Strasbourg, 16 July 2007

Dear Mr K.,

On 19 June 2006, you filed with the European Ombudsman a complaint against the European Commission.

On 17 July 2006, my services contacted the Commission, in relation to the part of your complaint concerning its failure to reply to your fax-"business proposal" of 26 April 2006 and to subsequent correspondence. The Commission sent you its reply on 3 August 2006. You then complemented your complaint by e-mails of 17 August and 4 September 2006. On 22 September 2006, I asked the Commission to submit an opinion on your allegation that it had failed to reply in a timely manner to the substance of your fax-proposal of 26 April 2006 and to your subsequent correspondence.

The Commission sent its opinion on 21 December 2006. I forwarded it to you with an invitation to make observations. You replied to this invitation by e-mail of 26 January 2007, complemented by subsequent e-mails.

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

THE COMPLAINT AND SUBSEQUENT DEVELOPMENTS

In his complaint, the complainant made, in summary, the following submissions as regards the factual background of the case. On 26 April 2006, he faxed to President Barroso a report ("business proposal") "for the better Commercialisation of the EU". On 2 May 2006, President Barroso's cabinet acknowledged receipt of this letter and informed the complainant that his letter had been brought to the attention of the responsible and relevant Commission services for further consideration. Then the complainant addressed to the Commission several documents which the Commission ignored and did not even send an acknowledgement of receipt.

The content of this correspondence can be summarised as follows:

(a) Fax of 9 May 2006 addressed to President Barroso: The complainant referred to the acknowledgement of receipt of his fax of 26 April 2006 which he had received from President Barroso's cabinet; interpreted this document as acceptance of his proposal(1); stated that he expected to receive a formal acceptance of his proposal and a financial consideration and timetable of the completion of the relevant tasks; and invited comments on the project, in view of its implementation.

(b) Email of 16 May 2006 to President Barroso (and email-reminder of 17 May 2006): The complainant indicated that he had received no acknowledgement of receipt of, or reply to, his fax of 9 May 2006.

(c) Fax of 24 May 2006 to President Barroso (and email-reminder of 24 May 2006): The complainant indicated that he had received no acknowledgement of receipt of, or reply to, his fax of 9 May 2006 and email of 16 May 2006.

(d) Email of 1 June 2006 to President Barroso (and fax-reminder of 17 May 2006): The complainant indicated that he had received no acknowledgement of receipt of, or reply to, his correspondence of 9 May 2006, 16 May 2006 and 24 May 2006. He also asked to receive by 9 June 2006 a "confirmation" (signed by President Barroso) concerning non-infringement of his rights regarding the proposal he had submitted to the Commission.

On 19 June 2006, the complaint lodged a complaint with the Ombudsman. The complaint concerned, in essence, (1) the Commission's failure to reply to the complainant's business proposal referred to above and to reply (and acknowledge receipt) of his relevant correspondence; (2) alleged "abduction" by the Commission of the complainant's rights related to his business proposal; (3) the Commission's alleged failure to provide certain information. On 17 July 2006, the Ombudsman's services contacted the Commission, with respect to the first part of the complaint. Following this intervention, the Commission replied to the complainant, by letter dated 3 August 2006. In this letter, the Commission stated that, for a number of reasons, it was not able to respond positively to the complainant's proposal. The Ombudsman, thus, considered that the Commission had taken steps to settle the aspect of the case concerning its failure to reply to the complainant's business proposal (and subsequent relevant correspondence).

By e-mail of 4 September, which complemented his complaint, the complainant alleged, in essence, that the Commission's letter of 3 August 2006 was untimely. On 22 September 2006, the Ombudsman decided to open an inquiry into this allegation and asked the Commission to submit an opinion on it.

By contrast, the Ombudsman decided not to open an inquiry into the other allegations and claims made by the complainant. This decision was based on an analysis of the case showing that either the "sufficient grounds" condition or the "prior appropriate administrative approaches" condition for the opening of an inquiry was not met with respect to these other parts of the complaint. The above decision was contested by the complainant, but the Ombudsman did not find grounds justifying its revocation.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission, first referred to the content of the complainant's fax-proposal of 26 April 2006 and repeated (without contesting the factual accuracy of) the part of the complaint which quoted the content of the e-mail of 2 May 2006 (acknowledgement of receipt) the Commission had sent to the complainant. It further pointed out that President Barroso's cabinet transferred the complainant's fax of 26 April 2006 to the President's mail section of the Secretariat General with instructions to provide a reply. This section transferred the fax to one of the Commission services with a request to draft the appropriate reply. However, due to an administrative error, the reply in question was not in fact issued from the President's mail section.

Eventually, following receipt of information by the Ombudsman's services concerning the complaint lodged by the complainant, the Commission replied to the complainant's proposal, by letter of 3 August 2006. In this letter, the Commission, inter alia, expressed regret at the lateness of its response, which, it explained, was due to the complexity of the issues raised in the complainant's proposal.

In its opinion, the Commission expressed again its regret at the fact that the complainant had not received a substantive reply to his fax of 26 April 2006, after the e-mail acknowledgement of receipt of 2 May 2006 and before its reply of 3 August 2006. As regards the complainant's subsequent correspondence, the Commission pointed out that this actually consisted of a number of reminders, which added nothing to the substance of the initial fax of 26 April 2006 and did not themselves require separate replies.

The complainant's observations

In his reply to the Ombudsman's invitation for observations on the Commission's opinion, the complainant appeared to maintain his allegation.

THE DECISION

1 Allegation that the Commission failed to reply in a timely manner to the substance of the complainant's fax-proposal of 26 April 2006 and of his subsequent correspondence

1.1 According to point 4 of the Commission's Code of Good Administrative Behaviour, "[a] reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt of the letter by the responsible Commission Department. ... If a reply cannot be sent within the deadline mentioned above, and in all cases where the reply requires other work on it, ... the member of the staff responsible should send a holding reply ..."

1.2 In the present case, the complainant faxed a "business proposal" to the Commission on 26 April 2006. According to the acknowledgement of receipt sent to the complainant by e-mail on 2 May 2006, the complainant's fax was, on the same date, brought to the attention of the Commission's responsible and relevant services. (The content of this e-mail is quoted in the complaint and has not been contested by the Commission.) Nevertheless, the Commission neither replied to the substance of this fax-proposal, nor sent the complainant a relevant holding letter, within the deadline set out in point 4 of its Code of Good Administrative Behaviour. These omissions occurred despite the fact that the complainant, in his fax of 9 May 2006 to the Commission, (mistakenly) interpreted the acknowledgement of receipt as constituting an acceptance of his proposal, asked for its formal acceptance by the Commission, and subsequently (on 16 May, 24 May and 1 June 2006) sent a number of relevant reminders. The Commission sent its reply only in 3 August 2006, following the lodging of a complaint with the Ombudsman and a pertinent intervention of the Ombudsman's services. Moreover, the Commission has not given a satisfactory explanation about the lateness of its reply, which, according to its opinion on the present complaint, was due to an administrative error. Under these circumstances, the Ombudsman finds that the Commission failed to reply in a timely manner to the substance of the complainant's fax-proposal of 26 April 2006 and to his subsequent correspondence and that this failure amounted to an instance of maladministration. Taking into account that the Commission has expressed its regret, but not its apologies, for the belatedness of its reply, the Ombudsman will make a relevant critical remark below.

2 Conclusion

The Commission took steps to settle the aspect of the case concerning its failure to reply to the complainant's fax-business proposal of 26 April 2006 (and subsequent relevant correspondence). Hence, no further inquiries into this matter are justified.

With respect to the complainant's allegation that the Commission failed to reply in a timely manner to the substance of the complainant's fax-proposal and his subsequent correspondence, it is appropriate to address the following critical remark to the Commission:

According to point 4 of the Commission's Code of Good Administrative Behaviour, "[a] reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt of the letter by the responsible Commission Department. ... If a reply cannot be sent within the deadline mentioned above, and in all cases where the reply requires other work on it, ... the member of the staff responsible should send a holding reply ..." The Commission appears to have failed to comply with the above provisions in the present case. This constituted an instance of maladministration.

The Ombudsman, thus, closes the case.

The President of the Commission will be informed of the present decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The complainant stated: "As you have given authority and approval in the first instance for your Executive Cabinet Member and subsequently other to have access to Report (who were not parties to my business proposal of 26 April 2006) this further initiates your and the EU's acceptance."