several e-mails to the Commission. In his complaint to the Ombudsman, the complainant basically alleged that the Commission had failed to handle his complaint against Tele 2 properly.

THE INQUIRY The Commission's opinion In its opinion, the Commission made the following comments: On a practical level it should be noted that the Commission had not received any of the e-mails to which the complainant had referred. The Commission had written to the complainant on 26 August 2003 and had spoken to him on the telephone several times at this date. Now that the Commission had received the relevant e-mails via the Ombudsman, it had written to the complainant on 28 February 2005, to reply to the new arguments the complainant had raised. As far as the Commission understood, Tele 2 had, when Regulation (EC) 2560/2001 of the European Parliament and of the Council of 19 December 2001 on cross-border payments in Euro (OJ 2001 L 344, p. 13) entered into force, decided to refuse to be paid by cheques and informed all clients that the only possible payment instrument was direct debit ("prlvement automatique" or TIP in France). The complainant had proposed to pay by credit transfer and had therefore asked Tele 2 to give him their IBAN (International Bank Account Number) and their BIC (Bank Identifier Code). Since Tele 2 did not accept credit transfers, it had refused to provide this information and instead asked the complainant to pay by direct debit via a French bank or "La Poste" by "mandat cash". The complainant considered this to be an infringement of Regulation 2560/2001. However, every company could choose the payment instrument that it accepts, except for cash which is legal tender. Nothing in Regulation 2560/2001 obliged a company to accept a specific payment instrument. Regulation 2560/2001 only indicated a principle of non-discrimination between national and cross-border payment instruments. As regards the provision of the IBAN and the BIC, Article 5 (4) of the Regulation provided as follows: "For all cross-border invoicing of goods and services in the Community, a supplier who accepts payment by transfer shall communicate his IBAN and the BIC of his institution to his customers."

673

Tele 2 was therefore entitled to refuse to give its international banking coordinates to the complainant. There was no infringement of Community law. Tele 2 was not invoicing cross-border, as the service was rendered in France and invoiced there. Direct debit did not exist in the EU on a cross-border basis. For technical and legal reasons, it was not possible to set up a cross-border direct debit. This was one of the major failures in the payment world today: direct debit was one of the most popular payment instruments, but it did not work on a cross-border basis. This was due to the lack of a pan-European infrastructure and to the lack of a common legal framework. The Commission was currently working on the creation of a single payment area, including a pan-European direct debit scheme. This had been explained in Communication COM(2003) 718 final of 2 December 2003 from the Commission to the Council and the European Parliament concerning a New Legal Framework for Payments in the Internal Market. The Commission intended to propose a directive creating this new legal framework in 2005. The complainant's observations In his observations, the complainant expressed the view that the Commission was unable to achieve the improvements and progress for the benefit of citizens that had been promised over a long period of years. The complainant noted that he had drawn the necessary conclusions and changed his telephone company. He further pointed out that he intended to express his dismay at what he perceived to be the Commission's inability to act and the European Parliament's nearly complete lack of powers at the forthcoming referendum on the European Constitution.

THE DECISION 1. Failure to handle infringement complaint properly 1.1 The complainant, a German national, lives in Alsace. He used the French telecommunications company Tele 2 and wished to pay his bills by direct debit from his German bank account. However, Tele 2 refused to provide him with the information necessary to carry out such transactions, i.e., its IBAN (International Bank Account Number) and its BIC (Bank Identifier Code). Considering that the behaviour of Tele 2 constituted an infringement of EU rules on the internal market, the complainant addressed himself to the European Commission. In his complaint to the Ombudsman, the complainant basically alleged that the Commission had failed to handle his complaint against Tele 2 properly. 1.2 In its opinion, the Commission explained that it had written to the complainant on 26 August 2003 but that it had not received any of the subsequent e-mails to which the complainant had referred. The Commission further noted that it had now replied to these e-mails which had been forwarded to it by the Ombudsman. As regards the

674

substance of the case, the Commission submitted that there had been no breach by Tele 2 of Regulation (EC) 2560/2001 of the European Parliament and of the Council of 19 December 2001 on cross-border payments in Euro (OJ 2001 L 344, p. 13). According to the Commission, Tele 2 had informed all clients that the only possible payment instrument was direct debit ("prlvement automatique" or TIP in France). The Commission pointed out that every company could choose the payment instrument that it accepted, except for cash which was legal tender. In its view, nothing in Regulation 2560/2001 obliged a company to accept a specific payment instrument. Regulation 2560/2001 only indicated a principle of non-discrimination between national and cross-border payment instruments. The Commission further explained that Article 5 (4) of the Regulation stipulated that suppliers had to communicate their IBAN and their BIC for "all cross-border invoicing of goods and services in the Community". In the Commission's view, Tele 2 was entitled to refuse to give its international banking coordinates to the complainant, since it was not invoicing cross-border (as the service was rendered in France and invoiced there). The Commission added that at present, direct debit did not exist in the EU on a crossborder basis due to the lack of a pan-European infrastructure and to the lack of a common legal framework. It added that it was currently working on the creation of a single payment area, including a pan-European direct debit scheme. The Commission explained that it intended to propose a directive to that effect in 2005. 1.3 In his observations, the complainant expressed the view that the Commission was unable to achieve the improvements and progress for the benefit of citizens that had been promised over a long period of years. The complainant noted that he had drawn the necessary conclusions and changed his telephone company. He further pointed out that he intended to express his dismay at what he perceived to be the Commission's inability to act and the European Parliament's nearly complete lack of powers at the forthcoming referendum on the European Constitution. 1.4 In the light of the explanations provided by the Commission, the Ombudsman considers that the Commission's conclusion that there was no infringement of Community law by Tele 2 is reasonable. As the Commission has pointed out, direct debit does not appear to exist in the EU on a cross-border basis at present. Given that direct debit is, as the Commission underlines, one of the most popular payment instruments, this state of affairs is certainly very regrettable. The Ombudsman notes, however, that the Commission has announced that it intends to submit a proposal for a directive on the creation of a single payment area, including a pan-European direct debit scheme, this year. 1.5 As regards procedural aspects, it emerges from the documents submitted to the Ombudsman that the complainant had asked the Commission's Representation in Berlin to treat the letter he submitted to the latter in August 2003 as a "complaint against Tele 2". It further emerges that in a note dated 19 August 2003, the Commission's Representation in Berlin forwarded this "complaint" to the Commission's Directorate-General ("DG") Internal Market.

675

1.6 The Ombudsman recalls that in its "Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law" (COM(2002) 141 final, OJ 2002 C 244, p. 5), the Commission adopted certain procedural safeguards as regards the handling of infringement complaints. However, there is nothing to suggest that these safeguards were respected in the present case. The Ombudsman notes that point 3 of the Communication provides that letters criticising the behaviour of private firms do not need to be registered as a complaint (unless it emerges that authorities of Member States are involved). However, point 4 provides that where the Commission decides not to register a letter as a complaint, the author has to be informed accordingly. There is nothing to show that this was done in the present case, given that the Commission's letter of 26 August 2003 simply informed the complainant that the French authorities had been asked for information regarding the behaviour of Tele 2. The Ombudsman considers that it would in any event have been good administrative practice to inform the complainant about the result of these inquiries. However, no such information appears to have been provided before the complainant turned to the Ombudsman in December 2004. 1.7 In these circumstances, the Ombudsman considers that the Commission has failed properly to handle the complaint that the complainant submitted to it in August 2003. This is an instance of maladministration. A critical remark will therefore be made in this respect. 2. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: In its "Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law" (COM(2002) 141 final, OJ 2002 C 244, p. 5), the Commission adopted certain procedural safeguards as regards the handling of infringement complaints. However, there is nothing to suggest that these safeguards were respected in the present case, given that the Commission's letter of 26 August 2003 simply informed the complainant that the French authorities had been asked for information regarding the behaviour of Tele 2. The Ombudsman considers that it would in any event have been good administrative practice to inform the complainant about the result of these inquiries. However, no such information appears to have been provided before the complainant turned to the Ombudsman in December 2004. In these circumstances, the Ombudsman considers that the Commission has failed properly to handle the complaint that the complainant submitted to it in August 2003. This is an instance of maladministration. Given that this aspect of the case only concerns procedural aspects and that the Commission's position as to the substance of the case appears to be reasonable, it is

676

not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS

677

Decision of the European Ombudsman on complaint 116/2005/MHZ against the European Commission

Strasbourg, 20 December 2005

Dear Mr C., On 4 January 2005, you made a complaint to the European Ombudsman against the European Commission. Your complaint concerned the Commissions refusal to give you access to the letter dated 30 March 2004, which the then Portuguese Minister of Finance had sent to the Commission in the framework of the excessive deficit procedure. On 31 January 2005, I forwarded your complaint to the President of the European Commission. On 2 May 2005, the Commission sent its opinion in English and on 23 May 2005 its translation into Portuguese, which I forwarded to you with an invitation to make observations. On 20 June 2005, I received your observations. On 20 July 2005, I wrote to the Permanent Representation of Portugal to the European Union in relation to your complaint. On the same day, I informed you and the Commission of my action. On 19 September 2005, I received a reply from the Permanent Representation of Portugal. On 28 September 2005, I informed the Commission of the Representations reply and asked the Commission to provide me with further information by 15 October 2005. Also on 28 September 2005, I sent you a copy of my letter to the Commission. On 5 December 2005, having received no reply from the Commission to my request for further information, I made a draft recommendation to the Commission. On the same day, I sent you, for information, a copy of the draft recommendation in its original language (English). On 9 December 2005, the Commission sent me a reply dated 7 December 2005 to my letter of 28 September 2005 in which it informed me that it agreed to disclose to you the document in question. It enclosed a copy of the document, which I forwarded to you the same day. On 14 December 2005, you informed me that you were satisfied with the outcome of the case and congratulated the Ombudsman. You also stated that this case is a
678

significant step on the way to increasing the transparency that should govern the actions of the European institutions, in particular those of the Commission. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, who is a Portuguese MEP, the relevant facts are as follows. The complainant made a request to the Commission for access to the text of the letter dated 30 March 2004 that Portugal's then Minister of Finance ("the Minister of Finance") had sent to the Commission. This letter was a reply to the Commission's queries in the framework of an excessive deficit procedure initiated by the Commission against Portugal. On 24 September 2004, the Commission refused to provide access to the requested document on the grounds that its disclosure would undermine the protection of the public interest as regards the financial, monetary or economic policy of the Member State concerned (i.e., Portugal). This exception to public access is contained in Article 4(1)(a), fourth indent, of Regulation 1049/2001. On 11 October 2004, the complainant made a confirmatory application under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(1) ("Regulation 1049/2001") for access to the document. On 6 December 2004, the Commission confirmed its initial refusal of access and informed the complainant that partial access should be refused as well given that all parts of the document are covered by the same exception i.e., Article 4(1)(a), fourth indent, of Regulation 1049/2001(2). The Commission also stated in its reply to the complainant that the disclosure would have adverse repercussions on the financial markets' perception of Portugal's economic situation. On 4 January 2005, the complainant lodged a complaint with the Ombudsman. The complainant argues that the Commissions refusal was unfounded. He considers that a disclosure of the information contained in the letter concerning Portugal's budgetary policy could not shock anyone more than the news published every day in this respect. Furthermore, he takes the view that, if the Commissions interpretation of Article 4(1)(a), fourth indent, of Regulation 1049/2001 were accepted, the actions of the Commission in exercise of the powers conferred on it by the EC Treaty in relation to the protection of economic and monetary union would be excluded from parliamentary control.

679

The complainant alleged that the Commission has interpreted the exception provided in Article 4(1)(a), fourth indent, of Regulation 1049/2001 too broadly. The complainant claimed that he should be granted access to the whole document or at least to parts of it.

THE INQUIRY The opinion of the Commission The opinion of the Commission contains, in summary, the following comments. First, the Commission referred to the background of the case. The complainant, who is an MEP, tabled a written question requesting the Commission to provide him with a copy of a letter sent on 30 March 2004 by the Portuguese Minister of Finance to the former Commissioner Mr Solbes. Mr Alumnia, who had replaced Mr Solbes, replied to the complainants question on 23 September 2004. He stated that the complainants request for access would be handled according to the procedure laid down in Regulation 1049/2001. On 24 September 2004, the Director General for Economic and Financial Affairs replied that the need to protect Portugal's economic and financial policy precluded disclosure of the letter sent by the Minister of Finance. On 11 October 2004, the complainant submitted a confirmatory application. After the second examination of the complainants request, the Secretary General confirmed, on 6 December 2004, that the letter could not be disclosed. Secondly, the Commission put forward the reasons for which it considered that access should be denied. The Commission explained that the excessive deficit procedure laid down in Article 104 of the EC Treaty is politically sensitive and involves delicate discussions between the Commission, the Member States and ECOFIN. This procedure is also likely to be discussed in political circles and financial markets. Therefore, some degree of confidentiality needs to be applied in order to ensure that Member States are in a position to comply with the requirements of the Stability and Growth Pact. The complainant requested access to a letter in which the Minister of Finance informed the Commissioner responsible for economic and financial affairs of the budgetary measures to be adopted in order to generate additional state revenue, which was the objective envisaged by the Portuguese government. The Commission considered that disclosure of this letter would adversely affect the Portuguese governments economic and financial policy because such disclosure could jeopardise the government's achievement of those objectives. Therefore, the Commission denied access on the basis of the exception laid down in Article 4(1)(a), fourth indent of Regulation 1049/2001. Since the Commission was of the opinion that this exception

680

precluded it from disclosing the letter of the Minister of Finance, it did not consult the Portuguese authorities on the complainants application. The Commission took the view therefore that, in any event, pursuant to Article 4(5) of Regulation 1049/2001(3), the Commission would have to consult these authorities before considering the release of the document requested by the complainant. In support of that view, the Commission quoted the judgements of the Court of First Instance in Case T-187/03 Scippacercola v. Commission(4) and also in Case T-168/02 IFAW v. Commission(5). The Commission also denied that it interpreted the relevant exception too broadly. The public disclosure of the information contained in the letter would put at risk the successful implementation of the proposed operations. There was a real risk of jeopardising the Portuguese government's capacity to achieve its objectives. The Commission also stated that it considered the possibility of granting partial access. However, the letter in question was a short document specifically dealing with the envisaged budgetary measures. Moreover, there were no significant parts of that letter to which the relevant exception would not apply. In this context, the Commission added that most documents concerning Portugal and relating to the excessive deficit procedure have been made public through the Commissions website. Furthermore, the Commission pointed out that under the Framework Agreement concluded between the Parliament and the Commission, the European Parliament can obtain access to confidential information held by the Commission in order to exercise its powers. However, the individual members of the European Parliament have no such privileged access to confidential information. Disclosure of a document under Regulation 1049/2001, even at the request of an MEP, puts the document in the public domain. Finally, the Commission stated that the exception regarding the protection of financial, monetary or economic policy is not subject to a public interest test. Nevertheless, the Commission was aware of the public interest in matters relating to the implementation of the Stability and Growth Pact. Therefore, the Commission publishes as much information as possible regarding this subject through pressreleases and its own assessments of the budgetary situation in the Member States. In the present case, the Commission has published its assessment of the budgetary situation in Portugal, which was adopted on 28 April 2004 and which led the Council to decide on the abrogation of the Decision on the existence of an excessive deficit in Portugal. The Commission concluded that it has struck the right balance between the public interest in being informed about the budgetary situation in the Member States and the sensitivity of the excessive deficit procedure. The Commission reiterated in this context that the latter procedure requires a certain degree of confidentiality.

681

The complainant's observations The complainant's observations on the Commission's opinion can be summarised as follows. The complainant stated that the Commission recognised in its opinion that it did not act in accordance with Article 4(5) of Regulation 1049/2001 because it failed to consult the Portuguese authorities. However, the Commissions opinion gave no indication that it would be likely to correct this failure by consulting the Portuguese authorities. The complainant argued that the Commission should do so, as soon as possible. Furthermore, the complainant stated that the Commission, in its opinion to the Ombudsman, kept raising the same arguments as it has already raised in the prior correspondence with the complainant (quoted by him in his complaint to the Ombudsman). The complainant stressed that, for instance, the Commission again stated in its opinion that matters that are central to its political activity under the Treaty should not be accessible to the European Parliament. The complainant also argued that, by using its discretionary power on the basis of general and unaccountable arguments and without any external control the Commission is failing to respect the right of access to documents laid down in Article 42 of the Charter of Fundamental Rights of the European Union. Further inquiries After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsmans request to the Portuguese authorities In accordance with Article 3(3) (6) of the Statute of the European Ombudsman(7), the Ombudsman sent a request for information to the Portuguese authorities via the Permanent Representation of Portugal to the European Union. The Portuguese authorities were asked to inform the Ombudsman whether the y consider that disclosure of the letter in question would adversely affect the Portuguese government's economic and financial policy. The Portuguese authorities' reply The reply from the Permanent Representation of Portugal to the European Union informed the Ombudsman that the Portuguese authorities take the view that, in Portugal's current budgetary situation, the letter dated 30 March 2004, which the Minister of Finance had sent to the Commission in the framework of the excessive deficit procedure, does not contain elements that could affect Portugal's economic and financial policy. The letter in question could therefore be disclosed to the complainant.

682

The Ombudsman's further request to the Commission On 28 September 2005, the Ombudsman sent to the Commission a copy of the Portuguese authorities' reply. He also asked the Commission to inform him whether, in the light of that reply, the Commission was now ready to give a positive response to the complainants application for access to the letter in question. The Commission's reply No reply was received from the Commission before expiry of the deadline (15 October 2005) or during the following six weeks. The draft recommendation On 5 December 2005, the Ombudsman made the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman: The Commission should promptly review its refusal to give the complainant access to the document in question and provide access unless one or more of the exceptions contained in Regulation 1049/2001 applies. The draft recommendation was made on the basis of the following considerations: 1 The complainant, an MEP, asked the Commission for access to the letter dated 30 March 2004, which Portugal's then Minister of Finance ("the Minister of Finance") had sent to the Commission in the framework of the excessive deficit procedure. The Commission refused the complainants confirmatory application for access on the grounds that disclosure of the letter would undermine the protection of the public interest as regards the financial, monetary or economic policy of the Member State concerned (i.e., Portugal). This exception to public access is contained in Article 4(1)(a), fourth indent, of Regulation 1049/2001. The complainant alleges that the Commission has interpreted the exception contained in Article 4(1)(a), fourth indent, of Regulation 1049/2001 too broadly. The complainant claims that he should be granted access to the whole document or at least to parts of it. 2 In its opinion, the Commission argues that the excessive deficit procedure laid down in Article 104 of the EC Treaty is politically sensitive and involves delicate discussions between the Commission, the Member States and ECOFIN. This procedure is also likely to be discussed in political circles and financial markets. Therefore, some degree of confidentiality needs to be applied in order to ensure that Member States are in a position to comply with the requirements of the Stability and Growth Pact.

683

The Commission considered that disclosure of the letter, in which the Minister of Finance informed the Commissioner responsible for economic and financial affairs of the budgetary measures to be adopted in order to generate additional state revenue, which was the objective envisaged by the Portuguese government, would adversely affect the Portuguese governments economic and financial policy because such disclosure could jeopardise the government's achievement of those objectives. Therefore, the Commission denied access on the basis of the exception laid down in Article 4(1)(a), fourth indent of Regulation 1049/2001. Since the Commission was of the opinion that this exception precluded it from disclosing the Minister of Finance's letter, it did not consult the Portuguese authorities on the complainants application. The Commission also took the view that, in any event, pursuant to Article 4(5) of Regulation 1049/2001(8), it would have to consult these authorities before considering the release of the document. 3 The Ombudsman first notes that, despite the Commissions reference in its opinion to Article 4 (5) of Regulation 1049/2001 (A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement), the Commission has provided no evidence that the Portuguese authorities have requested that the document concerned not be disclosed. Furthermore, the Commission has stated that it did not consult the Portuguese authorities because, having itself formed the view that that disclosure of the letter would adversely affect the Portuguese governments economic and financial policy, it was precluded from disclosing the letter. 4 The Ombudsman notes, however, that Article 4(4) of Regulation 1049/2001 provides that, as regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception provided for in paragraph 1 or paragraph 2 of Article 4 of Regulation 1049/2001 is applicable, unless it is clear that the document shall or shall not be disclosed. 5 The Ombudsman finds it difficult to understand how the Commission could consider itself to be better placed than the authorities of a Member State to decide whether disclosure of a document would adversely affect the financial, monetary and economic policy of that Member State. The Ombudsman therefore requested the assistance of the Portuguese authorities, who informed him that, in Portugal's current budgetary situation, the letter in question did not contain elements which, if disclosed, could affect Portugal's economic and financial policy. 6 In the light of the Portuguese authorities' answer, the Ombudsman asked the Commission whether it was now prepared to give a positive response to the complainants application for access to the letter in question. The Commission has failed to reply to the Ombudsman, even six weeks after the expiry of the pertinent deadline. The Ombudsman points out that this failure in itself constitutes a prima facie instance of maladministration.

684

The Commission's reply of 7 December 2005 On 9 December 2005, the Ombudsman received the Commissions reply, dated 7 December 2005, to the request for further information that the Ombudsman had sent to the Commission on 28 September 2005. The Commissions reply may be summarised as follows: First, the Commission apologised for the delay in replying to the Ombudsman's request for further information. Then, the Commission recalled the factual background of the case. The Commission stated that on 6 December 2004, the Commission confirmed its decision not to grant the complainant access to the letter sent on 30 March 2004 by the outgoing Minister of Finance of Portugal to former Commissioner Solbes. The Commissions' refusal was based on the exception laid down in Article 4(1)(a), fourth indent, of Regulation 1049/2001. The Commission considered that disclosure of the requested documents would undermine the protection of the financial and economic policy of the Portuguese authorities. The Commission added that its refusal to grant access to the document in question has to be seen in the context of an important Council decision on a Member State's economic policy i.e., the abrogation of the excessive deficit procedure for Portugal (according to Article 104(12) of the EC Treaty). At that time, the Commission did not consult the Portuguese authorities on the possibility to disclose the letter in question, since it considered that the exception provided in Article 4(1)(a), fourth indent, of Regulation 1049/2001 was applicable. According to the Regulation and to the Commission's implementing rules (Decision 2001/937 of 5 December 2001) consultation of a third party author takes place when it is not clear whether or not a document should be disclosed. On 20 July 2005, the Ombudsman approached the Portuguese authorities on their stance regarding the disclosure of the letter to the complainant. In its reply to the Ombudsman and in its letter sent to the Commissioner in charge of Economic and Monetary Affairs, the new Portuguese government explained that, in the present context of the budgetary policy, disclosure of the said letter would not undermine the protection of the Portuguese economic and financial policy. On 28 September 2005, the Ombudsman asked the Commission, whether, in the light of the information provided by the Portuguese authorities, it was now ready to give a positive response to the complainant's request for access to the letter in question, made under Regulation 1049/2001. The Commission has therefore reviewed the complainant's request taking into account the position of the Portuguese government and the time that has elapsed since the date of its decision to deny access.

685

The Commission considers that that document's content is no longer of a sensitive nature and this is confirmed by the Portuguese authorities' letters to the Ombudsman and to Commissioner Alumnia. The Commission concluded that it agrees to disclose the document in question and attached a copy of the document to its reply. The complainant's observations On 14 December 2005, the complainant informed the Ombudsman that he was satisfied with the outcome of the case.

THE DECISION 1. Refusal to grant access to a document 1.1 On 5 December 2005, the Ombudsman made a draft recommendation in which he suggested that the Commission should promptly review its refusal to give the complainant access to the document in question and provide access unless one or more of the exceptions contained in Regulation 1049/2001 applies. 1.2 In a reply dated 7 December 2005 to the Ombudsmans further inquiries of 28 September 2005, the Commission concluded that it agreed to disclose to the complainant the document in question and attached a copy of that document to its reply. Furthermore, the Commission apologised for the delay in replying to the Ombudsman's request for further information. 1.3 The complainant subsequently informed the Ombudsman that he was satisfied with the outcome of the case. 1.4 The Ombudsman takes the view that the Commissions reply of 7 December 2005 to his request for further information constitutes, in substance, acceptance of his subsequent draft recommendation and includes satisfactory measures for its implementation. No detailed opinion from the Commission on the draft recommendation is therefore necessary. 2. Conclusion 2.1 The Ombudsman takes the view that the Commissions reply of 7 December 2005 to his request for further information constitutes, in substance, acceptance of his subsequent draft recommendation and includes satisfactory measures for its implementation.

686

2.2 The Ombudsman therefore closes the case. The President of the Commission will be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

OJ 2001 L 145, p. 43.

(2)

The institutions shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards: () the financial, monetary or economic policy of the Community or a Member State;

(3)

A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

Case T-187/03 Scippacercola v. Commission, judgment of 17 March 2005, paragraphs 54 and 55. Case T-168/02 IFAW v. Commission, judgment of 30 November 2004, paragraphs 57 and 58.
(6) (5)

(4)

Article 3(3) provides: The Member States' authorities shall be obliged to provide the Ombudsman, whenever he may so request, via the Permanent Representations of the Member States to the European Communities, with any information that may help to clarify instances of maladministration by Community institutions or bodies unless such information is covered by laws or regulations on secrecy or by provisions preventing its being communicated. Nonetheless, in the latter case, the Member State concerned may allow the Ombudsman to have this information provided that he undertakes not to divulge it. Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's Duties, OJ 1994 L 113, p. 15. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

(7)

(8)

687

Decision of the European Ombudsman on complaint 501/2005/IP against the European Commission

Strasbourg, 21 September 2005

Dear Mr R., On 9 February 2005, you made a complaint to the European Ombudsman, acting on behalf of the Association "Vittorio Bachelet". Your complaint concerned the nonpayment by the Commission of the travel expenses incurred by the Association on the occasion of the visit to the Commission's premises in Brussels, on 1 December 2003. On 11 February and 8 March 2005, you sent me further documents to support your complaint. On 11 March 2005, I forwarded the complaint to the President of the European Commission. On 5 July 2005, the Commission informed me that its opinion on your case would be delayed. The institution finally sent its opinion on 5 August 2005. However, in the meantime, first in a message dated 26 June 2005, to which my services replied on 18 July 2005, and subsequently during a telephone conversation with my office on 2 August 2005, you explained that you considered the matter of your complaint to have been settled by the Commission. I am writing to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, who complained on behalf of the Italian cultural association "Vittorio Bachelet" (the "Association"), the relevant facts were as follows: On 1 December 2003, the Association paid a visit to the European Commission in Brussels, as part of the activity in the framework of a course on European Culture. The participants in this trip were a group of students chosen among almost 200 classmates who had attended the course. On the basis of the information given by the Commission's Representation in Rome, the participants should have paid the expenses for their own accommodation. However, the travel expenses were to be paid by the Commission. Following the suggestion of the Commission's Representation in Rome, which informed the complainant that the financing of travel expenses could not exceed EUR 200 per person, it had been decided to go to Brussels (from Bari, Italy) by coach.
688

On the basis of the instructions received from Ms C., official at the Commission's Representation in Rome, the Association sent the invoice of the trip, received from the travel agency, to the Commission in Brussels. After several weeks, the Association contacted the Commission's Representation and asked why the payment had not yet been made. According to the complainant, the Association first received holding replies and was then informed, by letter of 14 February 2004, that "[a]t the moment of the written request made by the Association for the organisation of a visit, the funds were not available. They became available afterwards. Due to unfortunate circumstances, the financial commitment concerning your travel expenses could not materialise. We apologise for the inconvenience caused []" (translation made by the Ombudsman's services). As a consequence of the Commission's behaviour, the President of the Association had to pay the travel expenses, amounting to EUR 5 500. In his complaint, the complainant claimed that the Commission should take steps in order to solve the problem and to pay to the Association as promised the travel expenses, which amounted to EUR 5 500.

THE INQUIRY The European Commission's opinion In its opinion, the Commission stated that due to unfortunate circumstances, its Representation in Italy had not made the necessary arrangements, i.e., had not prepared in time a commitment for the sum (EUR 5 500) claimed by the complainant. As a result, the Commission had been unable, as verbally promised, to pay the relevant sum, in reimbursement of the travel expenses related to the Association's visit to the Commission's premises. The Commission further stated that with a view to maintaining its good reputation and since its Representation in Italy had indicated that the institution would pay the travel expenses, an amount of EUR 5 500 had been allocated to reimburse the relevant travel expenses. The payment had been introduced in the SINCOM system on 22 June 2005 and the money had been paid accordingly to the Association through the complainant. The latter had been informed on 21 July 2005 by the Commission's Representation in Italy that the relevant payment had been made. The complainant's message of 26 June and his telephone call of 2 August 2005 On 26 June 2005, the complainant sent an e-mail by which he informed the Ombudsman that a few days earlier the Commission had asked him to provide the competent services with information in view of the payment of the requested sum. The complainant thanked the Ombudsman for the inquiry that he had carried out, which had resulted in a positive conclusion of the case.

689

Furthermore, and again before the Commission's opinion had been forwarded to the Ombudsman, the complainant, in a telephone conversation with the Ombudsman's services on 2 August 2005, explained that he considered his case to have been settled by the European Commission. He further added that the fact that the Commission had still not sent its opinion to the Ombudsman was irrelevant in view of the positive outcome of the case and of the fact that the relevant amount had finally been paid.

THE DECISION 1. Reimbursement of travel expenses 1.1 The Italian cultural Association "Vittorio Bachelet", on behalf of which the complainant complained to the Ombudsman, paid a visit to the Commission in Brussels on 1 December 2003. The Commission's Representation in Rome informed the Association that the Commission would reimburse the travel expenses. However, on 14 February 2005 the Representation informed the complainant that, due to unfortunate circumstances, the financial commitment concerning the relevant travel expenses could not materialise. In his complaint, the complainant claimed that the Commission should take steps in order to solve the problem and to pay to the Association as promised the travel expenses, which amounted to EUR 5 500. 1.2 In its opinion which was received by the Ombudsman on 5 August 2005, the Commission stated that, due to unfortunate circumstances, its Representation in Italy had not made the necessary arrangement, i.e., had not prepared in time a commitment for the sum (EUR 5 500) claimed by the complainant. As a result, the Commission had been unable, as verbally promised, to pay the relevant sum, in reimbursement of the travel expenses related to the Association's visit to the Commission's premises. The Commission further stated that with a view to maintaining its good reputation and since its Representation in Italy had indicated that the institution would pay the travel expenses, an amount of EUR 5 500 had been allocated to reimburse the relevant travel expenses. The payment had been introduced in the SINCOM system on 22 June 2005 and the money had been paid accordingly to the Association through the complainant. The latter had been informed on 21 July 2005 by the Commission's Representation in Italy that the relevant payment had been made. 1.3 The Ombudsman notes that, in a message sent on 26 June 2005 and in a subsequent telephone conversation with his services on 2 August 2005, the complainant explained that he considered his case to have been settled by the European Commission since the relevant amount had been finally paid. The complainant thanked the EO for the inquiry that had been carried out and had resulted in a positive conclusion of the case. He further added that the fact that the

690

Commission had still not sent its opinion to the Ombudsman was irrelevant in view of the positive outcome of the case. 1.4 In view of the above, the Ombudsman considers that the Commission appears to have taken adequate steps to settle the matter and has thereby satisfied the complainant. 2. Conclusion It appears from the Commissions comments and the complainant's observations that the Commission has taken steps to settle the matter and has thereby satisfied the complainant. The Ombudsman therefore closes the case. A copy of the Commission's opinion received on 5 August 2005 is enclosed with this decision for the complainant's information. The President of the Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS

691

Decision of the European Ombudsman on complaint 1266/2005/MF against the European Commission

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 15 November 2005

Dear Mr X., On 24 March 2005, you made a complaint to the European Ombudsman against the European Commission concerning the payment of evaluation works carried out by evaluators working for Directorate General Research of the European Commission. On 26 April 2005, you sent me further documents related to your complaint. On 29 April 2005, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 9 August 2005. On 9 September 2005, I forwarded it to you with an invitation to make observations, which you sent on 16 September 2005. In view of your observations, in which you pointed out that you had accepted the "Commission's proposal", the Ombudsman's services contacted you by telephone on 27 October 2005 in order to ascertain whether you were satisfied with the Commission's reply. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT According to the complainant, the relevant facts are as follows: The complainant works as an independent expert evaluating calls for proposals published under the 6th Framework Programme, in Directorate General Research of the European Commission ("DG Research"). According to the complainant, independent experts working as evaluators had to pay for their travel and hotel costs in advance, whereas evaluators from Eastern countries benefited from pre-paid tickets. The complainant argued that Article 106 of Regulation (EC) No 2342/2002(1) provided that sums shall be paid within no more than 45 calendar days from the date on which the payment request was made and that statutory interest shall be paid in case of late payment.

692

No clarification on the calculation of payments was given to the complainant. In his view, evaluators received an amount of money which was lower than the expenses incurred. As regards his own situation, the complainant carried out four evaluation assignments during the years 2003 and 2004. He alleged that he had to wait for 7 months before being paid for an evaluation carried out in 2004 (EUR 3 000 in total) and for which he paid EUR 1 500 in advance. In early October 2004, he carried out further evaluation work. He alleged that he had still not received any payment for this evaluation work at the date of his complaint to the Ombudsman. The complainant contacted DG Research on several occasions. On 28 January 2005, the Commission replied that the payment would be made to him in mid-March 2005. On 31 January 2005, the complainant sent an e-mail to Directorate General Enterprise of the European Commission ("DG Enterprise"). On 8 February 2005, the Commission replied that an internal note was being prepared by the Director-General of DG Enterprise to be sent to Directorate General Budget of the European Commission ("DG Budget") in order that it could take corrective action as soon as possible. The complainant wrote a further e-mail to DG Enterprise on 16 March 2005. On 17 March 2005, DG Enterprise replied that the procedure for payment was pending and that it could take some time. On 17 March 2005, the complainant wrote a further e-mail to DG Research. He had not received any reply by the date of his complaint to the Ombudsman. In his complaint to the Ombudsman of 24 March 2005, the complainant made the following allegations: 1. The Commission had failed to pay him in due time for the evaluation assignments carried out in 2004. 2. The Commission had failed to give him clarification on the calculation of payments. 3. The Commission had failed to pay interest on account of late payment. The complainant submitted the following claims: 1. He should, by 31 March 2005 at the latest, be paid for his evaluation assignment (EUR 679) carried out in early October 2004. 2. He should be paid interest on account of late payment as regards the payment received in 2004 and the pending payment. 3. He should be given clarification on the calculation of payments since 2004.

693

4. All evaluators who are waiting more than 45 days for their payment should be paid before 31 March 2005, including interest on account of late payment. 5. He should be given pre-paid tickets for future evaluation assignments. 6. All evaluators should be given pre-paid tickets for future evaluation assignments. 7. The hotel rooms relating to future evaluation assignments should be booked and paid for in advance by the Commission. 8. DG Budget of the Commission should take measures to solve the problem as soon as possible.

THE INQUIRY The Commission's opinion The opinion of the European Commission on the complaint was, in summary, as follows: Concerning the alleged failure to pay the complainant in due time for the evaluation assignments he carried out in 2004, the complainant had provided supporting documents on 7 September 2004 and made a request for reimbursement of expenses on 30 December 2004, making it impossible to still make a payment in 2004. As the payment had to be made in 2005 on the basis of a financial commitment made in 2004, it was not possible to make the payment before early February 2005. Due to a large number of reimbursements that the Commission had to deal with during this period, late payments had occurred for some evaluation assignments. A payment of EUR 675 was made to the complainant on 15 April 2005. Concerning the clarification on the calculation of payments, the complainant was given details of the amounts paid for the working days, the working days outside of Brussels, the daily allowances and the travel costs for each of the evaluation assignments he had carried out in 2003 and in 2004. The Commission proposed to pay the complainant an amount of EUR 49.15 corresponding to the interest on account of the delay in the outstanding payment. In May 2005, the Commission had taken measures, which were summarised in an action plan, to accelerate payments to experts. As a result of these measures, the Commission had reduced significantly the time taken to pay experts participating in evaluation works.

694

The complainant's observations In his reply dated 16 September 2005, the complainant stated that he considered that the Commission had improved its procedures for reimbursement. He informed the Ombudsman that he agreed with the Commission's proposal to pay him interest for an amount of EUR 49.15. The complainant further pointed out that he had been paid within only 30 days for his latest contract. On 27 October 2005, the Ombudsman's services contacted the complainant by telephone in order to ascertain whether he was satisfied with the Commission's reply. The complainant informed the Ombudsman that he considered the complaint to have been settled and thanked the Ombudsman for his intervention.

THE DECISION 1. The scope of the Ombudsman's inquiry 1.1 In his complaint to the European Ombudsman, the complainant made several claims numbered 1 to 8 above. 1.2 In his letter dated 29 April 2004, the Ombudsman informed the complainant that, since no prior administrative approaches appeared to have been made to the European Commission with regard to claims numbered 4 to 8, these aspects of the complaint were inadmissible on the basis of Article 2(4) of the European Ombudsman's Statute. 1.3 The present decision therefore only deals with the complainant's allegations and his claims numbered 1 to 3. 2. The complainant's allegations and claims 2.1 The complainant alleged that the European Commission had failed to pay him in due time for his evaluation assignments carried out in 2004. He further alleged that the Commission had failed to give him clarification on the calculation of payments. The complainant finally alleged that the Commission had failed to pay interest on account of late payment. The complainant claimed that he should, by 31 March 2005 at the latest, be paid for his evaluation assignment (EUR 679) carried out in early October 2004. He further claimed that he should be paid interest on account of late payment as regards the payment received in 2004 and the pending payment. The complainant finally claimed that he should be given clarification on the calculation of payments since 2004. 2.2 In its opinion, the Commission explained the reasons for the delays in the payments and stated that a payment of EUR 675 had been made to the complainant on 15 April 2005. The complainant had been given details of the amounts paid for the

695

working days, the working days outside Brussels, the daily allowances and the travel costs for each of the evaluation works that he had carried out in 2003 and 2004. The Commission proposed to pay the complainant an amount of EUR 49.15 corresponding to the interest due on account of late payment. In May 2005, the Commission had taken measures, which were summarised in an action plan, to accelerate payments to experts. As a result of these measures, the Commission had reduced significantly the time taken to pay experts participating in evaluation assignments. 2.3 In his reply dated 16 September 2005, the complainant stated that he considered that the Commission had improved its procedures for reimbursement and that he agreed with the Commission's proposal to pay him interest for an amount of EUR 49.15. He further pointed out that he had been paid within only 30 days for his latest contract. In a telephone conversation of 27 October 2005 with the Ombudsman's Office, the complainant stated that he considered the complaint to have been settled and thanked the Ombudsman for his intervention. 2.4 On the basis of the Commission's opinion and the complainant's observations, and in particular his statement in his telephone conversation of 27 October 2005 with the Ombudsman's services, the Ombudsman concludes that the Commission has taken steps to settle the matter to the complainant's satisfaction. 3. Conclusion It appears from the Commissions opinion and the complainant's observations that the Commission has taken steps to settle the matter and has thereby satisfied the complainant. The Ombudsman therefore closes the case. The President of the European Commission will also be informed of this decision. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to general budget of the European Communities (OJ L 357, 31.12.2002, p.1).

696

Decision of the European Ombudsman on complaint 1875/2005/GG against the Council of the European Union

THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 9 November 2005

Dear Mr X., On 17 May 2005, you made a complaint to the European Ombudsman against the Council of the European Union. This complaint concerned the Council's handling of a request for access to documents that you had made on 10 March 2005 and its handling of your confirmatory application of 24 March 2005. On 26 May 2005, I forwarded the complaint to the Secretary General of the Council of the European Union. The Council sent its opinion on 26 July 2005. I forwarded it to you on 29 August 2005 with an invitation to make observations, if you so wished, by 30 September 2005 at the latest. No observations were received from you by that date. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT On 10 March 2005, the complainant wrote to the Council of the European Union in order to ask for access to "any documents held by the Council which relate to the negotiation and signature of the EU SOFA, OJ [2003] C 321, p. 6, including documents relating to the organisation of the negotiations", as well as to any documents relating to the implementation of Articles 18(2)(b) and 19(4) of the Agreement. The text referred to by the complainant is the Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17 (2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA). In its reply of 21 March 2005, the Council stated that there were no documents relating to the implementation of Articles 18(2)(b) and 19(4) of the Agreement. As
697

regards the request for access to documents relating to the negotiation and signature of the Agreement, the Council pointed out that two kinds of preparatory documents existed: (a) a number of documents already available on the Council's website as part of the Council's register of documents; and (b) SN documents 4438/01, 4438/1/01 REV 1, 4438/4/01 REV 4 and 4438/5/01 REV 5. As regards the second group of documents, the Council granted only partial access, withholding those parts of the documents which contained legal advice. In his confirmatory application of 24 March 2005, the complainant did not contest the Council's decision to grant only partial access to the above-mentioned documents. He submitted, however, that in view of the Agreement's scope and of the fact that the drafting process had taken over two years to complete, it was to be presumed that the Council held more than just those four documents. The complainant added that the very numbering of these documents suggested that other relevant documents existed. In its reply of 11 May 2005, the Council declared that, "following a thorough examination of this confirmatory application in the light of the applicant's arguments and following the result of new internal consultations", no further documents of relevance to the application had been identified. As to the gap in the numbering sequence, the Council stated that SN documents 4438/2/01 REV 2 and 4438/3/01 REV 3 "were declared void and annulled during production". In his complaint to the Ombudsman, the complainant maintained his view that the Council's position that there were only four relevant documents was manifestly unreasonable. The complainant pointed out that a report prepared by the House of Commons European Scrutiny Committee (28th Report, HC 63-xxviii, 2 July 2003, p. 38) made it clear that the Agreement had gone through at least nine revisions. He added that, following a separate request submitted under the freedom of information legislation of one EU Member State, he had been granted access to Council document SN 4438/7/01 REV 7 of 18 March 2003. The complainant alleged (a) that by failing either to grant total or partial access to all the documents requested, or to give reasons for refusing access to these documents, the Council had not fully complied with its obligations under Regulation 1049/2001; and (b) that in failing to do so, despite having had its attention drawn to the fact that additional documents had to exist, the Council had acted in bad faith and in direct contravention of the right secured by the Regulation. In his application of 10 March 2005, the complainant also asked for a full and complete list of all those documents to which the Council might decide to refuse access, including 'sensitive documents' within the meaning of Article 9 of Regulation 1049/2001. In its reply, the Council did not address this issue. In his confirmatory application, the complainant therefore repeated his request. In its reply of 11 May 2005, the Council submitted that, in conformity with Article 9 of the Regulation, the institution was neither obliged to divulge any detail concerning

698

a sensitive document nor to release it to the public, unless its originator decided otherwise. According to the Council, the only obligation for the institution in this context was to indicate at the end of each calendar year the total number of documents classified as "Confidential", "Secret" and "Top Secret" during the year, in conformity with Article 17 (1) of Regulation 1049/2001. In his complaint to the Ombudsman, the complainant submitted that the Council's position was not only wrong but also evaded the arguments that he had submitted. In the complainant's view, Article 9 (4) of Regulation 1049/2001 unambiguously established that the Council was bound to give reasons for refusing to grant access to sensitive documents, although it had to do so in a manner which did not harm the interests protected in Article 4. The complainant submitted that neither Article 9 (3) nor Article 9 (4) made the obligation to state reasons dependent on the prior consent of the originator of the sensitive document. He added that the Council was not entitled to withhold all details relating to a sensitive document, including, for example, information on whether it existed or not. The complainant alleged (a) that the Council had failed to consider whether it had to give total or partial access to any sensitive documents, (b) that the Council had failed to give reasons why it had decided to deny access to any sensitive documents and (c) that in not addressing the specific arguments submitted to it, the Council had acted in bad faith and had failed to give proper consideration to the initial request and the confirmatory application.

THE INQUIRY The Council's opinion In its opinion, the Council made the following comments: Existing revisions of document SN 4438/01 In the light of the arguments raised by the complainant and taking particularly into account the evidence provided with respect to the revised versions of document SN 4438/01, the Council had thoroughly re-examined the issue and launched new consultations within the relevant departments of its Secretariat-General. Under the current rules, all texts submitted to the Council or to one of its preparatory bodies which

are to serve as a basis for deliberations (for instance, notes from the Presidency or a delegation containing drafts or proposals for a compromise on a Council act, or cover notes from the General Secretariat containing drafts on which the Council or one of its preparatory bodies is called upon to express a position); or

699

influence the decision-making process (for instance, contributions from a delegation to discussions on a draft referred to the Council); or reflect the progress made on a given subject (for instance, outcomes of proceedings and summary records of Council preparatory bodies)

must be distributed as 'ST' documents. Consequently, they are automatically tracked in the Council's document production system and (unless they are not registered in accordance with Article 9 (3) of Regulation 1049/2001) will be listed automatically on the Council's Register. Under the current rules, 'SN' documents may thus no longer be used for such purposes. Such documents are reserved exclusively for internal use within the General Secretariat for administrative purposes, such as translation. They are not to be distributed to members of the Council or to members of its preparatory bodies. However, this system was not in force at the time when the different versions of document SN 4438/01 had been produced. In 2001, it was still possible to produce 'SN' documents for distribution to delegations. Such 'SN' documents were distributed by the department which authored them rather than by the centralised document management department. Following intensive research, the Council could now confirm that indeed ten revisions of the document concerned had been produced, including REV 2, REV 3 and REV 6 to REV 10. These versions were not loaded onto the automated circuit which enables all Council documents to be registered and saved in the electronic archive of the institution. Therefore, these revised versions were kept in the department in charge of the matter but, as was mentioned in the reply to the confirmatory application, in the absence of evidence that such revisions had been electronically recorded and validated, they were considered void. The Council had now discovered that, contrary to initial evidence, versions REV 2, REV 3 and REV 6 to REV 10 had been distributed within Council's preparatory bodies. The Council apologised to the complainant for this clerical error. Access was granted to the revised versions REV 6 to REV 10. Revised versions REV 2 and REV 3 could not be fully released, since certain parts of them contained legal advice covered by Article 4 (2) of Regulation 1049/2001. As there was no evidence of an overriding public interest in disclosure, the Council considered that the protection of the internal legal advice outweighed the public interest in disclosure of the entire documents and that partial access was a reasonable compromise(1).

700

Allegedly existing sensitive documents To begin with, the Council confirmed that no relevant sensitive documents existed. The Council pointed out that it was clear from the case-law that, where an institution asserted that a particular document to which access had been demanded did not exist, there was a presumption that it did not(2). Moreover, the Council would like to put on record that it did not agree with the reasoning provided by the complainant. According to the case-law of the Court of Justice, Article 9 (3) of Regulation 1049/2001 meant that sensitive documents "are covered by a derogation the purpose of which is clearly to guarantee the secrecy of their content and even of their existence"(3). The complainant's interpretation of Article 9 (4) was similarly mistaken. This provision did not in any way require a Member State(4) to acknowledge the existence of sensitive documents, let alone list them when their authors chose not to register them. It merely applied a principle from the Court of First Instance's case-law according to which it might be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and, thereby, depriving the exception of its very purpose(5). The complainant's observations The Council's opinion was forwarded to the complainant together with an invitation to present observations by 30 September 2005. No observations were received from the complainant by that date.

THE DECISION 1. Alleged failure to grant access to documents 1.1 On 10 March 2005, the complainant wrote to the Council of the European Union in order to ask for access to "any documents held by the Council which relate to the negotiation and signature of the EU SOFA, OJ [2003] C 321, p. 6, including documents relating to the organisation of the negotiations", as well as to any documents relating to the implementation of Articles 18(2)(b) and 19(4) of the Agreement, under Regulation (EC) No 1049/2001(6). The text referred to by the complainant is the Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17 (2) of the EU Treaty, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA).

701

In its reply of 21 March 2005, the Council stated that there were no documents relating to the implementation of Articles 18(2)(b) and 19(4) of the Agreement. As regards the request for access to documents relating to the negotiation and signature of the Agreement, the Council pointed out that two kinds of preparatory documents existed: (a) a number of documents already available on the Council's website as part of the Council's register of documents; and (b) SN documents 4438/01, 4438/1/01 REV 1, 4438/4/01 REV 4 and 4438/5/01 REV 5. As regards the second group of documents, the Council granted only partial access, withholding those parts of the documents which contained legal advice. In his confirmatory application, the complainant did not contest the Council's decision to grant only partial access to the above-mentioned documents. He submitted, however, that in view of the Agreement's scope and of the fact that the drafting process had taken over two years to complete, it was to be presumed that the Council held more than just those four documents. The complainant added that the very numbering of these documents suggested that other relevant documents existed. In its reply of 11 May 2005, the Council declared that, "following a thorough examination of this confirmatory application in the light of the applicant's arguments and following the result of new internal consultations", no further documents of relevance to the application had been identified. As to the gap in the numbering sequence, the Council stated that SN documents 4438/2/01 REV 2 and 4438/3/01 REV 3 "were declared void and annulled during production". 1.2 In his complaint to the Ombudsman, the complainant maintained his view that the Council's position that there were only four relevant documents was manifestly unreasonable. The complainant pointed out that a report prepared by the House of Commons European Scrutiny Committee (28th Report, HC 63-xxviii, 2 July 2003, p. 38) made it clear that the Agreement had gone through at least nine revisions. He added that, following a separate request submitted under the freedom of information legislation of one EU Member State, he had been granted access to Council document SN 4438/7/01 REV 7 of 18 March 2003. The complainant alleged (a) that by failing either to grant total or partial access to all the documents requested, or to give reasons for refusing access to these documents, the Council had not fully complied with its obligations under Regulation 1049/2001; and (b) that in failing to do so, despite having had its attention drawn to the fact that additional documents had to exist, the Council had acted in bad faith and in direct contravention of the right secured by the Regulation. 1.3 In its opinion, the Council pointed out that, in the light of the arguments raised by the complainant and taking particularly into account the evidence provided with respect to the revised versions of document SN 4438/01, it had thoroughly reexamined the issue and launched new consultations within the relevant departments of its Secretariat-General. Following intensive research, the Council could now confirm that indeed ten revisions of the document concerned had been produced, including

702

REV 2, REV 3 and REV 6 to REV 10. The Council explained that these versions had not been loaded onto the automated circuit which enabled all Council documents to be registered and saved in the electronic archive of the institution. Instead, these revised versions had been kept in the department in charge of the matter but, as was mentioned in the reply to the confirmatory application, in the absence of evidence that such revisions had been electronically recorded and validated, they had been considered void. The Council noted that in 2001, when the different versions of document SN 4438/01 had been produced, it was still possible to produce 'SN' documents for distribution to delegations. It stressed, however, that the rules had since changed and that such documents would now have to be distributed as 'ST' documents that would (apart from those cases in which they are not registered in accordance with Article 9 (3) of Regulation 1049/2001) be listed automatically on the Council's Register. The Council apologised to the complainant for this clerical error. It added that access was granted to the revised versions REV 6 to REV 10 and that partial access was granted to the revised versions REV 2 and REV 3, since certain parts of these latter documents contained legal advice covered by Article 4 (2) of Regulation 1049/2001. The Council provided copies of the documents that were disclosed to the Ombudsman. 1.4 No observations were received from the complainant. 1.5 The Ombudsman takes the view that it is appropriate to distinguish between substance and procedure as regards the way in which the Council dealt with the complainant's request for access to documents. 1.6 As regards the substance of the matter, the Ombudsman notes that, after the complainant had made his request for access to documents, the Council disclosed document SN 4438/01 and the revised versions REV 1, REV 4 and REV 5 to him. In its opinion on the present complaint, the Council acknowledged that there had been ten revisions of document SN 4438/01 and it made revised versions REV 6, REV 7, REV 8, REV 9 and REV 10 and parts of revised versions REV 2 and REV 3 available to the complainant. The Ombudsman notes that the complainant did not dispute the Council's implicit claim that these were all the documents that were available or challenge the Council's view that only partial access could be granted to the revised versions REV 2 and REV 3, since they contained legal advice covered by Article 4 (2) of Regulation 1049/2001. In these circumstances, the Ombudsman considers that there are no grounds for further inquiries as regards the substance of this allegation. 1.7 As regards procedural aspects, principles of good administrative behaviour require that requests for access to documents made under Regulation 1049/2001 be dealt with properly and carefully. In the present case, the Ombudsman notes that, in its reply to the complainant's confirmatory application, the Council stated that "following a thorough examination of this confirmatory application in the light of the applicant's arguments and following the result of new internal consultations", no further

703

documents of relevance to the application had been identified. However, in its opinion, the Council stated that the revised versions REV 2, REV 3 and REV 6 to REV 10 were kept "in the department in charge of the matter". It should further be noted that the complainant has explicitly argued, in his confirmatory application, that there had to be more than the few documents that the Council had disclosed in reply to his initial request for access. The Ombudsman therefore fails to understand why these documents were not identified when the complainant's request for access was dealt with or, at the very least, when the Council examined the confirmatory application. The only explanation that the Council has offered is that these revised versions had been considered void in the absence of evidence that they had been electronically recorded and validated. However, the Council has not explained why a document of the type concerned should be considered valid only if it has been electronically recorded and validated. The Ombudsman further notes that, in its reply to the complainant's confirmatory application, the Council stated that the revised versions REV 2 and REV 3 "were declared void and annulled during production" In the Ombudsman's view, this statement was misleading since it created the (incorrect) impression that the documents concerned had never been distributed. In its opinion, the Council stated that it had discovered that, "contrary to the initial evidence", the revised versions REV 2, REV 3 and REV 6 to REV 10 had been distributed within the Council's preparatory bodies. However, the cover sheets of all the documents concerned already make it clear that these documents were meant to be distributed to the parties concerned and that they had been drawn up as a result of certain meetings. The Ombudsman therefore fails to understand how the "department in charge of the matter" could have assumed that these documents had not been distributed and had even been declared void. In view of the above, the Ombudsman takes the view that the Council's failure to deal with the complainant's request for access to documents properly and carefully constituted maladministration. 1.8 In its opinion, the Council has apologised to the complainant "for the clerical error" that in its view had occurred. The Ombudsman considers that the maladministration that he has identified in the present case is more serious than that, even though there is no evidence to support the complainant's view that the Council has acted in bad faith. However, the Ombudsman also notes the Council's explanations that its internal rules have changed since the documents concerned by the complainant's request for access were drafted. The Ombudsman understands the Council's position as meaning that problems of the sort identified in the present case would no longer occur under the new rules. In view of these circumstances, the Ombudsman considers that making a critical remark is the most appropriate way of dealing with the maladministration that has occurred and that no further action is required on his part.

704

2. Alleged failure to grant access to sensitive documents 2.1 In its application of 10 March 2005, the complainant had also asked for a full and complete list of all those documents to which the Council might decide to refuse access, including 'sensitive documents' within the meaning of Article 9 of Regulation 1049/2001. In its reply to the complainant's confirmatory application, the Council submitted that, in conformity with Article 9 of the Regulation, the institution was neither obliged to divulge any detail concerning a sensitive document nor to release it to the public, unless its originator decided otherwise. According to the Council, the only obligation for the institution in this context was to indicate at the end of each calendar year the total number of documents classified as "Confidential", "Secret" and "Top Secret" during the year, in conformity with Article 17 (1) of Regulation 1049/2001. 2.2 In his complaint to the Ombudsman, the complainant submitted that the Council's position was not only wrong but also evaded the arguments that he had submitted. In the complainant's view, Article 9 (4) of Regulation 1049/2001 unambiguously established that the Council was bound to give reasons for refusing to grant access to sensitive documents, although it had to do so in a manner which did not harm the interests protected in Article 4. The complainant submitted that neither Article 9 (3) nor Article 9 (4) made the obligation to state reasons dependent on the prior consent of the originator of the sensitive document. He added that the Council was not entitled to withhold all details relating to a sensitive document, including for example information on whether it existed or not. The complainant alleged (a) that the Council had failed to consider whether it had to give total or partial access to any sensitive documents; (b) that the Council had failed to give reasons why it had decided to deny access to any sensitive documents; and (c) that, in not addressing the specific arguments submitted to it, the Council had acted in bad faith and had failed to give proper consideration to the initial request and the confirmatory application. 2.3 In its opinion, the Council stressed that no relevant sensitive documents existed. The Council added that it did not agree with the reasoning provided by the complainant. 2.4 As the Council has correctly pointed out, it follows from the case-law of the Court of First Instance that "in accordance with the presumption of legality attaching to Community acts, where the institution concerned asserts that a particular document to which access has been sought does not exist, there is a presumption that it does not"(7). In the present case, the complainant has not submitted any evidence to rebut this presumption. In these circumstances, the Ombudsman considers that there are no grounds for further inquiries into this aspect of the case. 2.5 However, a further remark will be made as regards the fact that it was only in its opinion that the Council stated that there were no sensitive documents.

705

3. Conclusion On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark: Principles of good administrative behaviour require that requests for access to documents be dealt with properly and carefully. In the present case, the complainant explicitly argued in his confirmatory application, that there had to be more than the few documents that the Council had disclosed in response to his initial request. The Councils reply stated that "following a thorough examination of this confirmatory application in the light of the applicant's arguments and following the result of new internal consultations" no further documents of relevance to the application had been identified. However, in its opinion to the Ombudsman, the Council stated that the revised versions REV 2, REV 3 and REV 6 to REV 10 were kept "in the department in charge of the matter". The only explanation that the Council has offered as to why the documents were not identified earlier is that they had been considered void in the absence of evidence that they had been electronically recorded and validated. However, the Council has not explained why a document of the type concerned should be considered valid only if it has been electronically recorded and validated. Furthermore, the Councils reply to the complainant's confirmatory application also stated that the revised versions REV 2 and REV 3 "were declared void and annulled during production", thus wrongly implying that the documents concerned had never been distributed. In its opinion, the Council stated that it had discovered that, "contrary to the initial evidence", the revised versions REV 2, REV 3 and REV 6 to REV 10 had been distributed within the Council's preparatory bodies. However, the cover sheets of all the documents concerned already make it clear that these documents were meant to be distributed to the parties concerned and that they had been drawn up as a result of certain meetings. In view of the above, the Ombudsman fails to understand why the documents in question were not identified when the complainant's request for access was dealt with or, at the very least, when the Council examined the confirmatory application. Nor does the Ombudsman understand how the "department in charge of the matter" could have assumed that these documents had not been distributed and had even been declared void. The Ombudsman therefore takes the view that the Council failed to deal with the complainant's request for access to documents properly and carefully. This constituted maladministration. In its opinion, the Council explained that its internal rules had changed since the documents concerned by the complainant's request for access had been drafted. The Ombudsman understands the Council's position as meaning that problems of the sort identified in the present case would no longer occur under the new rules. In view of these circumstances, the Ombudsman considers that making a critical remark is the most appropriate way of dealing with the maladministration that has occurred and that no further action is required on his part. The Ombudsman therefore closes the case.

706

The Secretary General of the Council will also be informed of this decision.

FURTHER REMARKS In his request for access to documents of 10 March 2005, the complainant asked for a list of all those documents to which the Council might decide to refuse access, including 'sensitive documents' within the meaning of Article 9 of Regulation 1049/2001. In its reply, the Council did not address this issue. In his confirmatory application, the complainant therefore repeated his request. In its reply of 11 May 2005, the Council basically took the view that it was under no obligation to divulge any information concerning sensitive documents. It was only in its opinion on the present complaint that the Council stated that there were no such sensitive documents in the present case. The Ombudsman considers that it would be useful if in future cases the Council could provide such information to applicants as soon as possible. Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------Copies of the relevant documents were enclosed with the opinion. The Council noted that in order to ensure that access was granted as soon as possible, it had sent a further copy of these documents directly to the complainant.
(2) (1)

Case T-311/00 BAT (Investments) Ltd v Commission [2002] ECR II-2781, paragraph 35. See also Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgement of 26 April 2005 (not yet reported), paragraph 29. Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgement of 26 April 2005 (not yet reported), paragraph 95.

(3)

The Ombudsman presumes that the reference to "a Member State" is erroneous and should rather be to "an institution". Case T-204/99 Mattila v Council [2001] ECR II-2265, paragraph 87 and Case T405/03 Sison, cited above, paragraphs 60-62. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.
(6) (5)

(4)

707

(7)

Case T-311/00 BAT (Investments) Ltd v Commission [2002] ECR II-2781, paragraph 35. See also Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgement of 26 April 2005, paragraph 29.

708

Decision of the European Ombudsman on own-initiative inquiry OI/3/2005/OV against the European Commission

THIS OWN-INITIATIVE INQUIRY WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.

Strasbourg, 18 October 2005

Dear Mr B., On 19 May 2005, I informed you that I had decided to open an own-initiative inquiry concerning a complaint of 18 April 2005 by Mr X about an alleged failure of the Commission Delegation in a third country to reimburse him for the services he claimed to have provided to the Delegation as a florist in 1996. The Commission sent its opinion on 28 June 2005. I forwarded it to Mr X on 11 July 2005 with an invitation to make observations. As no observations had been received from him by the deadline of 31 August 2005, my office contacted him by e-mail on 22 September 2005 to inquire as to whether he had sent or intended to send observations. In his e-mail reply of the same date, Mr X indicated that he had not received my letter of 11 July 2005(1) including the Commission's opinion and made short observations. I am writing now to let you know the results of the inquiries that have been made.

THE REASONS FOR THE OWN-INITIATIVE INQUIRY On 18 April 2005, the Ombudsman received a complaint from Mr X, concerning an alleged failure of the Delegation to reimburse him for the services he claimed to have provided to the Delegation as a florist in 1996. Article 195 of the EC Treaty provides for the Ombudsman to receive complaints from "any citizen of the Union or any natural or legal person residing of having its registered office in a Member State of the Union". Given that Mr X did not fall into any of these categories, the Ombudsman informed him on 19 May 2005 that he had no power to deal with his complaint. However, given that the Ombudsman considered that the issue raised in the complaint merited an examination, he decided to open an own-initiative inquiry into this matter. According to Mr X, the relevant facts at the basis of his complaint are as follows:
709

Mr X runs a flower shop in the capital of a third country. From 25 July 1996 onwards, he provided floral decoration for the newly opened Press Centre of the Delegation. There was an oral contract for payment of USD 50 a day, but up to now, the Commission has still not paid him, although the floral decoration is still in the office of the Delegation. Mr X has written to the Head of the Delegation, and also to the Office of the Organisation for Security and Co-operation in Europe (OSCE) which transmitted his concerns to the Delegation. In 2002, Mr X was also in contact with the national Ombudsman with regard to this matter. In his complaint to the Ombudsman of 18 April 2005, Mr X claims that the Commission should pay him for the services he provided for the floral decoration of the press centre of the Delegation from 25 July 1996 onwards.

THE INQUIRY The Commission's opinion In its opinion, the Commission made the following comments: In July 1996, the Delegation put at the disposal of the Italian Embassy and a Foundation, the premises of its press and information centre (CDP) for an event. For this event, the Italian Embassy (Istituto Italiano di Cultura, represented by Mr F.) and the Foundation (represented by Mr C.) contacted Mr X's flower shop for the supply of floral decoration. No contract was established between the Delegation and Mr X but a contract was established with the Italian Embassy and the Foundation. This was mentioned in the first invoice by Mr X of 31 October 1996 which indicated that "the relevant agreement was concluded with the representative of the Institute of Culture at the Italian embassy, and in the presence of the chairman of the Foundation in [capital X], Mr. C., who gives his confirmation as attached hereto"(2). The existence of this contract was also confirmed in the letter of 25 April 1997 by the Head of the Delegation at the time, Mr G.; in a letter by the Foundation of 24 April 1997; in the letter of 15 February 2002 by the Delegation's Head of Administration; and in a letter by the national Ombudsman of 30 June 2002. By letter of 13 January 1998, Mr G. invited Mr X to remove the floral decoration from the premises of the Delegation. On the basis of the above, the Commission regretted that it could not help Mr X, given that no contract had been established between him and the Delegation. The fact that an

710

event took place on the premises of the Delegation did not mean that Delegation had a contract with or owed money to Mr X. Mr X's observations Mr X regretted the answer of the Commission and expressed his hope that the Ombudsman would take the right decision in his case.

THE DECISION 1. The Ombudsman's own-initiative inquiry 1.1 Mr X claims that the Commission should pay him for the services he provided for the floral decoration of the press centre of the Delegation from 25 July 1996 onwards. 1.2 The Commission observed that it put the premises of the Delegation's press and information centre (CDP) at the disposal of the Italian embassy and the Foundation for an event(3), and that, in that framework, the latter contacted Mr X for the supply of floral decoration. The Commission pointed out that no contract was established between the Delegation and Mr X, but a contract was concluded with the Italian embassy and the Foundation. The Commission regretted that it could not help Mr X. 1.3 On the basis of the documents in the file, the Ombudsman comes to the following findings: 1.4 Mr X's invoice of 31 October 1996 for an amount of USD 4 500 mentions that "the relevant agreement was concluded with the representative of the Institute of Culture at the Italian embassy, and in the presence of the chairman of [the] Foundation in (capital X), Mr. C., who gives his confirmation as attached hereto". The letter of the Head of the Delegation of 25 April 1997 also refers to the agreement between Mr X and Mr F. who represented the Italian Embassy. This is again confirmed in the reply of the national Ombudsman to Mr X of 5 September 2002, according to which "[b]ased on the documents that you have attached to your complaint, the initiative to sponsor the activity of 25 July 1996, by decorating the Centre with flowers, had been taken by the Italian embassy, therefore you concluded such an agreement with this Embassy, more explicitly with one of its representatives at that time, Mr F. (...)". 1.5 On the basis of the above, the Ombudsman concludes that there exists no contract between the Commission and Mr X with regard to the floral decoration services he provided, but that those services were the subject of an agreement with the Italian Embassy. This conclusion is not altered by the fact that the decoration itself was made on the Delegation's premises, which had been put at the disposal of the Italian Embassy and the Foundation by the Commission. In a letter by Mr C., of the

711

Foundation, of 24 April 1997, it appears that the fact that Mr F. subsequently left the Italian Embassy was one of the reasons for the problems encountered by Mr X(4). 1.6 Given that there is no contractual obligation for the Commission to pay Mr X for the floral decoration he provided, it appears that his claim for payment against the Commission cannot be upheld. No instance of maladministration by the Commission is therefore found. 1.7 On the basis of the above evaluation, and considering that there is no national Ombudsman in Italy, the Ombudsman concludes that Mr X could however consider lodging a complaint with the Italian Ministry of Foreign Affairs in Rome (address: Ispettorato generale del ministero e degli uffici all'estero, Ministero degli Esteri, Piazzale della Farnesina 1, 00189 Roma (RM), Italy). 1.8 Considering the above, the Ombudsman finds it appropriate to send a copy of this decision, for information, to the Italian Embassy in (capital X) and to inform the Italian Ministry of Foreign Affairs in Rome of the advice given to the complainant. 2. Conclusion 2.1 On 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 present own-initiative inquiry. 2.2 A copy of this decision will be sent to Mr X and to the Italian Embassy in (capital X). Yours sincerely,

P. Nikiforos DIAMANDOUROS ------------------------(1)

Mr X indicated that he had not received the Ombudsman's letter from the post. However, the letter to Mr X was not returned to the Ombudsman's office by the post. Translation by the Commission's services.

(2)

The letter of the Foundation of 24 April 1997 refers to a "painting exhibition of 25 July 1996".

(3)

712

"(...) I confirm that Dr. F. of the Italian Embassy had agreed on the sponsorship of this initiative with decorative flowers at the expense of the Italian Embassy. We have advised both the flower man to take back the flowers and also the Embassy to conclude the economic report, both verbally and in writing. We believe that the leaving of Dr. F. is at the basis of such inconvenience, and also the reason of the flower man for not taking back the flowers, although our repeated invitations to do so, it due to his difficulty to contract the Italian Embassy and thus resolving this problem directly with them".

(4)

713