THE COMPLAINT

In 2004, the European Commission published a call for proposals within the framework of the programme "European Initiative for Democracy and Human Rights". The call for proposals concerned "Rehabilitation of victims of torture". It was foreseen that the activities to be supported by the Commission could take place in any country (with the exception of certain non-EU countries). The call for proposals (in the form it was given after a corrigendum had been issued) further provided as follows: "If the activities take place inside the EU, the rehabilitation activities need to be targeted on the victims coming from outside the EU or towards torture prevention in countries outside the EU."

According to the "Guidelines for grant applicants responding to the call for proposals for 2004" (the "Guidelines"), the procedure was to comprise two stages, namely (i) the submission of preliminary proposals and (ii) the submission of completed applications for a number of preselected applications (point 2.2). Preliminary proposals had to be submitted by 27 October 2004 at the latest. These applications were then to be checked by the Commission. Only the applicants that had submitted the best preliminary proposals were then to be invited to submit completed applications.

Point 2.2.1 of the Guidelines provided as follows: "Applicants must apply in English, French or in Spanish." It further provided that the applications had to be accompanied by (i) the statutes or articles of association of the applicant organisation, (ii) the applicant's most recent annual activity report and accounts, (iii) an external audit report (in case the grant requested exceeded EUR 300 000) and (iv) the legal entity sheet (a form supplied by the Commission) duly filled in. Points 2.2.1 of the Guidelines directed that originals of these documents needed to be submitted and that where these documents were drafted in a language other than the ones mentioned above, "a faithful translation into one of the latter must be attached".

The Guidelines further provided that questions could be sent to the Commission no later than 21 days before the deadline for the receipt of preliminary proposals and that a reply would be given no later than 11 days before that deadline.

The complainant, a German association that offers psychological treatment and social support to refugees and their families who are victims of torture, intended to submit an application in response to this call for proposals.

In an e-mail sent on 17 September 2004, the complainant explained that all the relevant documents that it needed to provide were only available in German and that a translation would be very costly and time-consuming. The complainant therefore asked whether the original versions would be acceptable and, if not, whether partial translations would be.

In its reply of 13 October 2004, the Commission pointed out that "you can send a partial translation, provided that the interesting part [sic] are translated: those referring to the status as ngo, and type of activities the organisation can undertake,...".

On 26 October 2004, the complainant informed the Commission that it needed time to produce these translations and therefore asked for an extension of time. According to the complainant, however, no reply was received from the Commission.

In its complaint to the Ombudsman, the complainant alleged that it had been clearly discriminated against compared to other competitors as a result of the Commission's demand that applications should be submitted in English, French or Spanish. According to the complainant, this condition was also contrary to the EC Treaty and to Regulation No 1 determining the languages to be used by the European Economic Community(2) ("Regulation 1/58").

Article 2 of Regulation 1/58 is worded as follows:

"Documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of the Community may be drafted in any one of the official languages selected by the sender. The reply shall be drafted in the same language."

The complainant further alleged that the Commission's failure to reply to its request for an extension of the deadline for the submission of applications constituted a lack of courtesy and thus a breach of the Commission's Code of Conduct.

The complainant claimed that all official languages of the EU should be accepted in future calls for proposals.

THE INQUIRY

In its opinion, the Commission submitted that it had always shown a strong commitment to linguistic diversity in the Community.

In so far as the translation of application forms was concerned, the Commission pointed out that this issue had already been addressed by its then President Prodi in his reply of 29 January 2002 to written question E-1479/01. This reply is worded as follows:(3)

"The Commission reaffirms its commitment to maintaining linguistic diversity in the Community as exemplified by the projects undertaken during the European Year of Languages in 2001.

Decisions and official documents relating to external aid, including the Manual of Instructions adopted by the Commission on 10 November 1999, are available in the eleven Community languages. Likewise, where at all possible, official documents relating to financing projects presented to the management committees, as is the case under the TACIS programme referred to by the Honourable Member.

In the case of the often lengthy invitations to tender and related documents for cooperation projects with third countries, it is not feasible — in view of the high cost in terms of financial and human resources and the extra time involved in providing external assistance — to work systematically in the national languages both of all the beneficiary countries and the Member States of the European Union. (...) Needless to say, the selections are made without any discrimination on grounds of nationality.

The Commission endeavours to take a pragmatic approach both in the interests of rapid and efficient action on its part and to ensure transparency and the widest possible access for the operators in question. It uses the Community languages which are current in international trade and in the countries in receipt of Community aid. For practical reasons, the Commission accepts that some annexes to the tenders be drafted in a language other than the Community language used in the invitations to tender and the reply form. And Commission staff are available to clarify any aspect of the procedure to be followed to the operators concerned.

(...)"

As regards the second allegation, the Commission stressed that the deadline had been fixed and that it had been impossible to grant exceptions. It also pointed out that the request for an extension had been rejected by e-mail sent the very same day, a copy of which it provided.

In view of the above, the Commission concluded that no maladministration had occurred.

In its observations, the complainant accepted that the Commission had shown that it had replied to its e-mail of 26 October 2004. The complainant added that it had not received this reply at the time, presumably due to technical reasons.

As regards the main part of its complaint, the complainant submitted that the Commission's opinion had confirmed that its complaint was justified. The complainant took the view that the Commission had failed, in the present case, to comply with the commitment to which it had referred in its opinion. It further stressed that the Commission had not proceeded in the way Mr Prodi had announced, given that it had not accepted annexes in other languages.

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

On 23 September 2005, the Ombudsman therefore asked the Commission to comment on the compatibility of the relevant language requirement with Article 21 of the EC Treaty and Regulation 1/58.

In its reply, the Commission pointed out that it was aware of Article 4 of Regulation 1/58, which provides that regulations and other documents of general application should be drafted in all the official languages, as well as of Article 21(3) of the EC Treaty, which foresees that every citizen of the Union may write to any of the Community institutions in one of the official languages and obtain an answer in the same language.

The Commission stressed that its statements, including that of Mr Prodi referred to above, had been made in full appreciation of this legal background. According to the Commission, however, these statements had taken into account the need to apply "a pragmatic rule of reason in the domain of external aid in order to find an adequate balance between the above legal requirements and the Commission's obligation to ensure a reliable, timely and high quality implementation of Community aid". The Commission underlined that the provision of external assistance was a policy central to the EU's role in the world and that it had to be implemented "in the context of limited financial and human resources for translation and tight procedural deadlines in the interest of final beneficiaries. If the Commission were to work systematically in the national languages both of all the beneficiary countries and the Member States of the EU, its mission would come to a grinding halt, given the constraints on financial and human resources.

The Commission also stressed that it was "of paramount importance that all documents are understandable in the recipient countries by both private and public partners there." It was for this reason that the Commission uses, as Mr Prodi had said, "the Community languages which are current in international trade and in the countries in receipt of Community aid". The Commission noted that the Guidelines had made it clear that eligibility was not limited to organisations within the EU, since suitable organisations outside the EU could also submit applications.

The Commission continued as follows:

"Intelligibility is a prerequisite to the ownership of projects by the partners in the recipient countries, without which such projects are bound to fail. As a corollary, the Commission bases itself on the principle that European operators who submit applications should be able to communicate in the Community language or languages commonly used in the third country or countries where their project is implemented. (...).

The Commission is of the opinion that the present practice is balanced since it seeks to guarantee the reasonable use of scarce translation resources in acknowledgement of the European institutions' responsibility towards the European taxpayer, without however compromising the transparency of the Commission's actions or the rights of the European citizens to adequate information. (...)"

In its observations, the complainant maintained its complaint. The complainant noted that the Commission had finally accepted that every EU citizen could turn to every Community institution and body in one of the official languages of the EU. It submitted that the present case had nothing to do with external assistance or projects in third countries. In the complainant's view, the Commission's comments were thus off the mark. The complainant pointed out that it considered this to be arrogant behaviour. It also noted that the Commission had sent its reply only on 5 December 2005, although the Ombudsman had asked it to do so by 31 October 2005. The complainant expressed the view that this "delaying tactic" might have as an aim to make EU citizens forego their right to complain to the Ombudsman.

On 31 March 2006, the Ombudsman addressed a second request for further information to the Commission, asking for a reply to the following questions:

(1) The Commission’s reply to the Ombudsman’s request for further information refers to finding an “adequate balance” between, on the one hand, the legal requirements of Regulation 1/58 and Article 21(3) of the EC Treaty and, on the other, the Commission's obligation to ensure a reliable, timely and high quality implementation of Community aid. Could the Commission please clearly state whether it considers, having regard to Regulation 1/58 and Article 21 of the EC Treaty in general and Article 2 of Regulation 1/58 in particular, that Community law entitles an applicant to use any official language in an application sent in reply to a call for proposals published by a Community institution?

(2) (a) If the answer to the above question should be negative, could the Commission please explain the reasons for its view?

(2) (b) If the answer to the above question should be positive, could the Commission please specify on what legal basis it considers that its “obligation to ensure a reliable, timely and high quality implementation of Community aid” could entitle it to limit the number of languages that can be used by applicants replying to a call for proposals?

(3) In its opinion, the Commission stated that its position concerning the relevant issue had been set out in the statement made by Mr Prodi on 29 January 2002. However, in this statement Mr Prodi had explained that " the Commission accepts that some annexes to the tenders be drafted in a language other than the Community language used in the invitations to tender and the reply form". Could the Commission please explain why the Guidelines for the call for proposals at issue in the present case nevertheless required a translation of all supporting documents into English, French or Spanish?

(4) The Commission stresses that it is important to ensure that all documents are understandable in the recipient countries. More generally, the Commission refers to the importance it attaches to external assistance and to the need of having regard to the interests of recipient countries. However, the present call for proposals provided that the activities to be supported could also take place inside the EU and that in that case "the rehabilitation activities need to be targeted on the victims coming from outside the EU or towards torture prevention in countries outside the EU". The call for proposals thus envisaged the possibility that the relevant activity could consist in providing care, within the EU, for victims of torture from countries where neither English, French nor Spanish is spoken. Against this background, could the Commission please explain why it was nevertheless considered necessary for applications to be submitted in English, French or Spanish?

(5) The present case concerns a project serving to help victims of torture, that is to say, a project that aimed at protecting and improving human rights. It thus did not concern trade issues. Furthermore, and as mentioned above, the activities to be supported could take place in the EU and benefit persons from countries where neither English, French nor Spanish is spoken. Could the Commission please explain why it was nevertheless considered necessary to limit the languages that could be used by applicants to "the Community languages which are current in international trade and in the countries in receipt of Community aid"?

In its reply, the Commission made the following comments:

The submission of documents in reply to a call for proposals by a Community institution takes place in the very specific context of the call for proposals. Neither Article 21 of the EC Treaty nor Article 2 of Regulation 1/58 concern specifically the rights of applicants in the context of calls for proposals by Community institutions.

In the context of a call for proposals, the Commission is inviting legal persons to enter into a contractual relationship with it for the implementation of actions. As a contractor, the Commission enjoys a margin of discretion as to the procedure to be followed and the subject-matter of the call. In this case, the Commission's decision to request the submission of applications in one of three languages fell within its discretion and was justified for objective reasons.

In line with Article 177 of the EC Treaty, the provision of external assistance was a policy central to the EU's role in the world. It had to be ensured in the context of limited financial and human resources for translation and tight procedural deadlines in the interest of final beneficiaries. If the Commission were to work systematically in all official languages of the EU in this area, the prolongation of the procedure for the delivery of external assistance would be so substantial that it would render the effective attainment of the objectives mentioned in Articles 177 of the EC Treaty impossible. The choice of French, English and Spanish for the purposes of the given call was rational since it sought to guarantee the rational use of scarce translation resources, taking account of the linguistic capacities of the human resources involved and in acknowledgement of the European institutions' responsibility towards the European taxpayer, without however compromising the transparency of the Commission's actions or the rights of the European citizens to adequate information.

The Commission did authorise the complainant, in accordance with its request, to present its supporting documents in German, accompanied by partial translations into English, Spanish or French for the pertinent parts within the deadlines defined in the Guidelines. However, the complainant did not submit any proposal for this call. The acceptance of a late submission would constitute a serious and unacceptable discrimination against the other applicants who had complied with the deadline.

The translation of supporting documents into one of the two or three languages used in the context of a call for proposals might be perceived as a burden by some NGOs. However, it should be noted that this had not prevented organisations from all eligible countries to participate in calls for proposals, and to reply within the specified deadlines.

The statement made by Mr Prodi left the acceptance of such enclosures to the discretion of the Commission on a case by case basis as justified by the circumstances. Therefore, it could not be interpreted as a derogation of the requirement to translate supporting documents as foreseen in the context of the present call for proposals.

The rule requiring translation of supporting documents into one of the languages of the call for proposals had never hindered applicants interested in participating to reply within the specified deadlines. The rationale of the said rule was primarily to facilitate the work of the members of the Evaluation Committees who have to pronounce themselves on the quality of the proposals, their eligibility and their administrative compliance. The members of these committees must be able to examine several hundreds of proposals received in the context of the calls for proposals for the thematic budget line regardless of their geographic scope.

In any event, the revised Practical Guide to contract procedures for EC external actions, which became applicable as of 1 February 2006, had in effect changed EuropeAid's linguistic regime applicable to supporting documents to be submitted by applicants in the context of open calls for proposals.

According to the new rules, applicants who have been provisionally selected or listed on the reserve list have to supply the supporting documents requested in the form of originals or photocopies of the said originals, and have the option of submitting them in any of the EU's official languages. Where these documents are in an official EU language other than the languages(s) of the call for proposals, it is strongly recommended, in order to facilitate the evaluation, to provide a translation, into one of the languages of the call for proposals, of the relevant parts of the documents proving the applicant's eligibility.

The Commission's reply was sent to the complainant for observations. However, no observations were received by the Ombudsman.

THE DECISION

1.1 In 2004, the European Commission published a call for proposals within the framework of the programme "European Initiative for Democracy and Human Rights". The call for proposals concerned "Rehabilitation of victims of torture". It was foreseen that the activities to be supported by the Commission could take place in any country (with the exception of certain non-EU countries). The call for proposals (in the form it was given after a corrigendum had been issued) further provided as follows: "If the activities take place inside the EU, the rehabilitation activities need to be targeted on the victims coming from outside the EU or towards torture prevention in countries outside the EU."

1.2 According to the "Guidelines for grant applicants responding to the call for proposals for 2004" (the "Guidelines"), the procedure was to comprise two stages, namely (i) the submission of preliminary proposals and (ii) the submission of completed applications for a number of preselected applications. Preliminary proposals had to be submitted by 27 October 2004 at the latest. These applications were then to be checked by the Commission. Only the applicants that had submitted the best preliminary proposals were then to be invited to submit completed applications.

1.3 Point 2.2.1 of the Guidelines provided as follows: "Applicants must apply in English, French or in Spanish." It further provided that the applications had to be accompanied by (i) the statutes or articles of association of the applicant organisation, (ii) the applicant's most recent annual activity report and accounts, (iii) an external audit report (in case the grant requested exceeded EUR 300 000) and (iv) the legal entity sheet (a form supplied by the Commission) duly filled in. Points 2.2.1 of the Guidelines directed that originals of these documents needed to be submitted and that where these documents were drafted in a language other than the ones mentioned above, "a faithful translation into one of the latter must be attached".

The Guidelines further provided that questions could be sent to the Commission no later than 21 days before the deadline for the receipt of preliminary proposals and that a reply would be given no later than 11 days before that deadline.

1.4 The complainant, a German association that offers psychological treatment and social support to refugees and their families who are victims of torture, intended to submit an application in response to this call for proposals.

1.5 In an e-mail sent on 17 September 2004, the complainant explained that all the relevant documents that it needed to provide were only available in German and that a translation would be very costly and time-consuming. The complainant therefore asked whether the original versions would be acceptable and, if not, whether partial translations would be. In its reply of 13 October 2004, the Commission pointed out that "you can send a partial translation, provided that the interesting part [sic] are translated: those referring to the status as ngo, and type of activities the organisation can undertake,...".

1.6 On 26 October 2004, the complainant informed the Commission that it needed time to produce these translations and therefore asked for an extension of time.

2.1 In its complaint to the Ombudsman, the complainant alleged that (1) it had been discriminated against as a result of the Commission's demand that applications should be submitted in English, French or Spanish and that this condition was also contrary to Community law. The complainant further alleged (2) that the Commission's failure to reply to its request for an extension of the deadline for the submission of applications constituted a lack of courtesy and thus a breach of the Commission's Code of Conduct.

The complainant claimed that all official languages of the EU should be accepted in future calls for proposals.

2.2 In its opinion on the complaint, the Commission stressed, as regards the second allegation, that the deadline for the submission of applications had been fixed and that it had been impossible to grant exceptions. The Commission also pointed out that the complainant's request for an extension had been rejected by e-mail sent the very same day, a copy of which it submitted to the Ombudsman.

2.3 In its observations, the complainant accepted that the Commission had shown that it had replied to its e-mail of 26 October 2004. The complainant added that it had not received this reply at the time, presumably due to technical reasons.

2.4 In view of the above, the Ombudsman considers that the complainant has thus effectively dropped the second allegation. Only the first allegation and the claim thus need to be examined here.

2.5 The first allegation comprises two parts, given that the complainant alleges (i) that it has been discriminated against and (ii) that the Commission's behaviour was unlawful. However, the Ombudsman notes that the complainant has essentially limited itself to contesting the legality of the Commission's behaviour and has not put forward any concrete arguments to establish the alleged discrimination. In effect, the complainant appears to argue that there has been discrimination since the Commission insisted that applications had to be submitted in one of three specific Community languages and could not be drafted in German. Given that the allegation of discrimination is thus closely linked to and based on the allegation of unlawful behaviour, the Ombudsman considers it appropriate to focus on the latter.

2.6 In its observations on the Commission's reply to the first request for further information, the complainant observed that the Commission had sent its reply only on 5 December 2005, although the Ombudsman had asked it to do so by 31 October 2005. The complainant expressed the view that this "delaying tactic" might have the aim to make EU citizens forego their right to complain to the Ombudsman.

2.7 It should be noted that on 19 October 2005, and thus before the expiry of the relevant deadline, the Commission had asked the Ombudsman for an extension of time until 25 November 2005. This request was granted by the Ombudsman on 4 November 2005, and the complainant was informed accordingly the same day. On 10 November 2005, the Commission informed the Ombudsman that there would be some further delay. As it turned out, the English original of the Commission's reply to the first request for further information was sent on 23 November 2005, and thus within the extended deadline. In these circumstances, the complainant's suspicion that the Commission might be pursuing a delaying tactic would appear to be unfounded.

3.1 The complainant alleged that the Commission's demand that applications should be submitted in English, French or Spanish was contrary to the EC Treaty and to Regulation No 1 determining the languages to be used by the European Economic Community(4) ("Regulation 1/58"). It claimed that all official languages of the EU should be accepted in future calls for proposals.

Article 21(3) of the EC Treaty provides as follows:

"Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language."

Article 314 of the EC Treaty mentions the 23 official languages of the EU.

Article 2 of Regulation 1/58 is worded as follows:

"Documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of the Community may be drafted in any one of the official languages selected by the sender. The reply shall be drafted in the same language."

3.2 In its opinion, the Commission submitted that it had always shown a strong commitment to linguistic diversity in the Community.

In this context, the Commission referred to the reply of 29 January 2002 that its then President Prodi had given to written question E-1479/01. This reply contains inter alia the following statements:

"In the case of the often lengthy invitations to tender and related documents for cooperation projects with third countries, it is not feasible — in view of the high cost in terms of financial and human resources and the extra time involved in providing external assistance — to work systematically in the national languages both of all the beneficiary countries and the Member States of the European Union. (...).

The Commission endeavours to take a pragmatic approach both in the interests of rapid and efficient action on its part and to ensure transparency and the widest possible access for the operators in question. It uses the Community languages which are current in international trade and in the countries in receipt of Community aid. For practical reasons, the Commission accepts that some annexes to the tenders be drafted in a language other than the Community language used in the invitations to tender and the reply form. And Commission staff are available to clarify any aspect of the procedure to be followed to the operators concerned."

3.3 In its observations, the complainant submitted that the Commission's opinion had confirmed that its complaint was justified. The complainant took the view that the Commission had failed to comply with the commitment to which it had referred in its opinion. It further stressed that the Commission had not proceeded in the way Mr Prodi had announced, given that it had not accepted annexes in other languages.

3.4 On 23 September 2005, the Ombudsman asked the Commission to comment on the compatibility of the relevant language requirement with Article 21 of the EC Treaty and Regulation 1/58.

3.5 In its reply, the Commission submitted the following arguments: (1) The provision of external assistance was a policy central to the EU's role in the world and had to be ensured in the context of limited financial and human resources for translation and tight procedural deadlines in the interest of final beneficiaries. If the Commission were to work systematically in the national languages both of all the beneficiary countries and the Member States of the EU, its mission would come to a grinding halt, given the constraints on financial and human resources. (2) It was of paramount importance that all documents are understandable in the recipient countries by both private and public partners there. It was for this reason that the Commission used, as Mr Prodi had said, the Community languages which are current in international trade and in the countries in receipt of Community aid. (3) As a corollary, the Commission based itself on the principle that European operators who submit applications should be able to communicate in the Community language or languages commonly used in the third country or countries where their project is implemented. (4) Its statements, including that of Mr Prodi referred to above, had been made in full appreciation of the relevant legal background. However, these statements had taken into account the need to apply "a pragmatic rule of reason in the domain of external aid in order to find an adequate balance between the above legal requirements and the Commission's obligation to ensure a reliable, timely and high quality implementation of Community aid". The present practice was balanced since it seeks to guarantee the reasonable use of scarce translation resources in acknowledgement of the European institutions' responsibility towards the European taxpayer, without however compromising the transparency of the Commission's actions or the rights of the European citizens to adequate information.

3.6 In its observations, the complainant submitted that the present case had nothing to do with external assistance or projects in third countries and that the Commission's comments were thus off the mark.

3.7 On 31 March 206, the Ombudsman asked the Commission to reply to a number of specific questions. In particular, the Ombudsman asked the Commission clearly to state whether it considered, having regard to Regulation 1/58 and Article 21 of the EC Treaty in general and Article 2 of Regulation 1/58 in particular, that Community law entitles an applicant to use any official language in an application sent in reply to a call for proposals published by a Community institution.

3.8 In its reply, the Commission submitted the following arguments: (1) The submission of documents in reply to a call for proposals by a Community institution takes place in the very specific context of the call for proposals. Neither Article 21 of the EC Treaty nor Article 2 of Regulation 1/58 concern specifically the rights of applicants in the context of such calls for proposals. In the context of a call for proposals, the Commission is inviting legal persons to enter into a contractual relationship with it for the implementation of actions. As a contractor, a margin of discretion as to the procedure to be followed and the subject-matter of the call. In this case, the Commission's decision to request the submission of applications in one of three languages fell within its discretion and was justified for objective reasons. (2) If the Commission were to work systematically in all official languages of the EU in this area, the prolongation of the procedure for the delivery of external assistance would be so substantial that it would render the effective attainment of the objectives mentioned in Articles 177 of the EC Treaty impossible. The choice of French, English and Spanish for the purposes of the given call was rational since it sought to guarantee the rational use of scarce translation resources, taking account of the linguistic capacities of the human resources involved. (3) The Commission did authorise the complainant, in accordance with its request, to present its supporting documents in German, accompanied by partial translations into English, Spanish or French. However, the complainant did not submit any proposal for this call. (4) The translation of supporting documents into one of the two or three languages used in the context of a call for proposals might be perceived as a burden by some NGOs. However, it should be noted that this had not prevented the organisations of all eligible countries to participate in calls for proposals. (5) The statement made by Mr Prodi left the acceptance of such enclosures to the discretion of the Commission. It could not be interpreted as a derogation of the requirement to translate supporting documents as foreseen in the context of the present call for proposals. (6) The rationale of the rule requiring translation of supporting documents into one of the languages of the call for proposals was primarily to facilitate the work of the members of the Evaluation Committees who have to pronounce themselves on the quality of the proposals, their eligibility and their administrative compliance. (7) In any event, the revised Practical Guide to contract procedures for EC external actions, which became applicable as of 1 February 2006, had in effect introduced changes in the relevant area. According to the new rules, applicants who have been provisionally selected or listed on a reserve list have to supply the necessary supporting documents, and have the option of submitting them in any of the EU's official languages.

3.9 The Commission's reply was forwarded to the complainant. No observations were received from the complainant.

3.10 The Ombudsman considers that the present case raises an important issue. Before addressing this issue, five preliminary remarks appear to be necessary.

3.11 First, the present case concerns the question whether the Commission is entitled to require applicants responding to a call for proposals to use a specific language or to choose from one of the languages determined by the Commission. The present case thus does not concern the issue as to whether the Commission is obliged to make the documents concerning a given call for proposals available in a specific language.

3.12 Second, the relevant linguistic requirement concerns the application in its entirety, i.e., the application as such and any supporting documents that need to be submitted. In its reply to the Ombudsman's second request for further information, the Commission has explained that supporting documents may now be submitted in any Community language(5). The Ombudsman considers that this change is certainly an improvement on the old rules. It should be noted that the new regime does not only make the linguistic requirement more flexible, but that the submission of supporting documents now appears to be demanded only of those applicants who have already been selected or preselected, whereas previously all applicants had to submit these supporting documents (in one of the languages foreseen by the call for proposals). The Ombudsman notes, however, that already in 2002 the then President of the Commission had declared that the Commission accepted that some annexes to tenders could be drafted "in a language other than the Community language used in the invitations to tender and the reply form". One wonders why it took the Commission more than four years to ensure that this approach is reflected in its guidelines for applicants concerning projects such as the one to which the present complaint refers. Incidentally, the Ombudsman notes that the new rules provide that where supporting documents are drafted in an official EU language other than the language(s) foreseen by the call for proposals, "it is strongly recommended, in order to facilitate the evaluation, to provide a translation of the relevant parts of the documents (...) into the/one of the language(s) of the call for proposals"(6). In view of this wording, it is not clear whether the new rules will in practice really result in a relaxation of the relevant linguistic requirement.

The Ombudsman considers, however, that there is no need to pursue these issues in the present case, since it is in any event clear that the changes only concern the supporting documents and that the Commission still requires applicants to submit their applications in the language(s) foreseen by the call for proposals.

.13 Third, regard should be had to the fact that the relevant calls for proposals address themselves to legal persons(7). However, Article 21 of the EC Treaty stipulates that the right to write to any of the institutions mentioned in Article 7 of the EC Treaty (including the Commission) in any of the official languages of the EU is given to every "citizen" of the Union. It is therefore doubtful whether this provision could be interpreted as extending to legal persons as well(8). However, given that the present case can be solved without recourse to Article 21(3), the Ombudsman considers that it is not necessary to examine this question in more detail in the present case.

3.14 Fourth, although the present case was triggered by a particular call for proposals, the complainant's claim concerns (future) calls for proposals in the area concerned in general. In what follows, the arguments put forward by the Commission will therefore be examined to ascertain their relevance both as regards the call for proposals at issue in the present case and as regards calls for proposals in general.

3.15 Fifth, the present complaint arose from a dispute concerning a call for proposals under the European Initiative for Democracy and Human Rights (the "EIDHR"). The Ombudsman notes that the EIDHR is based on two Regulations adopted by the Council in 1999(9). Given that the complainant's allegation concerned a specific call for proposals under the EIDHR, the Ombudsman considers that the complainant's claim must also be understood as relating to future calls for proposals under the EIDHR. The present draft recommendation therefore concerns only calls for proposals under the EIDHR.

3.16 As mentioned above, the issue to be examined here is whether the Commission is entitled to require applicants responding to a call for proposals in the field of external assistance to use a specific language or to choose from one of the specific languages determined by the Commission. In the Ombudsman's view, this question is dealt with by Regulation 1/58. According to Article 2 of this Regulation, "[d]ocuments which (...) a person subject to the jurisdiction of a Member State sends to institutions of the Community may be drafted in any one of the official languages selected by the sender." It should be noted that at least until 2004, Regulation 1/58 was regularly updated in order to take account of the accession of new Member States and the consequent addition of further official languages. There is therefore no doubt that this Regulation continues to be applicable.

The complainant is a legal person set up in Germany and is thus subject to the jurisdiction of this Member State. Since Article 2 of Regulation 1/58 is clearly applicable to legal persons, the complainant would thus have been entitled to submit its application in German or any other of the official EU languages. The current practice of the Commission concerning calls for proposals under the EIDHR is thus not in conformity with Community law, unless (i) Article 2 of Regulation 1/58 did not apply to the sector concerned or (ii) there are valid reasons justifying a derogation from this rule.

3.17 The Commission has argued that the submission of documents in reply to a call for proposals by a Community institution takes place in the very specific context of this call for proposals and that Article 2 of Regulation 1/58 does not apply in this context. The Ombudsman notes, however, that Regulation 1/58 was adopted on the basis of Article 290 of the EC Treaty. This provision is worded as follows:"The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously." Given that Article 290 belongs to the "General and final provisions" (Part VI) of the EC Treaty, the Ombudsman considers that Regulation 1/58 sets out the general rules concerning the use of languages by or towards the institutions of the Community. This conclusion is confirmed by the general wording of the provisions set out in Regulation 1/58. Any limitation of the scope of application of this provision would thus have to be established by the institution invoking such a limitation. The Ombudsman notes, however, that the Commission has not referred to any other provision from which it could be deduced that Article 2 of Regulation 1/58 is not applicable to the replies to be given to a call for proposals under the EIDHR.

3.18 The Commission has put forward a number of arguments to support its view that it is entitled to limit the number of languages that applicants can use when replying to calls for proposals concerning the provision of external assistance. It is therefore necessary to examine these arguments, to the extent that they concern calls for proposals under the EIDHR. Since the complainant's claim, as mentioned above (point 3.14), does not only concern the call for proposals in which it wished to take part but also calls for proposals under the EIDHR in general, the following examination will, where this is necessary, distinguish between these two aspects.

3.19 It appears that the Commission's arguments can be summarised as follows: (i) applicants should be able to master the languages required by the Commission; (ii) it is necessary to ensure that projects are understood in recipient countries; (iii) the organisation of such calls for proposals involves a margin of discretion; (iv) the decision to require applicants to use the Community languages which are current in international trade and in the countries in receipt of Community aid is reasonable; (v) the linguistic requirements have not made it impossible for applicants to respond to such calls for proposals; (vi) working in all Community languages would be impracticable in the field of external assistance. The Ombudsman cannot exclude that other considerations may be relevant in this field. However, his examination must obviously be limited to the arguments actually submitted to him by the Commission.

3.20 Through Article 2 of Regulation 1/58, the Community legislator has given persons subject to the law of a Member State the right to decide which of the official languages of the EU they wish to use when addressing themselves to the institutions of the Community. In light of this decision adapted by the Community legislator, the Ombudsman takes the view that any limitations of this right must be based on valid reasons, must be necessary for the attainment of the legitimate aim pursued and must be proportionate. It therefore needs to be examined whether the Commission has established that this is the case as regards the call for proposals in which the complainant wished to take part and as regards calls for proposals under the EIDHR in general.

3.21 The Commission has suggested that applicants should be able to communicate in the Community language or languages commonly used in the third country or countries where their project is implemented. It is obvious that this argument is utterly unconvincing in the present case, where the project was to be carried out in Germany by a German NGO that wished to provide an application drafted in German.

As regards calls for proposals under the EIDHR in general, and thus also cases where projects are to be carried out in third countries, it appears useful to add that the Commission's assumption does not as such constitute a valid reason for obliging applicants to use a certain language or one of a specific number of languages for their applications. Article 2 of Regulation 1/58 gives persons subject to the jurisdiction of the Member States the right to use any of the official languages of the EU when addressing themselves to the Commission. An applicant is therefore entitled to use a language of his own choice even if it masters the language or the languages foreseen in a call for proposals.

3.22 The Commission has furthermore stressed that it considers it important "that all documents are understandable in the recipient countries by both private and public partners there". The Ombudsman agrees that where a project is to be carried out in a given country and for the benefit of the population of this country, it is useful to ensure that the beneficiaries and the project partners in that country understand the purpose and the contents of the project. He considers, however, that the Commission has not been able to explain why this consideration made it necessary to require applications to be submitted in English, French or Spanish in the call for proposals that gave rise to the present case. As mentioned above, the complainant's project was to be carried out in Germany. Furthermore, the call for proposals envisaged the possibility that a project could consist in providing care, within the EU, for victims of torture from countries where neither English, nor French or Spanish is spoken. In his second request for further information, the Ombudsman therefore asked the Commission to explain why it was nevertheless considered necessary for the application to be submitted in English, French or Spanish. The Ombudsman notes that the Commission's reply to this question refrained from addressing this issue.

As regards calls for proposals in general, the Ombudsman is not convinced that the aim of informing beneficiaries or partners in the country concerned makes it necessary for all applications and supporting documents to be drafted in certain EU languages. In its reply to the second request for further information, the Commission has in effect admitted (at least in so far as the supporting documents are concerned) that the rationale of the relevant linguistic requirement was primarily to facilitate the work of the members of the Evaluation Committees. It appears, however, that applications are evaluated by the Commission itself or by persons appointed by the Commission(10). Furthermore, the Commission has adopted a two-tier procedure, pursuant to which only preselected applicants will be invited to submit complete applications. The Ombudsman therefore fails to understand why all applications (and thus also those that are not selected for the submission of a complete application) should need to be submitted in certain languages. On the basis of the logic developed by the Commission, it would be sufficient so to oblige those applicants whose projects are selected for a grant to ensure that their projects can be understood by beneficiaries and project partners in the country concerned. In any event, the Ombudsman is not convinced that the need to enable the beneficiaries of a project understand the purpose of the latter makes it necessary to oblige applicants to submit supporting documents such as articles of association and audit reports in a specific language.

3.23 The Commission furthermore argues that it enjoys a certain margin of discretion as regards the procedure to be followed concerning such calls for proposals. The Ombudsman considers it obvious that any such discretion can only exist and be exercised within the limits determined by the legislator. As mentioned above, however, Article 2 of Regulation 1/58 clearly entitles applicants to use a Community language of their own choice when addressing themselves to the Commission. The Ombudsman therefore considers that any discretion the Commission may enjoy in this field cannot entitle it to derogate from this provision.

3.24 The Commission also submits that the decision to require applicants to use the Community languages which are current in international trade and in the countries in receipt of Community aid is reasonable. This statement covers two aspects, namely the usage of Community languages that are current in international trade and the usage of the Community languages that are current in the recipient countries. As regards the first aspect of this argument, the Ombudsman does not exclude that it may be relevant in the field of external assistance in general. However, the Ombudsman fails to see why NGOs wishing to carry out projects under the EIDHR, and thus in the field of human rights, need to be familiar with the languages that are current in international trade. As regards the second aspect, it is true that an applicant wishing to carry out a project in a certain country must be able to implement its project in a language that is easily understood in that country. However, whereas this issue can and must be considered when examining proposals, this does not mean that an NGO must necessarily submit its proposal in that language. The Ombudsman considers that the present call for proposals clearly confirms this view. To take a hypothetical example, a proposal for a project in a country in Latin America that was to be carried out in Spanish would have been eligible if it had been submitted in English by an NGO from the United Kingdom. In other words, the application would have been eligible even though it was not presented in a language that was current in the recipient countries.

3.25 As regards the Commission's argument that its linguistic requirement has not prevented applicants to participate in calls for proposals, the Ombudsman notes that the complainant's case confirms that this requirement can be an obstacle to potential applicants. He furthermore considers that it is impossible to tell how many potential applicants may have decided not to apply because they were dissuaded by the need to use certain languages. In any event, the Ombudsman considers that a practice that is not in conformity with Community law cannot be justified by the mere fact that it has been complied with by applicants who may have considered that they did not have any choice.

3.26 The argument to which the Commission visibly attaches most importance concerns the practical consequences of admitting applications in all official EU languages. The Ombudsman notes that, in its reply to the first request for further information, the Commission expressed the fear that its mission (in the field of development cooperation) would come to a "grinding halt" if it were to work systematically in the national languages both of all beneficiary countries and the EU Member States.

3.27 To begin with, it appears useful to point out that this vision is based on an incorrect premise, given that the issue is whether applicants should be able to address themselves to the Commission in any of the official languages of the EU, not in those of any third country. The Ombudsman also notes that the Commission's prediction is not backed up by any concrete, tangible evidence. In view of this, the Ombudsman is not convinced that the dramatic scenario outlined by the Commission is realistic. It should further be stressed again that the present case only concerns calls for proposals under the EIDHR, and not the field of external assistance as a whole.

3.28 Notwithstanding the above, the Ombudsman is of course conscious of the fact that the need to deal with applications in all official EU languages is likely to put a serious strain on the Commission's financial and staff resources. As mentioned above, the EU now has no fewer than 23 official languages. The Ombudsman is also conscious of the fact that this could risk slowing down the implementation of the projects concerned, to the disadvantage of the final beneficiaries.

3.29 The Commission has argued that limiting the languages that can be used by applicants seeks to guarantee the rational use of scarce translation resources, taking account of the linguistic capacities of the human resources involved and acknowledging the European institutions' responsibility towards the European taxpayer. It has further submitted that its approach constituted a pragmatic rule of reason in the domain of external aid in order to find an adequate balance between the relevant legal requirements and the Commission's obligation to ensure a reliable, timely and high quality implementation of Community aid.

3.30 The Ombudsman recognises that cost considerations may constitute a serious, even compelling reason to limit the number of languages in calls for proposals. However, given that the right to use any Community language is granted by Article 2 of Regulation 1/58, any limitation of this right would in the Ombudsman's view necessitate a legislative act.

To the extent that the Commission invokes internal problems and reasons of expediency in order to support its position, the Ombudsman takes the view that such considerations cannot suffice to entitle the Commission to disregard its legal obligations under Article 2 of Regulation 1/58, unless the internal problems were indeed insurmountable. In the Ombudsman's view, it has not been shown that this was the case, either as regards call for proposals in which the complainant intended to take part or as regards the calls for proposals under the EIDHR in general. The Ombudsman is not convinced that the Commission would face an intolerable burden if it was forced to translate applications submitted in other Community languages into those languages its staff masters. It is true that the need to proceed to a translation of a document generates extra costs. However, and as already mentioned, any such costs would arise from the need to comply with Article 2 of Regulation 1/58, i.e., a deliberate decision of the legislator in favour of linguistic diversity. Furthermore, the Commission is clearly able to minimise these costs by ensuring, through an appropriate recruitment policy, that its staff in the service concerned comprises officials who master languages other than English, French and Spanish.

3.31 The Ombudsman notes, however, that the Commission also invoked the need to ensure a reliable, timely and high quality implementation of Community aid. In the Ombudsman's view, the interests of the beneficiaries of the projects under the EIDHR obviously play an important role in this context.

3.32 It cannot be excluded that there could be cases where it is important to ensure that projects under the EIDHR are carried out as rapidly as possible. In such cases, the urgency might entitle the Commission to require applicants to use a particular language for their proposals, in order to ensure that applications are dealt with as quickly as possible and that the project is carried out in good time. The Ombudsman notes, however, that the Commission has not argued that there was any such urgency in the present case. He further takes the view that it cannot seriously be argued that all calls for proposals under the EIDHR are so urgent that it would be imperative to limit the right given to applicants by Article 2 of Regulation 1/58 to use a Community language of their choice.

3.33 It appears that certain calls for proposals under the EIDHR envisage action that focuses on a specific country. The Ombudsman acknowledges that in such cases, there would be a certain logic in asking applicants to use the language that will have to be used for the implementation of their projects already when submitting their proposals, at least in so far as the description of the project (as opposed to supporting documents) is concerned. Any such limitation would have to be justified and explained by the Commission on the basis of the individual circumstances of a given call for proposals. However, it emerges from the submissions submitted by the Commission that the latter limits the number of languages that can be used by applicants in all calls for proposals under the EIDHR, i.e., irrespective of any examination as to whether there is a compelling reason for doing so in a given case. The Ombudsman takes the view that since Article 2 of Regulation 1/58 gives applicants the right to use any Community language when addressing Community institutions, a general limitation of the languages that can be used when submitting proposals for projects under the EIDHR, such as the Commission appears to practice it, would require a decision to that effect to be taken by the Community legislator.

As mentioned above, the EIDHR is based on two Regulations adopted in 1999. The Ombudsman notes that both Regulations were amended in 2004, following proposals made by the Commission. If the Commission were to consider that there are compelling reasons for limiting, on a general basis, the number of languages that can be used when submitting proposals under the EIDHR, it would thus have the possibility to submit a proposal to that effect to the Community legislator.

3.33 In view of the above, the Ombudsman arrives at the conclusion that the Commission's insistence that English, French or Spanish be used for applications under the call for proposals concerning "Rehabilitation of victims of torture" constituted an instance of maladministration.

3.34 The Ombudsman furthermore concludes that the Commission has not been able to show that it would be justified to restrict, on a general basis, the number of languages that can be used as regards replies to calls for proposals under the EIDHR. Subject to any valid reasons that could justify such a restriction in individual cases, and as long as the Community legislator has not decided otherwise, applicants should therefore be free to use any Community language they choose, as foreseen by Article 2 of Regulation 1/58. It appears useful to add, however, that Article 2 of Regulation 1/58 only concerns persons "subject to the jurisdiction of a Member State" and thus does not extend to applicants from third countries.

In view of the above, the Ombudsman makes the following draft recommendation to the Commission, in accordance with Article 3(6) of the Statute of the Ombudsman:

The Commission should avoid, in future calls for proposals under the European Initiative for Democracy and Human Rights, any unjustified restrictions on the official languages in which proposals may be submitted.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 30 June 2007. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 26 March 2007

P. Nikiforos DIAMANDOUROS

(1) 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) Official Journal 1958, p. 385.

(3) Official Journal 2002 C 147 E, p. 3-4.

(4) Official Journal 1958, p. 385.

(5) In its reply, which was sent in July 2006, the Commission referred to the revised Practical Guide to contract procedures for EC external actions that became applicable as of 1 February 2006. It appears that this version has since been replaced by another version that is dated 22 August 2006. Both versions are available on the website of the Commission's Directorate-General EuropeAid (http://ec.europa.eu/europeaid/tender/gestion/index_en.htm). The relevant "Guidelines" are to be found in Annex E of this document. Having examined the two versions, the Ombudsman finds that they do not differ as regards the point to be discussed here.

(6) Point 2.4 of the revised "Guidelines".

(7) This requirement is clearly set out both in the Guidelines concerning the call for proposals in which the complainant wished to take part and in the revised Guidelines of 2006.

(8) Such an interpretation is advocated for example by Haag (in: von der Groeben/Schwarze (ed.), Kommentar zum Vertrag über die Europäische Union und zum Vertrag über die Gründung der Europäischen Gemeinschaft, Article 17 EC, point 11).

(9) Council Regulation (EC) No 975/1999 of 29 April 1999 laying down the requirements for the implementation of development cooperation operations which contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms (OJ 1999 L 120, p. 1), as amended by Regulation (EC) No 2240/2004 of the European Parliament and the Council of 15 December 2004 (OJ 2004 L 390, p.3); Council Regulation (EC) No 976/1999 of 29 April 1999 laying down the requirements for the implementation of Community operations, other than those of development cooperation, which, within the framework of Community coperation policy, contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms in third countries (OJ 1999 L 120, p. 8), as amended by Council Regulation (EC) No 2242/2004 of 22 December 2004 (OJ 2004 L 390, p. 21).

(10) See point 2.3 of the Guidelines concerning the call for proposals that gave rise to the present complaint: "Applications will be examined and evaluated by the EC with the possible assistance of external assessors".