Commission agrees to modify the Early Warning System

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  • Case: OI/3/2008/FOR
    Opened on 29 Oct 2008 - Draft recommendation on 16 Dec 2011 - Decision on 06 Jul 2012
  • Institution(s) concerned: European Commission
  • Field(s) of law: Law relating to undertakings
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB],Right to be heard and to make statements [Article 16 ECGAB],Requests for information [Article 22 ECGAB]
  • Subject matter(s): Execution of contracts
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Summary of the decision on complaint OI/3/2008/FOR against the European Commission

The European Commission's Early Warning System ('EWS') is a computerised information system which seeks to identify "threats" to the EU's financial interests and reputation. For example, the EWS allows Commission staff involved in tender procedures to check whether any tenderers are suspected of fraud. After receiving several complaints about the operation of the EWS, the Ombudsman launched an inquiry, including a public consultation to which many stakeholders contributed. Among the concerns raised in the consultation was the fact that individuals and companies are not systematically informed that they have been listed in the EWS. Participants also argued that there was a lack of clarity on how to lodge an appeal against such a listing.

In its opinion, the Commission confirmed that entities listed in the EWS are not normally informed of this fact. It moreover acknowledged that the system has no formal appeals mechanism.

The Ombudsman concluded that the scope of certain EWS warnings is not clearly defined. He also called on the Commission to guarantee the right to be heard before any decisions to include persons or companies in the EWS are taken. Further, the right of access to the file should be respected. In addition, affected persons or companies should be informed of their right to complain to the Ombudsman or to seek judicial redress.

In its reply to the draft recommendation, the Commission stated that it aims to present a revised EWS decision in 2013. Such a revised decision will be prepared, in light both of the Ombudsman's draft recommendation and the outcome of an appeal to the Court of Justice in the Planet case (which concerns the EWS).

The Ombudsman closed his inquiry on the basis of the Commission's commitment to reform the EWS. However, he made a further remark calling on the Commission to ensure that it also takes steps to protect fundamental rights in the period before the EWS is reformed.