Background to the complaint

1. The complainant was engaged by a contractor that had entered into a service contract with the EU Delegation to Sierra Leone and was to provide technical assistance in Sierra Leone in the areas of civil service reform, parliament and the electoral cycle. In May 2018, she began work as a key expert supporting the implementation of the electoral cycle component of the project, which was financed by EuropeAid.

2. On 5 December 2018, the Delegation sent to the contractor a letter in which it expressed concerns about the complainant’s work on the project and urged the contractor to address the situation as a matter of urgency. In the letter, the Delegation stated, among other things, that “on the basis of feedback received from [a beneficiary institution’s] management, we are also concerned that the expert may not yet have developed a relationship of trust with the latter.” On 13 December 2018, the contractor terminated the complainant’s contract.

3. According to the complainant, her contract was terminated without any fault on her part. The complainant provided proof of the fact that the beneficiary institution had validated the activities proposed in her inception report^[1]. She had also received an email from the Head of the Training Department of the beneficiary institution, which stated: “I read your mail with mixed feelings but deep appreciation of your invaluable role you played since you have been with us ...”.

4. The complainant wrote to the Head of Delegation and urged him to get in touch with the beneficiary institution to confirm that it was happy with the complainant’s work.

5. Before the complainant’s contract was terminated, she had contacted the European External Action Service (EEAS) on 11 December 2018, requesting its assistance. She complained about an EU official’s complicity in harassment by a third party^[2] and the EU official’s abuse of power, since he refused to validate her inception report. The Head of Delegation replied to the complainant on 28 March 2019 but did not address this aspect of the complainant’s e-mail. With regard to the issue of the termination of the contract, the Head of Delegation considered that, since the complainant was not an EU staff member, this was a matter to be dealt with by the contractor’s management. He stated that the Delegation had acted in compliance with its obligations stemming from the General Conditions of the Contract.

6. Since she was dissatisfied with the reply, the complainant turned to the Ombudsman.

The inquiry

7. The Ombudsman opened an inquiry into the Commission’s alleged failure to deal properly with the complainant’s request for assistance of 11 December 2018^[3]. The Ombudsman asked the Commission to inform her:

1) on what basis the Delegation had made the statement, in the letter of 5 December 2018, that the complainant had not yet developed a relationship of trust with the management of the beneficiary institution;

2) whether the Head of Delegation had followed up on the complainant’s request that he contact the beneficiary to receive confirmation about whether it was happy with the complainant’s work;

3) about its views on the complainant’s allegations, in her email of 11 December 2018, that the alleged psychological harassment by a third party within the contractor’s team had been carried out “in alignment with [an EU official] in Sierra Leone...” and that “one person at the [Delegation] block[ed] the validation of a report without any internal contro[l] from the EU”;

4) whether it considered that it would have been appropriate to ask the contractor to provide its and the complainant’s observations on the content of the Delegation’s letter of 5 December 2018. The Ombudsman noted that this is required (in the case of requests for the replacement of experts) by Article 17(2) of the General Conditions for Service Contracts^[4] and point 3.4.13 of the Practical Guide on contract procedures for European Union external action (PRAG)^[5].

8. In the course of the inquiry, the Ombudsman received the reply of the Commission on the complaint and, subsequently, the comments of the complainant in response to the reply.

Arguments presented to the Ombudsman

The Commission’s arguments

9. The Commission explained why the Delegation sent the letter of 5 December 2018 to the contractor and why it had reservations about the work carried out by the complainant as a key expert.

10. The Commission stated that one of the main tasks of the complainant as a key expert was to submit an inception report, which included work plans. The Delegation was not satisfied with the first version of the report and thus made comments and suggestions for its revision. However, the revised version did not take fully into account its recommendations and did not aim at delivering long-term capacity support to the beneficiary, as the Delegation expected. Therefore, it considered this to be a shortcoming in the implementation of the contract. This was the main reason why it sent the letter of 5 December 2018. However, there were other aggravating circumstances, which are outlined in the next two paragraphs.

11. In a meeting held in November 2018 with the Executive Secretary of the beneficiary institution on the implementation of the project, the Delegation was told that the complainant did not sufficiently involve the management of the beneficiary “in the elaboration of the work plan for the capacity building activities, with the result of weakening the effectiveness of the EU post electoral support”. This meeting occurred one month after the beneficiary had validated the main components of the draft inception report and after the submission of the revised report. Moreover, according to the Commission, the beneficiary “expressed reservations concerning the performance of the complainant”. In the same period, the Delegation also became aware that the complainant had failed to build a relationship of trust with other partners in the field.

12. Moreover, the Delegation noted that the draft inception report submitted by the complainant contained parts on which her team leader disagreed. In view of the foregoing, the Delegation decided to inform the contractor of its concerns in order for the contractor to “address the situation” and to “ensure the implementation of the tasks under the contract”.

13. The Commission further argued that it never suggested the termination of the complainant’s contract and, for this reason, it could not be held responsible for it, since this was a decision of the contractor. Therefore, in the Commission’s view, Article 17(2) of the General Conditions of the contract does not apply. The Commission contended that there was no contractual link between the complainant and the Commission because the Commission had a contractual relationship with the contractor only.

14. With regard to the harassment allegations, the Commission stated that the complainant had never provided information or evidence allowing it to conclude that she was a victim of harassment or that a staff member of the Commission was complicit in the harassment by a third party and hampered the approval of the report. Email exchanges between the complainant and the third party, in which EU staff members were in copy, did not show any behaviour of this sort.

15. The Commission also contended that the EU official in question cannot be “accused of any harassment vis-à-vis the complainant” or of misuse of power because of the fact that he asked the contractor to address the situation after his remarks were not taken into account in the second draft inception report. He was simply performing his tasks and acted in full compliance with his duties and responsibilities under the Financial Regulation.

The complainant’s comments

16. The complainant claimed that the third party insulted her by e-mail several times, including in e-mails in which other people and the Delegation’s staff were in copy. She added that she was prevented from communicating with the Delegation by her superior. She was thus unable to inform the Delegation earlier about the harassment.

17. She reiterated that, in her view, the beneficiary institution was happy with her work and plan of activities. She also contended that she took into consideration all the comments of the EU Delegation in a third version of the report dated 24 November 2018.^[6] She argued that the Commission had based its comments to the Ombudsman on a previous version of the report, dated 20 November 2018. Therefore, in her view, it had based its assessment on incomplete information.

The Ombudsman's assessment

18. As a preliminary point, it should be noted that the complainant has not provided evidence to prove that the Commission was ever made aware of the third version of the inception report that she sent to her team leader and other colleagues in the contractor’s team. Therefore, if it is the case that the Commission based its assessment on incomplete information because the contractor did not provide it with that information, the Commission cannot be held responsible for that.

19. The Ombudsman notes the Commission’s detailed explanation of the reasons why the Delegation sent the letter of 5 December 2018. The Commission has provided a complete picture of the context in which the letter was written and has provided convincing reasons for its position, which the Ombudsman finds reasonable.

20. The Ombudsman notes that, even if the complainant was praised by a member of the beneficiary’s team in an email, the fact remains that the overall feedback about the complainant which the Delegation received from the beneficiary was quite negative.

21. Moreover, as correctly explained by the Commission, the Delegation, as the contracting authority, is responsible, under the Financial Regulation, for validating and authorising expenditure under the contract in question. Any such validation and authorisation implies that the Delegation is acknowledging that underlying services have been properly provided. The Delegation therefore has the duty to monitor the implementation of the contract and, as a consequence, the contractor’s work, including any reports, even if the beneficiary has approved the activities proposed in a report.

22. Furthermore, according to Article 27 of the service contract between the Delegation and the contractor, the Delegation is obliged to “notify the contractor of its decision concerning the documents or reports received by it, giving reasons should it reject the reports or documents, or request amendments”. On this basis, the Ombudsman takes the view that the Delegation cannot be accused of having hindered the approval of the report, since it is within the powers of the contracting authority to request amendments. The Ombudsman notes that the Delegation also provided reasons for and comments on the requested amendments.

23. In addition, the Ombudsman considers that the complainant’s argument about an EU official’s complicity in harassment by a third party is unsubstantiated. Although the complainant claimed that a number of people were in copy of emails in which she was allegedly addressed disrespectfully by her team leader, the complainant has not provided any evidence to show that EU staff members were among the recipients of those emails or that an EU staff member was complicit in any alleged harassment.

24. Finally, the Ombudsman agrees with the Commission that the Delegation’s letter of 5 December 2018 did not include a request for the complainant’s contract to be terminated. Since the Commission clearly agrees that, had its letter included a request to replace the complainant, it would have needed to hear her on the basis of Article 17.2 of the General Conditions, the Ombudsman closes this aspect of the case as well.

25. In light of the above, the Ombudsman finds that there was no maladministration in the manner in which the Commission handled this case.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration in the European Commission’s handling of the complainant’s request for assistance.

The complainant and the European Commission will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 02/04/2020

 

[1] The complainant sent a copy of a letter from the Executive Secretary of the beneficiary institution to the Ambassador of the EU Delegation of 30 October 2018. The letter states: “... I am directed to inform you that the [beneficiary institution] has validated all the components in the proposal submitted specifically under mentioned key objectives:

1. To increase Institutional, staff and Infrastructural capacity.

2. To support the legal reform process governing elections...”

[2] The third party was the team leader of the project who was engaged by the same contrator that engaged the complainant. The complainant claimed that the EU official was aware of the alleged harassment and failed to do anything about it.

[3] The EEAS had forwarded the complainant’s request for assistance to the Commission for the Commission to handle it.

[4] Article 17.2 of the General Conditions for Service Contracts for External Actions Financed by the

European Union or by the European Development Fund provides that “... in the course of performance,

and on the basis of a written and justified request to which the Contractor shall provide its own and the

agreed personnel's observations, the Contracting Authority can order an agreed personnel to be

replaced”.

[5] Point 3.4.13 of the PRAG states as follows: “... The contractor must be asked to provide his own and

the staff member’s observations to [a] request [for a replacement of an expert]”.

[6] The complainant provided evidence of an e-mail she sent on 24 November 2018, which contained the final revised report. However, the addressees of the e-mail were her colleagues in the contractor’s team. No staff memebrs of the Delegation were in copy of this version of the report.