Dear Mr E.,

By letters dated 25 September and 23 November 1998, you made a complaint to the European Ombudsman on behalf of Macedonian Metro Joint Venture. Your complaint to the Ombudsman concerns the European Commission's investigation and closure of a complaint which you had lodged with the Commission on 23 January 1997 (No 97/4188 SG (97) A/3897). Your complaint to the Commission had alleged violations of Community public procurement law by the Greek authorities (the "contracting authority") with regard to the award of the Thessaloniki Metro project to Thessaloniki Metro Joint Venture, a competitor of Macedonian Metro Joint Venture.

By letters dated 18 November and 1 December 1998, I forwarded the complaint to the President of the European Commission. On 9 February 1999, further to their requests of 15 December 1998 and 25 January 1999, I and Mr O. VERHEECKE had a meeting in Strasbourg with your legal representatives, Mr A. PLIAKOS and Mr G. KARYDIS who clarified the various points raised in your complaint. The Commission sent its opinion on 8 March 1999 and I forwarded it to you with an invitation to make observations. On 19 April 1999, I received your observations on the Commission's opinion.

On 29 April 1999, I wrote to the President of the Commission asking to inspect the Commission's file on the complaint and to take testimony from Commission officials in DG XV who dealt with the complaint. The inspection of the Commission's file by Mr I. HARDEN and Mr O. VERHEECKE of my services took place on 24 June 1999 in the DG XV premises in Brussels. The same day Mr I. HARDEN and Mr O. VERHEECKE took oral evidence from officials of DG XV: Mr A. MATTERA, Director, Mr C. SERVENAY, Head of Unit, and Mr K. TOMARAS, Administrator. The procedure followed for this taking of oral evidence was set out in a letter which I sent on 15 June 1999 to the Secretary General of the Commission.

On 1 July 1999, I wrote to the President of the Commission asking to complete the inspection of the Commission's file on the complaint and to have access to all the documents it contains. On 26 July 1999, MR O. VERHEECKE assisted by Mrs U. GARDERET carried out the second inspection of the Commission's file in the DG XV premises in Brussels. He was also provided with a copy of the file.

On 11 August 1999, I wrote to inform you of developments in the Ombudsman's handling of your complaint and to fulfil your request for a meeting with you and your legal representatives.

On 14 September 1999, Mr O. VERHEECKE assisted by Mr C. DELANEY had a meeting in Strasbourg with your legal representatives, Mr G. KARYDIS and Mr A. PLIAKOS. During this meeting, he provided your legal representatives with copies of the transcripts of the testimonies taken from the three witnesses on 24 June 1999. On 15 September 1999, I and Mr O. VERHEECKE met in Strasbourg with you and your legal representatives. During this meeting, you provided me with further information and documents regarding the handling of your case by the Commission.

On 18 October 1999, you sent me a letter in which you confirmed in writing the points which you had raised in the meeting of 15 September 1999. On 29 October 1999, your legal representatives sent me additional observations on the Commission's handling of your case, as well as comments on the three testimonies.

On 18 November 1999, I wrote to the President of the Commission asking for an additional opinion on your and your legal representatives' observations and requesting to take testimony from Commissioner M. MONTI, Mr J. MOGG, Director General of DG XV, and Mr C. SERVENAY. On 1 December 1999, I wrote again to the President of the Commission asking to take testimony also from Mr H. ZOUREK, Deputy Director General of DG XV.

On 3 January 2000, the President of the Commission sent me his opinion on your and your legal representatives' observations. On 11 January 2000, the Secretary General of the Commission sent me the opinion of the three witnesses on the complainant's further observations.

On 12 January 2000, accompanied by members of my services, I took oral evidence from Mr J. MOGG, Mr H. ZOUREK and Mr C. SERVENAY, in the European Ombudsman's premises in Brussels.

On 3 March 2000, I sent you copies of the transcripts of the testimonies taken from the three witnesses on 12 January 2000, as well as the opinion of the Commission services on your observations of 29 October 1999. On 27 March 2000, you and your legal representatives sent me your observations on the testimonies as well as your final observations on the handling of your complaint by the Commission.

On 4 April 2000, Mrs B. BROMS and Mr O. VERHEECKE of my office received your legal representatives, Mr G. KARYDIS and Mr A. PLIAKOS in the European Ombudsman's premises in Brussels. They clarified orally your final observations of 27 April 2000.

On 11 April 2000, I sent your final observations to the President of the Commission. On 7 June 2000, the Commission sent its final opinion.

I am writing now to let you know the results of the inquiries that have been made. A copy of this letter will also be sent to your legal representatives, Mr Georges KARYDIS and Mr Asterios PLIAKOS.

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, such as the Greek national authorities in the present case, 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.

I would like to apologise to you for the time it has taken to deal with your complaint.

THE COMPLAINT

The complainant is Chairman of the Michaniki Group, which is part of the Joint Venture "Macedonian Metro" consisting of the companies Michaniki (Greece), ABB Daimler Benz Transportation (Germany) and Transurb Consult (Belgium).

On 25 September 1998, he complained to the European Ombudsman on behalf of "Macedonian Metro". The complaint to the Ombudsman concerns the European Commission's investigation and closure of a complaint lodged with the Commission on 23 January 1997 (No 97/4188 SG (97) A/3897).

The complaint to the Commission alleged infringement by the Greek authorities of Directive 93/37/EEC(1) and of the principle of non-discrimination, with regard to the award of the Thessaloniki Metro project to Thessaloniki Metro Joint Venture, a competitor of Macedonian Metro Joint Venture. The leading foreign company in the Thessaloniki Metro Joint Venture is Bouygues.

According to the complainant, the relevant facts are as follows:

On 18 June 1992, the Greek Ministry of Environment, Zoning and Public Works ("YPEHODE") announced an International Public Tender procedure for the award of the project "Design, construction, self-financing and exploitation of the Thessaloniki Metro". The procedure consisted in a pre-qualification and an adjudication phase. The Project Adjudication Proposing Committee first evaluated the technical offers and thereafter the financial offers submitted. It nominated the Joint Venture "Macedonian Metro" as the temporary contractor and the Joint Venture "Thessaloniki Metro" as the first candidate temporary contractor.

All the other bidders filed objections against the evaluation of the technical offer of "Thessaloniki Metro", on the grounds that the technical offer deviated seriously from the compulsory specifications and conditions in the tender documents. Examples of deviations are that the "Thessaloniki Metro" offer included: quays of 60 m. length, instead of the mandatory quay length of 90 m required by the tender documents; 36 vehicles, instead of the 50 vehicles mentioned in the tender documents; a third rail for electric power, whereas the tender documents stipulated electrical supply with a pantograph; and a depot clearly contrary to the tender document specifications. Serious deviations from the tender documents were also found in the financial offer of "Thessaloniki Metro".

The complainant concluded that, while "Macedonian Metro" offered a project in full compliance with the tender documents, "Thessaloniki Metro" submitted an offer for a smaller, non-comparable project which was outside the specifications of the tender documents. Furthermore, the "Thessaloniki Metro" offer was in contradiction with the concept of a concession agreement, since its financial offer eliminated any risk from the operation of the metro. The Ministry thus discriminated between the complainant and "Thessaloniki Metro" by being lenient and flexible to the latter, whilst observing very strictly the specifications towards the complainant. It thereby breached the principle of equal treatment of competitors.

By decision of the Deputy Minister of 24 June 1994, negotiations were started with the complainant as temporary contractor. However, by decision of the Minister of 29 November 1996, the negotiations with the complainant were terminated and the Joint Venture "Thessaloniki Metro" was called for negotiations. The complainant lodged an action for annulment of this decision before the Greek Council of State.

Against this factual background, "Macedonian Metro" lodged a complaint with the Commission on 23 January 1997. Its complaint made the following allegations:

The invitation to "Thessaloniki Metro" to start negotiations with a view to concluding a concession agreement was illegal and infringed the principle of equal treatment, since its technical and financial offer deviated seriously from the mandatory specifications and conditions provided for in the tender documents. The procedure followed by the Greek authorities had infringed the provisions of Directives 93/37 and 89/665, as well as fundamental principles of the EC Treaty such as non-discrimination, transparency and proportionality, which should also be observed in case of concession agreements. For these reasons, "Macedonian Metro" requested the Commission immediately to initiate a procedure against the Greek authorities and to take any measure necessary in order to guarantee the correct application of Community law and the general principles of law applicable in the public procurement sector.

As regards the Commission's handling of the complaint, the complainant observed that through many reports, letters, meetings and contacts with the responsible service of the Commission, DG XV, it appeared that the latter believed that the complaint had solid grounds and that the Commission would not allow the Greek authorities to sign a contract with the complainant's competitor, given that many infringements of Community law had been detected and that the project was to be co-financed from the Community's budget. The complainant annexed copies of three "pre-226-letters", dated 2 May, 30 July and 3 November 1997, sent by the Director General of DG XV, Mr J. MOGG, to the Greek Permanent Representative. In the second pre-226-letter of 30 July 1997, Mr MOGG confirmed the Commission services' evaluation that the tender of "Thessaloniki Metro" seemed to present significant deviations from the main compulsory terms of the tender document, and therefore the doubts expressed in the previous letter could not be removed. For this reason, Mr MOGG requested the Greek authorities to suspend the approval of the result of the tender procedure and the signing of the contract until the Commission took a decision on the issue.

However, when the matter was considered at the level of the Commissioners, and despite the unanimous proposal of the competent Commission services to start infringement proceedings against the Greek authorities, the final and surprising political decision was that the Greek authorities would be excused if they promised not to do it again in the future.

Furthermore, the Director General of DG XV informed the complainant by letter dated 30 July 1998 that ". the Commission services will propose to the Commission the closing of the file, unless you will be able to provide additional elements which would demonstrate a clear infringement of EU law on public procurement." This letter was received on 19 August 1998. On 10 September 1998, the complainant sent a reply to Commissioner MONTI containing a significant list of new elements which should have obliged the Commission to examine these new violations in the framework of the existing file, or to open a new file. On 21 October 1998, the complainant sent additional elements, concerning the finalisation of the draft concession agreement, to Commissioner MONTI which proved that in this case there had been new and clear infringements of Community law. However, by letter dated 10 December 1998 the Director General of DG XV finally informed the complainant that, by decision N° H/98/3262 of 27 August 1998, the Commission had already closed the file.

In his letter of 23 November 1998 to the Ombudsman, the complainant alleged that the failure of the college of Commissioners to send a letter of formal notice to the Greek authorities, despite the obvious infringements discovered unanimously by the competent services of the Commission (DG XV, DG VII, DG XVI and the Legal Service), was a breach of the Commission's duty under Article 226 of the EC Treaty and that no substantial reason of public interest existed to proceed to a political decision on the case.

On the basis of the complaint as described above, the Ombudsman asked the Commission to submit an opinion on the following allegations:

1. The decision to close the file on the complaint was not sufficiently reasoned with regard to the different allegations, which put forward clear violations of Community public procurement law (amongst which the violation of the principle of equality) and which were largely supported by documentary evidence.

2. The final decision to close the file was not consistent with the Commission's initial approach to the complaint, which consisted in a request from the Commission to the Greek authorities for clarifications on the allegations of violations of Community law and for suspension of the tender procedure. Those requests were based on the examination of the tender procedures by the Commission's services which led to the conclusion that the tender of the joint venture "Thessaloniki Metro" should have been dismissed, given its considerable deviations from the compulsory technical and financial terms of the tender documents.

3. The complainant was not officially informed for 18 months (from 23 January 1997 until 30 July 1998) about the outcome of his complaint.

4. By not informing the complainant, the Commission did not give him the possibility to support his opinion, especially with regard to the Commission's intention to close the file.

5. The Commission did not reply to the letter of the complainant of 10 September 1998 in which he contested the proposal to close the file on his complaint, by submitting new evidence as regards the violation of Community law.

THE INQUIRY

In summary, the Commission's opinion was as follows:

During the course of 1997, the Commission services examined in depth the complaint submitted by the consortium Macedoniko Metro in this very complex case. Upon their proposal, the Commission discussed the case at its meeting of 7 April 1998. The Commission noted that "the voluminous tender documents contained provisions which could give rise to differing interpretations by tenderers as to their exact requirements, and could, and actually have led to serious disputes between the participants. On the basis of the elements submitted by all parties concerned, the Commission reached the conclusion that it could not be sustained that the contracting authority had not allowed for a genuinely competitive procedure to take place. Nor could it be sustained that a clear infringement of the principle of equality of treatment has taken place".

"The Commission noted, nevertheless, that the not always accurate drafting of the tender documents could generate uncertainty and, if repeated in the future, could seriously undermine award procedures for projects of that magnitude". It decided therefore to close the case, subject to Commissioner MONTI asking the Hellenic authorities for comments and assurances as to their future policy and receiving from them a satisfactory answer. This was done by letter of 20 May 1998, and the Hellenic authorities' satisfactory response was communicated to the Commission by letter of 26 June 1998.

It has to be noted that a Commission decision as to whether or not to pursue infringement proceedings under Article 226 of the EC Treaty depends upon a global assessment of the case and of the measures necessary to ensure the respect of Community law by the Member State concerned, which would include the assurances given by the Member State on its future policy in the matter under consideration.

The case was formally closed on 27 August 1998. The elements which were subsequently submitted by the complainant in support of his complaint were not of a nature to justify the Commission reversing its position in this case.

In view of the above, the Commission considered that its decision to close the file was sufficiently reasoned and that it took into account all the elements provided by the parties and the assessment made by its services.

As regards the contacts that the Commission had with the complainant in this case, the Commission noted that the complainant was kept fully informed of the progress of this case during its examination by the Commission services. He indirectly acknowledged this in his submission to the Ombudsman where he stated that "through many reports, letters, meetings, and contacts the services of the XV G.D. seemed to believe.". In fact, representatives of the consortium had several meetings in Brussels and telephone conversations with the Commission services during the course of 1997 and the beginning of 1998. During these meetings (e.g. in July and October 1997), and as customary in similar cases, they were provided with information on the services' assessment of the case and of its developments. Also, when in March 1998 the Greek Council of State rejected the complainant's application against the awarding authority, the Commission services were again contacted by the complainant and discussed these developments. The Commission therefore concluded that the complainant was kept fully informed throughout the examination of the file by the Commission services of the developments of the case, as were all other parties to the proceedings.

As soon as the Commission decided, on the basis of all the elements in its possession, not to open infringement proceedings against Greece, it immediately informed the complainant formally and in writing, by letter of 30 July 1998, of its intention to close the file, and asked for his comments before doing so. However, not having heard from the complainant, the Commission closed the file.

Subsequent to the closing of the file, the complainant made further submissions claiming that the Commission should not have closed the file or that it should reopen infringement proceedings against the Greek state (his letters of 10 September, 7 October, 21 October and 25 November 1998). The Commission examined the arguments presented and by letter of 10 December 1998 informed the complainant that they were not of a nature to justify altering its above-mentioned decision.

In view of the above, the Commission did not consider that the complainant was not properly informed on the handling of his complaint by the Commission.

In his observations on the Commission's opinion, the complainant emphasised the fact that the Commission had invited him to make observations on the proposed closure of the case in its letter of 30 July 1998, which arrived on 19 August 1998 in the middle of the summer, but already closed the case on 27 August 1998, i.e. only one week later.

The complainant stated that the Commission dealt with his complaint in a manner which was completely contrary to the principles of good administration and the requirements of Article 226 of the EC Treaty. He referred to the results of the Ombudsman's own initiative inquiry into the Commission's administrative procedures for dealing with complaints concerning Member States' infringement of Community law, explained in the Ombudsman's Annual Report for 1997. He observed that in the present case the Commission violated the procedural guarantees concerning: 1) the maximum period of one year from the date of the registration; 2) the information of the complainant with regard to the evolution of the case and the negotiations with the Greek government; and 3) the failure to give adequate reasons for the closure of the case and to respect the complainant's right to defend his position before the Commission takes a final decision.

The complainant alleged that the reasons given by the Commission to close the case were both insufficient and contradictory: In its letter of 30 July 1998 to the complainant, the Commission first underlined that the tender documents were voluminous and drafted in an ambiguous manner, which could give rise to differing interpretations by tenderers as to their requirements. However, the Commission subsequently considers that it is just because of the complexity of the procedure and of the tender documents that it could not be maintained that the contracting authority had not allowed a genuinely competitive procedure or that the principle of equality of treatment had been violated. According to the complainant, this statement of reasons is contradictory: it is illogical to conclude that there could be no clear infringement of Community law and of the principle of equality of treatment because the tender documents were drafted in an ambiguous and abstract way. It is evident that the ambiguous and abstract drafting of the tender documents results in a lack of transparency which is an obstacle for the correct and objective evaluation of the tenders and a risk for arbitrariness by the contracting authority.

The complainant further observed that the additional reason invoked by the Commission to close the case, namely the assurances provided by the Greek government as to their future policy, meant that the Commission seemed to accept the violation committed in this case without giving the complainant an explanation for its failure to ask the Greek authorities to take measures in order to put an end to the infringement of Community law which the Commission tacitly recognised. By its decision, the Commission has thus neglected the objective character of the Article 226 procedure.

The complainant further observed that the position finally adopted by the Commission was in clear contradiction with the position of DG XV, without any explanation for this radical change. DG XV had concluded that there was a clear infringement of the provisions of Directive 93/37/EEC and of the principle of equality of treatment and asked the Greek authorities to submit observations and to suspend the procedure (letters of 2 May and 30 July 1997). The complainant also observed that the Commission's opinion to the Ombudsman also avoided giving any explanation for the radical change in its position. He considered there to be a clear abuse of power by the Commission.

FURTHER INQUIRIES

After carefully examining the Commission's opinion and the complainant's observations, the Ombudsman considered that the Commission had not provided a satisfactory reply to all the allegations raised by the complainant. In particular, the Ombudsman considered that the Commission's opinion failed to deal adequately with the complainant's allegations concerning the reasoning of the decision and the inconsistency of the Commission's final decision with the initial approach adopted by DG XV.

As regards those two allegations, the Ombudsman wrote to the Commission on 29 April 1999 stating that he considered it necessary for his services to inspect, in accordance with Article 3 (2) 1st indent(2) of the Statute of the Ombudsman, the Commission's file on the complaint lodged on 23 January 1997 by the Joint Venture Macedonian Metro.

The Ombudsman also considered it necessary for his services to take testimony from the officials and other servants in DG XV who had dealt with the complaint, in accordance with Article 3 (2) 4th indent(3) of the Statute of the Ombudsman.

In reply, the Commission invited the Ombudsman to contact the General Secretariat of the Commission to make the necessary arrangements for the inspection of the file and for the taking of oral evidence and informed him that the DG XV officials concerned were Mr A. MATTERA, Director, Mr C. SERVENAY, Head of Unit and Mr K. TOMARAS, Administrator.

After further correspondence concerning the procedure for the taking of oral evidence, the Ombudsman's services both inspected the file and took oral evidence on 24 June 1999. The inspection of the file took place in the DG XV premises in Brussels.

Oral evidence was taken using the following procedure:

1 The date, time and place for the taking of oral evidence were agreed between the Ombudsman's services and the General Secretariat of the Commission, which informed the witnesses. The oral evidence was taken on the Ombudsman's premises in Brussels.

2 Each witness was heard separately and was not accompanied.

3 The language of the proceedings was agreed between the Ombudsman's services and the Secretariat General of the Commission. At the request of the witnesses, the proceedings were conducted in French.

4 The procedure was explained to each witness before the oral evidence was taken.

5 The questions and answers were recorded and transcribed by the Ombudsman's services.

Each witness was sent the transcript of his evidence for signature. The witnesses were invited to propose linguistic corrections to their answers. They were informed that if they wished to correct or complete an answer, the revised answer and the reasons for it should be set out in a separate document and annexed to the transcript. The signed transcripts form part of the Ombudsman's file on the case.

The Ombudsman's services took oral evidence from the three witnesses concerning the procedures and reasons leading to DG XV's proposal to send a letter of formal notice to the Greek authorities and the subsequent decision to close the file.

As regards the inspection of the file, the Ombudsman's services were refused copies of the Commission's file and were denied access to documents emanating from companies on grounds of commercial confidentiality.

The Ombudsman therefore wrote to the President of the Commission on 1 July 1999 kindly requesting the Commission to permit the Ombudsman's services to have full access to the Commission's file on the case. After further correspondence between the Ombudsman and the Secretary General of the Commission, a second inspection of the file was carried out by the Ombudsman's services on 26 July 1999 in the DG XV premises in Brussels.

The complainant referred again to the fact that the Commission's letter of 30 July 1998 was received only on 19 August 1998. He sent additional elements on 10 September, 7 October, 21 October and 25 November 1998, but was informed by letter of 10 December 1998 that the case had already been closed on 27 August 1998. The complainant considered that he was effectively denied the possibility to contest the announced closure of the case.

The complainant also maintained his view that the closing of the file came as a result of a political decision which was enforced upon the services of DG XV. He observed that in its documents, DG XV had clearly accepted that important illegalities and violations had been noted with regard to the offer of the Joint Venture "Thessaloniki Metro". He further stated that during his meeting on 7 July 1997 with the officials from DG XV, he received the impression that the officials were persuaded of the correctness of his thesis and deeply concerned about the importance of the violations. However, when the decision to close the case had been taken in principle by the Commission college, the services of DG XV were subsequently pressured to close the case also procedurally and to explain the political decision which had no logical basis.

The legal representatives of the complainant also made observations on the testimonies taken from the officials of DG XV. They considered that the explanations which were offered for the Commission's decision to close the file were contradictory, unconvincing and that everything that followed the decision of 7 April 1998 was an administrative operation intended to cover legally a political decision which had no legal basis.

In order to further pursue his inquiries into the complaint, the Ombudsman wrote to the President of the Commission on 18 November 1999, asking the Commission to give an opinion on the complainant's allegation, contained in his further observations, that the decision to close the case was a political decision which had no legal basis and which was in contradiction with DG XV's proposal to send a letter of formal notice to the Greek authorities.

On 3 January 2000, the President of the Commission replied as follows:

"(.) Under Article 195 of the EC Treaty and the Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties, your letter refers to allegations concerning the judgement exercised by the Commission when deciding, in the performance of its role as guardian of the Treaties, to terminate proceedings in an infringement case. Without going into the question of whether the allegations are founded, I think that it is first essential to draw a clear dividing line between the power to investigate matters of maladministration and the discretionary power of the Commission as a political institution. In this connection it should be borne in mind that the Court of Justice has, in its judgements(4), invariably accepted that the Commission enjoys a large measure of political discretion in the performance of the role assigned to it by the Treaty (.).

On 11 January 2000, the Secretary General of the Commission submitted to the Ombudsman the reply of the three witnesses on the complainant's further observations of 29 October 1999. They observed that, contrary to what the complainant stated, there was no contradiction between their testimonies, but only a different presentation of the same opinion on the substance of the case, and more specifically as regards the fact that the aspect of infringement in this case was not at all evident. The reply from the witnesses concluded with the following remarks on their testimonies:

Two solutions could initially be envisaged and were legally defendable: the sending of a letter of formal notice or the non-pursuance of the case if certain conditions were met. The services concerned have initially chosen for the first position but were aware of its limits.

Contrary to what the complainant observed, there was no "radical change of position". An attentive reading of the documents of the file shows that there was a position which has gradually evolved during the instruction of the file on the basis of the elements of appreciation which were provided and later rendered more precise by the Greek authorities.

In its meeting of 7 April 1998 the Commission has not decided "the closure of the case", but has fixed an orientation of principle by deciding "the postponement in view of the closure" and by mandating Commissioner MONTI to write to the Greek authorities in order to ask for clarifications and assurances.

It results clearly from Commissioner MONTI's letter to the Greek authorities that the Commission, having fixed an orientation of principle, could have taken a different decision if a certain number of clarifications and guarantees had not been provided. However, the clarifications and guarantees being satisfactory, the services of the DG Internal Market, in the framework of the orientation mentioned above, have proposed the closure of the case.

In his letter of 18 November 1999 to the President of the Commission, the Ombudsman also considered it necessary for his services to take further testimonies from Commissioner M. MONTI, Mr. J. MOGG, Director General of DG XV, and Mr C. SERVENAY, Head of Unit. In his letter of 1 December 1999, the Ombudsman also asked to take testimony from Mr H. ZOUREK, Deputy Director General of DG XV.

In his reply of 3 January 2000, the President of the Commission pointed out that Article 3 (2) of the Statute of the Ombudsman makes no provision for Commissioners to testify.

After further correspondence concerning the procedure, the Ombudsman and his services took oral evidence from the above-mentioned witnesses, with the exception of the Commissioner, on 12 January 2000 in the Brussels premises of the European Ombudsman. Oral evidence was taken on questions related to the correspondence between the various Commission services involved in dealing with this case.

In their observations of 27 March 2000, the complainant and his legal representatives made the following final comments on the handling of their complaint by the Commission and on the second testimonies:

The complainant considered that the testimonies did not contain any answer on the serious allegations of maladministration in this case. He repeated his point that, although all services of the Commission involved in this case (DG VII, DG XV, DG XVI and the Legal Service) underlined the clear infringement of EU law in all their internal statements and proposed to take action against the Greek authorities, the Commissioners decided on 7 April 1998 not to proceed. Commissioner M. MONTI tried to obtain a commitment from the Greek authorities that such illegal practices would not be repeated in the future, as if a statement for a future case could be legally and morally enough to erase the illegal acts of the past.

The complainant observed more particularly that the witnesses tried to convince in their testimonies that the case had matured and had gradually changed their initial opinion. However, they did not provide even one single written statement before the date of 7 April 1998 which sustained their new position.

The complainant noted that the Commission had not answered to the point that the case was closed on 27 August 1998, i.e. only 8 days after the complainant received the invitation to submit additional elements.

The legal representatives of the complainant made final observations which included the following points:

They suggested that the Legal Service of the Commission, although acknowledging the complexity of the file, had never taken the view that there was no infringement and had approved the sending of a letter of formal notice to the Greek authorities.

The decision of the Commission of 7 April 1998 contained no valid legal reasoning for the closure of the file and had no relation whatsoever with the instruction of the case by DG XV until that moment. The decision of 7 April 1998 was a decision of principle which left practically no margin for Commissioner M. MONTI and for the services of DG XV to go in another direction. This decision imperatively implied the closure of the case. The services of DG XV were just requested to take the application measures of this decision. The only rare and extreme hypothesis which could eventually reverse this decision of principle would be that the Greek authorities refuse to respect Community law in the future. The legal representatives therefore stated that the Commission's decision was not accompanied by concrete conditions upon the Greek authorities, given that the recognition by the Greek State of its obligation to respect Community law in the future is an obligation which in any case derives from its quality as a Member State of the European Union. It was therefore very easy for the Greek authorities to recognise this obligation which did not have any impact on their infringement in the past. However, the Commission did not specify what guarantees the Greek authorities finally gave and whether those guarantees were afterwards verified by the Commission services.

The legal representatives also considered that the witnesses had not explained the difference between, on the one hand, the letter of 3 January 2000 from President PRODI to the Ombudsman which spoke about political discretion in this case, and, on the other hand, the letter of Mr J. MOGG to the complainant dated 30 July 1998 according to which the closure was justified on the basis of legal interpretation. The legal representatives therefore considered that the decision to close the case was taken on the basis of political and not strictly legal criteria.

With regard to the observations made by the complainant, the Commission stated that DG XV had carefully considered all aspects of the case, not only the technical but also the economic aspects. This appeared from the three letters sent to the Greek authorities on 2 May, 30 July and 3 November 1997, the latest letter dealing solely with the economic aspects of the case. The Commission referred to the large number of notes and documents in the file dealing with these aspects, such as the detailed analysis of the case presented in a note of 26 pages drafted by the case rapporteur in October 1997. The Commission equally referred to various other notes on the case.

As regards the complainant's question whether the decision was a pure political decision and whether the case was correctly presented to the heads of cabinet, the Commission asked the Ombudsman to look at the internal notes and e-mails on the file in which there were no statements of that kind.

As regards the complainant's comment that the witnesses could not prove with written evidence that their position on the case had gradually changed, the Commission reminded the Ombudsman of the evidence given by the officials concerned and the later comments which they submitted to the Ombudsman.

With regard to the complainant's allegation that the Commission closed the case on 27 August 1998, 8 days after he received the Commission's letter of 30 July 1998 inviting him to submit comments within a reasonable time-limit, the Commission repeated that it could only regret that the letter reached the complainant late, i.e. 19 days after it was sent, but that this was not the Commission's fault.

With regard to the observations of the complainant's legal representatives, the Commission made the following comments:

It was up to the Commission, at its level, to place itself in a wider context and, especially where another, equally defendable position could be adopted, to bear in mind a range of considerations specific to the case and having to do with the protection of the Community's interest. No-one can dispute the fact that in such cases the Commission enjoys discretionary powers, as the Court has recognised. In the present case, the Commission had noted that there were two possible approaches and solutions, chose one of them which was just as legally defendable as the other, and gave its departments guidelines for the action to be taken on the matter.

As regards the assurances asked from the Greek authorities, the Commission observed that the Greek authorities' reply was of great importance in deciding whether or not to close the case. Contrary to the complainant's allegation that no concrete conditions were put to the Greek State, the Commission stated that the Greek authorities gave undertakings and the situation greatly improved from then on. The Greek authorities rectified a number of errors caused by inaccuracies in the specifications and thereby ensured compliance with Community law in the area concerned. This was a tangible outcome of the undertakings given by the minister responsible for the Thessaloniki Metro case, to the effect that in future all specifications would be clear and accurate. The Greek authorities therefore, demonstrated their willingness fully to honour their commitments.

In view of the complexity of the case, it seems useful to summarise the complainant's allegations as they appear from the initial complaint and following successive exchanges of opinions and observations between the complainant and the Commission:

According to the complainant, the services of the Commission responsible for the file on the Thessaloniki Metro case concluded that there was a clear infringement of the provisions of Directive 93/37/EEC as well as of the principle of equality of treatment and therefore proposed to send a letter of formal notice to the Greek authorities. However, when the matter came before the college of Commissioners on 7 April 1998 there was a radical and unexplained change of position. The complainant therefore considered that the college of Commissioners had decided to close the case on the basis of political considerations that had no legal basis and were not motivated by public interest and had thereby improperly and abusively exercised its discretionary power in the framework of the Article 226 procedure.

According to the complainant, the Commission's letter to him dated 30 July 1998 first underlined that the tender documents were voluminous and drafted in an ambiguous manner, which could give rise to differing interpretations by tenderers as to their requirements. However, the letter went on to consider that it is just because of the complexity of the procedure and of the tender documents that it could not be maintained that the contracting authority had not allowed a genuinely competitive procedure or that the principle of equality of treatment had been violated. The complainant also observed that the additional reason invoked by the Commission to close the case, namely the assurances provided by the Greek government as to their future policy, in fact meant that the Greek authorities could escape from the consequences of past infringements by simply assuming the obligation to modify their behaviour for the future. The complainant therefore considered that the reasons that the Commission gave to explain its decision to close the file were inadequate and contradictory.

By letter of 30 July 1998, the Commission informed the complainant of its intention to close the case, unless he could provide additional elements to demonstrate a clear infringement of EU law on public procurement. The complainant received this letter on 19 August 1998. He contested the proposal to close the case by submitting new evidence by letter of 10 September 1998 and sent additional letters on 7 and 21 October 1998 and 25 November 1998. In these circumstances, the complainant alleged that the Commission had violated his right to be heard before the closure of the case. Moreover, the Commission did not reply to those letters and only informed him on 10 December 1998 that it had already definitively closed the file by its decision n° H/98/3262 of 27 August 1998.

The complainant alleged that he was not officially informed for 18 months about the outcome of his complaint and considered that this represented an excessive delay in providing him with information.

THE DECISION

Before considering the complainant's first allegation, the Commission's remarks concerning the Ombudsman's competence in the matter should be examined.

1 The Ombudsman's competence to investigate possible maladministration in the Commission's handling of an Article 226 infringement procedure.

1.1 By letter dated 3 January 2000, the President of the Commission replied to the Ombudsman's request for an opinion on the complainant's allegation that the case was closed on the basis of political considerations that had no legal basis and were not motivated by public interest. The President stated that it is essential to "draw a clear dividing line between the power to investigate matters of maladministration and the discretionary power of the Commission as a political institution. In this connection it should be borne in mind that the Court of Justice has, in its judgements, invariably accepted that the Commission enjoys a large measure of political discretion in the performance of the role assigned to it by the Treaty."

1.2 The above-mentioned letter appears to cast doubt on the Ombudsman's competence to deal with the complainant's allegation concerning the Commission's decision to close the case.

1.3 The Ombudsman recalls that Article 211 of the EC Treaty establishes the duty of the Commission to ensure that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied. As regards Member States, the powers and duties of the Commission as "Guardian of the Treaty" are specified in Article 226 (ex Article 169) EC, which is an important element in maintaining the rule of law in the European Union.

1.4 The Article 226 procedure involves an administrative stage and a possible judicial stage(5). In previous cases dealt with by the Ombudsman, the Commission has accepted that during the administrative stage it should proceed vis-à-vis complainants in accordance with the principles of good administrative behaviour(6).

1.5 In the administrative stage, the procedure used by the Commission involves sending one or more "pre-Article 226" letters, as well as a letter of formal notice inviting the observations of the Member State. Only then could the Commission, in accordance with Article 226 EC, consider that the Member State has failed to fulfil an obligation under the Treaty and issue a reasoned opinion on the matter. If the Member State fails to comply with the reasoned opinion within the period specified, the Commission may launch the judicial stage of the procedure, by referring the matter to the Court of Justice.

1.6 The case law of the Court of Justice establishes that the Commission's decision whether or not to launch the judicial stage of the Article 226 procedure is discretionary. If it considers that there is an infringement, the Commission has the right, but not the obligation, to apply to the Court for a declaration establishing the failure of which the Member State is accused(7). Its discretionary power precludes the right of individuals to require the Commission to adopt a particular position and to bring an action for annulment against its refusal to take action(8).

1.7 The Ombudsman also recalls that discretionary power is not the same as dictatorial or arbitrary power. A public authority must always have good reasons for choosing one course of action rather than another. A normal part of exercising a discretionary power is to explain the reasons why a particular course of action has been chosen.

1.8 Furthermore, an institution must act within the limits of its legal authority when making a discretionary decision(9). Very broad discretionary powers may exist, but they are always subject to legal limits. General limits on such authority are established by the case law of the Court of Justice which requires, for example, that administrative authorities should act consistently and in good faith, avoid discrimination, comply with the principles of proportionality, equality and legitimate expectations and respect human rights and fundamental freedoms.

1.9 Finally, the Ombudsman points out that in carrying out his task of inquiring into possible instances of maladministration, he does not seek to question the exercise of a discretion, provided that the institution or body concerned has acted within the limits of its legal authority.

2 The allegation that the Commission closed the case on the basis of political considerations that had no legal basis and that were not motivated by public interest.

2.1 According to the complainant, the services of the Commission responsible for the file on the Thessaloniki Metro case concluded that there was a clear infringement of the provisions of Directive 93/37/EEC as well as of the principle of equality of treatment and therefore proposed to send a letter of formal notice to the Greek authorities. However, when the matter came before the college of Commissioners on 7 April 1998 there was a radical and unexplained change of position. The complainant therefore considered that the college of Commissioners had decided to close the case on the basis of political considerations that had no legal basis and were not motivated by public interest and had thereby improperly and abusively exercised its discretionary power in the framework of the Article 226 procedure.

2.2 In its opinions on the complaint, the Commission observed that two solutions could initially be envisaged and were legally defensible: the sending of a letter of formal notice or the non-pursuance of the case if certain conditions were met. The services concerned initially chose the first position, but were aware of its limits. Contrary to what the complainant observed, there was no radical change of position. An attentive reading of the documents of the file shows that there was a position which gradually evolved on the basis of elements which were provided and later rendered more precise by the Greek authorities. It was up to the Commission, at its level, to place itself in a wider context and, especially where another, equally defensible position could be adopted, to bear in mind a range of considerations specific to the case and having to do with the protection of the Community's interest.

2.3 During the inquiry, the Ombudsman inspected the Commission's file, including the minutes of the meeting of the college of Commissioners of 7 April 1998, as well as correspondence between various Commission services involved in dealing with the case. The Ombudsman also took oral evidence from a number of Commission officials. On the basis of this evidence, the Ombudsman makes the following findings:

(i) The Commission service which played the leading role in dealing with the complaint was DG XV - Internal Market. After investigation, this service took the view that there was an infringement and that a letter of formal notice should be sent to the Greek authorities;

(ii) Both DG VII (Transport) and DG XVI (Regional Policy and Cohesion) accepted the draft letter of formal notice. The Commission's Legal Service also accepted it, with some modifications. The Legal Service had, however, pointed out on two occasions that the case concerns a negotiated procedure leading to a concession contract and that this involves an element of flexibility which is not present in open or restricted procedures;

(iii) Following the decision of 7 April 1998 to postpone a decision with a view to closing the case, Commissioner Monti sought written assurances from the Greek authorities with regard to their future policy, so as to guarantee in any similar future situations the respect of the principle of equal treatment, a principle recognised by the Court of Justice and which is fundamental to the Community rules on public procurement. The case was only closed after the Greek authorities gave assurances concerning their acceptance of these rules and principles and that all necessary measures would be taken to prevent future situations similar to those which gave rise to this case.

2.4 Based on the oral evidence given by DG XV witnesses, the Ombudsman's understanding of the point made by the Commission's Legal Service is as follows. If the infringement were to be pursued through Article 226, the Greek authorities could cancel the existing tender and subsequently negotiate with a single candidate on the basis of Article 1 (g) of Directive 93/37. In practice, therefore, the Greek authorities could not be required to award the concession to a different tenderer, nor to open a new competitive tender procedure. In oral evidence, the DG XV witnesses accepted and defended the view that two approaches to the problem were possible.

2.5 In carrying out its functions as Guardian of the Treaty, the Commission has a discretionary power, as recognised by the Court of Justice. The Ombudsman notes, with regret, that the available documentary evidence concerning the meeting of the college of Commissioners of 7 April does not clearly explain the reasons for the decision to postpone a decision with a view to closure.

2.6 However, from the evidence available to the Ombudsman, including the opinions he requested from the Commission on the complaint, the view of the competent service of the Commission, referred to in 2.3 (i) above, as well as the letter of 3 January 2000 from the President of the Commission referring to "political discretion", it seems obvious that the Commission's reason for closing the case was not that it was satisfied that there was no infringement. It therefore appears that the Commission made a discretionary decision to close the case, despite the evidence of a possible infringement. This was clearly stated in the opinion of the Commission on a request for information sent to the Ombudsman on 8 March 1999, where the Institution stresses that the decision as to whether or not to pursue an infringement under article 169 (now 226) of the EC Treaty depends upon a global assessment of the case and of the measures necessary to ensure respect for Community law by the Member State ion its future policy. The same conclusions were also confirmed by the declarations of the Commission officials questioned during the inquiry.

2.7 In view of the doubts expressed by the Legal Service concerning the likely practical effect of pursuing the infringement procedure, the Ombudsman considers that it was within the Commission's legal authority to decide that more progress might be made in achieving the correct implementation of Community law by using the case to seek assurances from the Greek authorities as to their future conduct than by sending a letter of formal notice.

2.8 The Ombudsman's inquiry has not, therefore, revealed maladministration in relation to this aspect of the case. It must be recalled, however, that the Commission's decision to close the case was made without the possible further elements that could have been provided by the complainant: this aspect of the case is dealt with in section 4 of this decision below.

3 The allegation that the Commission did not provide the complainant with adequate reasons for its decision to close the case.

3.1 The complainant alleged that the reasons the Commission gave to explain its decision to close the case were inadequate and contradictory.

3.2 The Ombudsman recalls that, in the framework of his own initiative inquiry into the Commission's administrative procedures for dealing with complaints concerning Member States' infringement of Community law (303/97/PD(10)), the Commission declared itself prepared to inform the complainant before rejecting a complaint, with a statement of the reasons for the proposed rejection.

3.3 To serve their intended purpose of informing the complainant, the reasons given should be clear and understandable.

3.4 In the present case, the Commission sent the following letter to the complainant:

The Commission finally discussed the case at the Commission meeting of 7 April 1998. The Commission noted that the voluminous tender documents contained provisions which could give rise to differing interpretations by tenderers as to their exact requirements. However, taking into account the complexity of the procedure and of the tender documents, the Commission reached the conclusion that it could not be maintained that the contracting authority had not allowed a genuinely competitive procedure. Within this context, it could not be demonstrated that a clear infringement of the principle of equal treatment necessitating the opening of infringement proceedings has taken place. The Commission decided also to empower Commissioner MONTI to contact the Hellenic authorities in order to express the Commission's position on this subject and to request the authorities' comments and assurances as to their future policy. This was done by letter of 20 May 1998, and the Hellenic authorities' response was communicated to the Commission by letter of 26 June 1998.

On the basis of the above and the assurances provided by the Hellenic authorities as to their future policy, the Commission services will propose to the Commission the closing of the file, unless you will be able to provide additional elements which would demonstrate a clear infringement of EU law on public procurement (.).

3.5 In its opinion on the complaint, the Commission explained that, on the basis of the elements submitted by all parties concerned, it reached the conclusion that it could not be sustained that the contracting authority had not allowed for a genuinely competitive procedure to take place. Nor could it be sustained that a clear infringement of the principle of equality of treatment has taken place. The Commission noted, nevertheless, that the not always accurate drafting of the tender documents could generate uncertainty and, if repeated in the future, could seriously undermine award procedures for projects of that magnitude. It decided therefore to close the case subject to satisfactory assurances from the Greek authorities as to their future policy. The Commission also pointed out that a Commission decision as to whether or not to pursue infringement proceedings under Article 226 of the EC Treaty depends upon a global assessment of the case and of the measures necessary to ensure the respect of Community law by the Member State concerned, which would include the assurances given by the Member State on its future policy in the matter under consideration.

3.6 In view of the above, the Commission considered that its decision to close the file was sufficiently reasoned and that it took into account all the elements provided by the parties and the assessment made by its services.

3.7 The Ombudsman considers that the Commission's letter to the complainant, despite its complex drafting, is naturally to be understood as meaning that the Commission closed the case because it considered that there had been no infringement of Community law. The Ombudsman's finding, in paragraph 2.6 above, is that this was not the reason for the Commission's decision to close the Thessaloniki Metro case. The Commission therefore failed to provide the complainant with adequate reasons for its decision to close the file on the complaint. This constitutes an instance of maladministration.

4 The Commission violated the complainant's right to be heard before a decision was taken and failed to reply to the complainant's letters sent thereafter.

4.1 The complainant alleged that the Commission violated his right to be heard before the closure of the case. By letter of 30 July 1998, the Commission informed the complainant of its intention to close the case, unless he provided additional elements to demonstrate a clear infringement of EU law on public procurement. The complainant stated that he received this letter on 19 August 1998. He contested the proposal to close the case by submitting new evidence by letter of 10 September 1998 and sent additional letters on 7 and 21 October 1998 and 25 November 1998. However, the Commission only replied to those letters on 10 December 1998 informing him that it had already closed the file by its decision n° H/98/3262 of 27 August 1998.

4.2 In its opinions on the complaint, the Commission stated that, not having heard from the complainant after having sent the letter, it decided to close the case. It could only regret that the letter reached the complainant late, i.e. 19 days after it was sent, but considered that this was not the Commission's fault. The Commission also explained that it replied on 10 December 1998 to the letters of the complainant dated 10 September, 7 and 21 October 1998 and 25 November 1998, in which he claimed that the Commission should not have closed the file or should have reopened infringement proceedings.

4.3 After having examined the arguments presented by the complainant, the answer given by the Commission to these letters also failed to provide the complainant with the real reasons for the Commission decision to close the case. This aspect has however already been dealt with in point 3.7 of this decision.

4.4 With regard to the allegation that the Commission violated his right to be heard before the closure of the case, the Ombudsman recalls that, in the framework of his own initiative inquiry into the Commission's administrative procedures for dealing with complaints concerning Member States' infringement of Community law (303/97/PD(11)), the Commission declared itself prepared to inform the complainant before rejecting a complaint, with a statement of the reasons for the proposed rejection. The Ombudsman understands this undertaking to include the basic requirement of fair administrative procedure that a person should have the right to submit observations before a decision affecting his or her interests is taken.

4.5 The Ombudsman notes that an opportunity for a complainant to submit observations necessarily includes, amongst others, the following elements:
(i) sufficient time in which to prepare and submit any observations.
(ii) sufficient information as to the basis of the proposed closure decision, so that the complainant may address the relevant issues in his observations.

4.6 In the present case, the Commission sent a letter just before the normal summer holiday season, informing the complainant of the proposed closure of the file and inviting him to submit additional elements. The Ombudsman notes that the Commission's letter did not establish any deadline for such submission: a reasonable time should therefore have been allowed. Furthermore, if the Commission wished to act quickly it would have been appropriate both to establish a deadline and to inform the complainant by a modern method of communication, rather than relying on the post. In these circumstances, the closure of the file a mere eight days after the complainant received the Commission's letter did not give the complainant sufficient time to submit observations.

4.7 The Ombudsman also recalls that the Commission failed to provide the complainant with adequate reasons for its proposed decision to close the file. The Commission did not, therefore, give the complainant a genuine opportunity to address all the relevant issues in his observations.

4.8 In view of the above, the Commission denied the complainant a fair opportunity to be heard before it closed the file on his complaint. This constitutes an instance of maladministration.

5 The allegation of excessive delay and lack of information.

5.1 The complainant alleged that he was not officially informed for 18 months (23 January 1997 to 30 July 1998) about the outcome of his complaint. The Commission gave details of the steps it took to keep the complainant fully informed of the progress of the case through several meetings in Brussels and telephone conversations with the Commission services during the course of 1997 and the beginning of 1998.

5.2 In the framework of the Ombudsman's own initiative inquiry into the Commission's administrative procedures for dealing with complaints concerning Member States' infringement of Community law (303/97/PD(12)), the Commission stated that the complainant is informed about the action taken in response to a complaint and that, under its rules of procedure, a decision to close the file on a complaint without taking any action must be taken within one year from the date on which the complaint was registered, except in special cases, the reasons for which must be stated.

5.3 The evidence available to the Ombudsman is that through meetings and telephone conversations, the Commission services kept the complainant informed about the progress of the case. In view of the fact that the case involved a voluminous file requiring complex technical and legal appraisal, the Commission could reasonably have considered this to be a special case justifying an inquiry longer than one year. The Ombudsman therefore finds no maladministration in relation to this aspect of the case.

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

1 The Ombudsman considers that the Commission's letter to the complainant, despite its complex drafting, is naturally to be understood as meaning that the Commission closed the case because it considered that there had been no infringement of Community law. The Ombudsman's finding, in paragraphs 2.6 and 2.7 above, is that this was not the reason for the Commission's decision to close the Thessaloniki Metro case. The Commission therefore failed to provide the complainant with adequate reasons for its decision to close the file on the complaint. This constitutes an instance of maladministration.

2 The Ombudsman notes that an opportunity for a complainant to submit observations necessarily includes, amongst others, the following elements:
(i) sufficient time in which to prepare and submit any observations.
(ii) sufficient information as to the basis of the proposed closure decision, so that the complainant may address the relevant issues in his observations.

In the present case, the Commission sent a letter just before the normal summer holiday season, informing the complainant of the proposed closure of the file and inviting him to submit additional elements. The Ombudsman notes that the Commission's letter did not establish any deadline for such submission: a reasonable time should therefore have been allowed. Furthermore, if the Commission wished to act quickly it would have been appropriate both to establish a deadline and to inform the complainant by a modern method of communication, rather than relying on the post. In these circumstances, the closure of the file a mere eight days after the complainant received the Commission's letter did not give the complainant sufficient time to submit observations.

The Ombudsman also recalls that the Commission failed to provide the complainant with adequate reasons for its proposed decision to close the file. The Commission did not, therefore, give the complainant a genuine opportunity to address all the relevant issues in his observations.

In view of the above, the Commission denied the complainant a fair opportunity to be heard before it closed the file on his complaint. This constitutes 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 has therefore decided to close the case.

FURTHER REMARKS

The Ombudsman notes that, if the letter by which the Commission informs a complainant of its decision to close the file on his complaint were considered as a decision addressed to the complainant, the Commission's failure to give the complainant a fair opportunity to be heard before it closed the file, as well as its failure to provide adequate reasons for the decision, could both provide grounds for annulment in this case.

The Ombudsman has, however, already mentioned the case law of the Court of Justice, which establishes that the Commission's discretionary power to decide whether or not to refer an infringement to the Court of Justice precludes the right of individuals to require the Commission to adopt a particular position and to bring an action for annulment against its refusal to take action(13).

The Ombudsman points out that the above-mentioned case law does not prevent the Commission from taking steps to avoid possible future cases of maladministration in its handling of complaints under Article 226. Specifically, the Ombudsman suggests that the Commission should consider establishing a clear procedural code for the treatment of such complaints, analogous to existing codes in relation to competition matters.

In the European Ombudsman's own initiative inquiry into the Commission's administrative procedures for dealing with complaints concerning Member States' infringement of Community law (303/97/PD(14)), the Commission already acknowledged that, in the period before judicial proceedings may begin, complainants enjoy procedural safeguards which the Commission has constantly developed and improved. The Commission also declared itself ready to continue along these lines.

In this respect, the Commission should particularly clarify the procedural aspects of the administrative stage preceding the eventual decision to issue the reasoned opinion which concludes the pre-litigation procedure.

The establishment of such a code would mark an important step towards making a living reality of the citizen's right to good administration, as recognised in the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000.

Yours sincerely,

Jacob SÖDERMAN

(1) Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, OJ 1993 L 199/54.

(2) 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.

(3) Officials and other servants of Community institutions and bodies must testify at the request at the request of the Ombudsman; they shall speak on behalf and in accordance with instructions from their administrations and shall continue to be bound by their duty of professional secrecy.

(4) See Case C-191/95, Commission v. Germany, [1998] ECR I-5449, paragraph 37 : "the Commission is competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations. Such a decision falls within the discretionary power of the institution. and cannot be described as a measure of administration or management".

(5) Case 48/65, Lütticke v Commission, [1996] ECR 19.

(6) See in particular case, 132/21.9.95/AH/EN (the M 40 Motorway case) reported in the Annual Report for 1996.

(7) Case C-191/95, Commission v Germany [1998] ECR I-5449, paragraph 46.

(8) Case 247/87 Star Fruit v Commission [1989] ECR 291; Case 87/89 Sonito v Commission, [1990] ECR-I 1981; Order of the Court of First Instance in Case T-182/97, Hubert Ségaud and Monique Ségaud v Commission 1998 ECR II-0271.

(9) Recommendation N° R (80)2 concerning the exercise of discretionary powers by administrative authorities, in "The administration and you, Principles of administrative law concerning the relations between administrative authorities and private persons, a handbook", Council of Europe Publishing, Council of Europe, 1996, p.362.

(10) 303/97/PD, reported in the European Ombudsman's Annual Report for 1997, pages 270-274.

(11) 303/97/PD, reported in the European Ombudsman's Annual Report for 1997, pages 270-274.

(12) 303/97/PD, reported in the European Ombudsman's Annual Report for 1997, pages 270-274.

(13) Case 247/87 Star Fruit v Commission [1989] ECR 291; Case 87/89 Sonito v Commission, [1990] ECR-I 1981; Order of the Court of First Instance in Case T-182/97, Hubert Ségaud and Monique Ségaud v Commission 1998 ECR II-0271.

(14) 303/97/PD, reported in the European Ombudsman's Annual Report for 1997, pages 270-274.