Strasbourg, 14 August 2008

Dear Mr X,

On 7 July 2005, you made a complaint against the European Commission to the European Ombudsman concerning your replacement as team leader of the project entitled 'Interim Evaluation of the EU-Pre-accession Programmes/Turkey'.

On 30 August 2005, I forwarded the complaint to the President of the Commission, asking for an opinion to be submitted by 30 November 2005. The Commission sent the English original of its opinion on 6 December 2005, announcing that a translation into German would be transmitted shortly. However, when my services contacted the Commission on 31 January 2006 to remind them that no translation had yet been received, they were informed that a mistake had occurred and that no translation had been commissioned. The Commission apologised for this mistake and pointed out that a translation would be sent as soon as possible.

On 31 January 2006, I forwarded the English original of the Commission's opinion to you with an invitation to make observations by 15 March 2006. I explained the mistake that had occurred and noted that the translation would be forwarded to you as soon as it had arrived.

On 7 February 2006, you sent me an e-mail in which you asked for an extension of time, given that the German translation had not yet arrived. My services informed you the same day that your observations should be submitted by 31 March 2006 and that the German translation of the Commission's opinion would be sent to you both by post and by e-mail.

Still on 7 February 2006, you thanked my services for their prompt reply and noted that your private e-mail address could be used for future communications.

On 8 February 2006, the Commission sent the German translation of its opinion, which I forwarded to you on 10 February 2006.

On 27 March 2006, you submitted your observations by e-mail. In conformity with your request, my services sent an acknowledgement of receipt on the same day. On 28 March 2006, you sent me a copy of a further document by e-mail. The observations and this document were subsequently also forwarded to me by post.

On 31 March 2006, you informed me that a further document would be forwarded to me as soon as possible. This document was sent to me on 5 April 2006.

On 22 June 2006, I asked the Commission for further information in relation to your complaint.

In an e-mail sent on 26 June 2006, your former employer asked for access to your observations. Partial access was granted by me on 28 June 2006.

On 7 July 2006, your former employer submitted comments to me. In my reply of 13 July 2006, I informed your former employer that I presumed that it wished me to take these comments into account for the purposes of the present inquiry. Given that I cannot base my decisions on elements that have not previously been brought to the attention of the complainant, I informed your former employer that I had forwarded a copy of its letter to you. The Commission, to which your former employer had copied its letter of 7 July 2006, was informed accordingly.

On 26 July 2006, you forwarded to me an e-mail in which you asked me (1) if I knew whether the Commission had called upon your former employer to intervene in the present case and (2) whether I considered your former employer's letter as being relevant and whether I would take it into account in examining the complaint, even though your former employer had not disclosed the reasons for its intervention. You noted that if the reply were to be affirmative, you would ask your lawyer to show that the statements made in your former employer's letter were unfounded and to see to it that your former employer withdraws its intervention. You also submitted further evidence to support your case.

In my reply of 6 September 2006, I informed you that I did not know whether the Commission had called on your former employer to write to me in the present case. I stressed that in any event, I had not had any contact with your former employer before the latter wrote to me to ask for access to documents. As regards the second question, I informed you that I would consider the statements made by your former employer as one element among others when deciding on the present complaint and that the relevance of these statements would be examined with particular regard to the evidence that you had submitted. A copy of your e-mail of 26 July 2006 and of my reply were forwarded to the Commission.

On 20 September 2006, your lawyers forwarded to me a copy of a letter of the same date in which your former employer was called upon, under threat of judicial action, to cease making certain comments in relation to you.

On 26 September 2006, the Commission sent me its reply to my request for further information. I forwarded it to you on 4 October 2006 with an invitation to make observations by 30 November 2006. On 12 November 2006, you asked for an extension of time until 15 December 2006, which I granted on 14 November 2006.

On 12 December 2006, you asked for a further extension of time until 31 January 2007, which I granted on 18 December 2006. You also informed me that you had sued your former employer and that you wished me to deal with your complaint in a confidential way henceforth.

On 29 January 2007, you submitted observations on the Commission's reply to my request for further information. In this letter, you asked me to allow you to submit, at a later stage, further evidence that might be relevant. By letter sent on 14 February 2007, I asked you to submit any further evidence you considered relevant by 15 March 2007 at the latest. No such evidence was supplied to me by that date.

On 3 April 2008, I informed you that I considered it necessary to inspect the Commission's file. Given that in your letter of 29 January 2007 you had requested me to treat certain information as being confidential, I asked you whether this meant that you considered that this information should not be made available to the Commission either. I also asked you to inform me about the result of the action that you had brought against your former employer. In addition to that, I made certain comments on the scope of the present inquiry and on a procedural issue that you had raised. I also apologised for the time that had lapsed since your last observations had been received.

On 3 April 2008, I asked the Commission for access to its file. In my letter, I made the same comments concerning the scope of the present inquiry that I had made in my letter of that day to you.

The inspection of the Commission's file took place on 15 April 2008. A copy of the report on this inspection was sent to the Commission on 30 April 2008. On the same day, a further copy of this report was forwarded to you for your observations, which you sent on 18 May 2008. You re-sent these observations on 31 May 2008, asking for a confirmation of receipt, which my Office sent to you on 2 June 2008.

On 2 June 2008, you submitted further information to me.

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

THE COMPLAINT

In January 2003, the European Commission's Directorate-General ("DG") Enlargement concluded a contract with a German company ("the Contractor"), entrusting the latter with the implementation of the project entitled 'Interim Evaluation of the EU-Pre-accession Programmes/Turkey'. The complainant was appointed by the Contractor as leader of the Interim Evaluation Team.

According to the complainant, the implementation of the project went well at the beginning, once some initial problems had been overcome. However, matters deteriorated after a change of staff at the Commission's service in charge of evaluating the work carried out. The relevant service was the Evaluation Unit E 3 within DG Enlargement (the "Evaluation Unit").

At a meeting with the Contractor that was held on 16 July 2003, Mr S., the head of the Evaluation Unit, expressed grave concerns as regards both the quality of the second and third interim evaluation reports submitted and the overall project management. According to the complainant, the Commission demanded that he should be replaced as team leader.

On 21 July 2003, the Contractor wrote to the Commission in order to summarise the issues that had been discussed at the meeting and to make a preliminary proposal for future activities under the contract. The Contractor noted that the Commission had explained that its request was caused inter alia by a series of incidents dating back to the interview that preceded the recruitment of the complainant, the quality of the interim evaluating reports (especially regarding their form, consistency and structure) and "procedures, schedule and communication with E 3". According to the Contractor, it had replied at the meeting that most of these points had previously been discussed and jointly decided with the Commission. The relevant criticism could thus not be levelled at the complainant alone.

With regard to the criticism pertaining directly to the management and the performance of the Interim Evaluation Team, the Contractor made inter alia the following comments:

* Most of the quoted 'incidents' dated back to the very early stage of project start-up (or even before) and the same early critics had since expressed positive opinions.

* As regards the contents of the interim evaluation reports, even the most critical stakeholders agreed that the findings were relevant and well-founded and that the recommendations were constructive and helpful. It was however accepted that the reports needed to be improved as regards format, length, consistency and user-friendliness.

* The time schedule had followed a decision taken jointly by the Commission and the Turkish authorities. The Contractor had only had a minor influence in fine-tuning. It had been told that in 2003 the first priority was to have one evaluation cycle concluded, even if the quality might sometimes be affected. The Contractor had not had the slightest doubt that this was the opinion of the Evaluation Unit and the other main stakeholders.

The Contractor pointed out that the complainant's task had been a triple one, namely, that of team leader, senior evaluator in charge of two important sectors and coordinator of a series of monitoring-support activities. According to the Contractor, the complainant's qualification as an evaluator had never been questioned and his qualification for quality control and leadership was also demonstrated by the fact that so far (and despite severe and drastic recommendations) no stakeholder had complained.

The Contractor noted that, as discussed with and promised to the Commission, it had assessed the legal and operational consequences of the complainant's replacement. According to the Contractor, a replacement would be available at the earliest as from November. The Contractor also noted that the contract it had concluded with the complainant allowed premature termination "on the basis of a written and justified request". It added that the complainant felt that the reasons given so far did not constitute such a justification and that its own personnel department currently shared this view. The Contractor noted that it had asked the Evaluation Unit for a more detailed and written justification of the request to replace the team leader and that it would therefore be most grateful to receive the promised letter in order to be able further to substantiate a possible case against the complainant.

As a short-term solution, the Contractor proposed to relieve the complainant of his functions as team leader but to maintain him as a senior evaluator. The Contractor also summarised the action that it had agreed to take with a view to improving the format and the quality of the reports.

On 7 October 2003, the Contractor informed the complainant that his contract would be terminated with effect as from 14 November 2003. In this letter, the Contractor noted that it regretted this step and that it had done all it could in order to ensure that the complainant could stay on the project. According to the Contractor, however, the demand to replace the complainant had not been withdrawn but had been maintained with the strongest insistence. The Contractor pointed out that if it continued to resist this demand, it would lose the contract, which would lead to considerable economic consequences.

On 30 October 2003, the complainant turned to DG Enlargement in Brussels. In its reply of 17 November 2003, DG Enlargement advised the complainant to turn to the Contractor.

In his reply to this letter, the complainant suggested that the Commission should examine whether its approach had been justified or whether there had been an abuse of power. The complainant pointed out that the Contractor had stressed that it had been put under enormous pressure and had been coerced in a highly unfair manner to terminate his contract.

It appears that the Commission subsequently informed the complainant that it would not be able to deal with the matter if he did not provide the relevant supporting documents. On 18 December 2004, the complainant wrote to DG Enlargement again, submitting copies of certain documents. In this letter, the complainant argued that the Contractor and his direct interlocutors in Turkey on the part of both the Turkish authorities and the Commission, considered that the reproaches made by Mr S. were without foundation and in any event did not justify the request that the complainant be replaced as team leader. The complainant submitted that the head of the Evaluation Unit had been guilty of mobbing. He further noted that he had been replaced as team leader by Mr A., who had previously worked for a competing company. According to the complainant, Article 17.4(1) of the General Conditions for Service Contracts financed by the European Community (the "General Conditions") provided that the successor had to possess equivalent qualifications and experience and that he could not receive a higher salary than his predecessor. The complainant expressed massive doubts as to whether these conditions had been respected. He submitted that, in any event, Mr A.'s formal qualifications were not equivalent.

In his letter of 18 December 2004, the complainant asked the Commission to investigate the following allegations: (1) there had been unfairness in the form of an unjustified request for his replacement as team leader; (2) there had been an abuse of power, since his contractual partner, the Contractor, had been coerced into terminating his contract; and (3) there had been an administrative irregularity, given that point 17.4 of the General Conditions had been infringed. The complainant asked the Commission to hear Mr M. (formerly of the Commission's Representation in Turkey, now of DG Enlargement) and Mr I. and Mr A.R. (two Turkish officials) as witnesses.

In his complaint to the Ombudsman that was lodged in July 2005, the complainant submitted the following allegations against the Commission in general and Mr S., the head of the Evaluation Unit, in particular:

(1) The request for his replacement as team leader had been unjustified.

(2) There had been an abuse of power, since his contractual partner, the Contractor, had been coerced into terminating his contract.

(3) There had been an administrative irregularity, given that Article 17.4 of the General Conditions had been infringed.

Among the supporting documents submitted by the complainant were copies of two references concerning his work that had been issued in September 2003 by the Commission's Representation in Turkey (signed by Mr M.) and by the Turkish authorities (signed by Mr I.).

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The main objective of the contract that had been concluded with the Contractor was to provide independent interim evaluation services in support of the management in charge of implementing Community pre-accession financial support to Turkey.

The team leader's specific responsibilities included inter alia to lead and manage the evaluation cell in Turkey in all staff and financial aspects on behalf of the Contractor, to ensure the required quality of the work at the evaluation cell in Turkey, and to perform interim evaluations together with his team colleagues according to the work plan of the evaluation cell.

As mentioned in two letters addressed to the complainant by the Commission on 17 November 2003 and 13 April 2005, the Commission's contract was with the Contractor, not with the complainant. In view of this contractual situation, the Commission had advised the complainant to turn to the Contractor.

In accordance with Article 17.2 of the General Conditions, the Commission had informed the Contractor, orally at their meeting of 16 July and by a letter of 17 July 2003, of its serious concerns about the complainant's performance and had advised the Contractor to replace him. The Commission had then been in full agreement with the Contractor's decision to terminate the complainant's contract. Together with its opinion, the Commission submitted a copy of the letter of 17 July 2003 in which the head of the Evaluation Unit confirmed that the Commission had "serious concerns" about the complainant's performance.

The complainant had already brought an action before a German labour court against his employer (the Contractor) regarding the termination of his contract. This case had been settled by a formal agreement between the complainant and the Contractor in December 2003. The Commission had informed the Contractor of the complainant's letter of 18 December 2004. On 1 March 2005, the Contractor, through its lawyer, had sent a letter to the complainant in which it had reminded him of the settlement of their case. According to the Commission, this letter also clarified that there had never been any coercion from the Commission. The Commission also submitted a copy of a letter that had been addressed to it on 3 March 2005 by the Contractor. In this letter, the Contractor pointed out that the Commission had never used 'threat of force'.

Finally, proper procedures had consistently been applied in the management of the relevant contract, including meeting the requirements of Article 17.4 of the General Conditions, which deals with the requirements as to the qualifications and experience of a replacement.

In view of these statements, the Commission considered the complaint to be unfounded.

The complainant's observations

In his observations, the complainant made the following comments:

The Commission's opinion tried to deflect attention from the allegations by presenting the case as a pure dispute concerning labour law between himself and the Contractor. However, the present complaint did not concern the contract between himself and the Contractor, but purely and exclusively the Commission's role and behaviour. The opinion did not refute the allegations, which were therefore maintained.

The Contractor had had no reason whatsoever to terminate his contract. There had been no written reminders or admonitions from the Commission, but only general reproaches of a personal nature that had been addressed to the Contractor. The way in which Mr S. had behaved constituted an act of unfairness and discrimination, if not of personal defamation.

As regards the allegedly insufficient nature of his performance, regard should be had to the references issued by Mr M. and Mr I. The contents of these references were in conformity with those of the Contractor's letter to the Commission of 21 July 2003.

The Commission's letter of 17 July 2003 contained no reference to any concrete and specific reasons for asking that he be replaced as team leader.

If the Commission had based itself on the quality of the interim evaluation reports, regard would have had to be had to the fact that these reports had to be checked by the Contractor before being submitted to the Commission.

The letter addressed to the Commission on 3 March 2005 had been signed by a sub-ordinate employee of the Contractor. The statement made in this letter according to which the Commission had not exerted any pressure was incorrect, as the Contractor's letters of 21 July and 7 October 2003 confirmed.

The Contractor's project director had, on several occasions between July 2003 and the end of October 2003, informed the Interim Evaluation Team (that is to say, the complainant and his colleagues) that Mr S. had brought pressure to bear on him with a view to removing the complainant not only from his position as team leader, but from the team as such, and to employing a replacement candidate who had been in the service of a competing company. In this context, the complainant submitted a statement by Mrs Ö., who had been a member of the Interim Evaluation Team.

Further inquiries

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

The request for further information

The Commission was therefore asked to address the following questions:

(1) Could the Commission please specify the reasons that led it to demand the replacement of the complainant as team leader? The Ombudsman would very much appreciate it if the Commission could in this context also address the evidence on which the complainant relies in order to show that there was not sufficient justification for the Commission to make such a demand. It would also be most welcome if the Commission could explain whether it consulted the Commission official (Mr M.) to whom the complainant had referred as being a source of fair information concerning these issues.

(2) In its letter to the Contractor of 17 July 2003, the Commission refers to its "serious concerns" about the complainant's performance and notes that it had "on a number of occasions conveyed these concerns to [the Contractor]". Could the Commission please specify how it had conveyed the said concerns to the Contractor and submit copies of any letters, minutes of meetings or attendance notes that could provide information on these contacts?

(3) Article 17.2 of the General Conditions provides that "in the course of performance, and on the basis of a written and justified request, the Contracting Authority can ask for a replacement if it considers that a member of staff is inefficient or does not perform its duties under the contract." On the assumption that this is the provision on which the Commission based its demand that the complainant be replaced as team leader, could the Commission please provide a copy of its "written and justified request"? If the Commission considers that its letter to the Contractor of 17 July 2003 constitutes this request, could it please explain how this request could be regarded as being "justified", that is to say, as setting out the reasons on which it is based?

(4) In its letter to the Commission of 21 July 2003, the Contractor pointed out that it would be grateful to receive "the promised letter from [the Evaluation Unit] in order to be able to further substantiate a possible case against [the complainant]". Could the Commission please explain what reply, if any, it has given to this request?

(5) Could the Commission please comment, in the light of the evidence submitted by the complainant, on the allegation that there had been an abuse of power since the Commission had coerced the Contractor into terminating the complainant's contract?

(6) A ccording to the complainant, the Commission also pushed the Contractor to appoint Mr A. as the complainant's successor. Could the Commission please address this issue and the evidence that the complainant has submitted in this context?

(7) Could the Commission please specify how it complied with Article 17.4 of the General Conditions in this context? It should be recalled in this context that the complainant had argued that the General Conditions provided that the successor had to have equivalent qualifications and experience and could not receive a higher salary than his predecessor.

The Ombudsman noted that in his observations, the complainant had made direct accusations against Mr S., the head of the relevant unit of the Commission.

As regards these accusations, the Ombudsman informed the complainant and the Commission that he could only inquire into the actions of Community institutions and bodies, not of individual members of the staff of such institutions and bodies. The complainant's allegations had therefore been understood as being directed at the Commission as a Community institution.

However, Article 4(2) of the Ombudsman's Statute provides that the Ombudsman has the possibility to "inform" the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view. The Ombudsman therefore pointed out that if the present inquiry were to lead him to the conclusion that there were facts calling into doubt the behaviour of a member of the Commission's staff from a disciplinary point of view, he could use this possibility.

The Ombudsman also forwarded to the Commission a cop y of the complainant's observations on the Commission's opinion and of a further e-mail the complainanthad sent the Commission on 5 April 2006.

The letter from the Contractor

In an e-mail sent on 26 June 2006, the Contractor asked the Ombudsman for access to the complainant's observations. Partial access was granted by the Ombudsman on 28 June 2006.

On 7 July 2006, the Contractor wrote to submit the following comments to the Ombudsman:

The performance of the Contractor and its key staff had been criticised by the Commission on several occasions. Consequently, Dr. F., the Contractor's project director, had made several attempts to improve the performance of the project team and, at the same time, to defend his team.

However, the project director did not succeed in his attempts to improve the output of the project team. After careful evaluation of the situation, the Contractor came to the conclusion that the Commission's proposal to replace the team leader was not inappropriate because

- the performance of the team leader appeared to be questionable and required substantial corrective action;

- the team leader's 'undiplomatic' style of communication had caused confusion and misunderstandings; and

- reports produced by the team did not meet the required standards in terms of language and content but required many corrections by the project director.

Therefore, the Contractor had come to the conclusion that, despite his formal qualification, the complainant lacked the necessary social competence as well as the required writing skills and decided to remove him from his position as team leader and to negotiate with the Commission an alternative role for him within the project team to secure his employment. At the same time, efforts to improve the performance of the team had been intensified. However, several weeks later, the performance of the team and of the complainant had not improved and were still subject to criticism. The complainant's work still required substantial corrective action. A meaningful alternative assigment for him could not be found, and the Contractor therefore proceeded with the termination of his contract.

The complainant's statement that the Contractor was initially not willing to remove him from his post as team leader but was forced by the Commission to do so was untrue. The Contractor removed the complainant because of his poor performance and his lack of social competence and only after several attempts to improve the performance of the project team had failed. The complainant's speculation that the Commission requested the Contractor to remove him from his post using 'threat of force' was untrue.

The vacant position of team leader had been handed over to a person who had worked successfully as a team leader with the Contractor before. The problems concerning performance and communications had disappeared. The quality of the reports produced by the team had improved drastically, both as regards language and content. The complainant's speculation that the Commission forced the Contractor to replace him with a less-qualified person from outside the company was untrue.

The Commission's reply

In its reply to the Ombudsman's request for further information, the Commission provided the following answers to the Ombudsman's questions:

(1) It had to be emphasised that the Commission did not formally request the replacement of the complainant as team leader. On several occasions, it expressed its serious concerns about the performance of the team leader and "strongly advised [the Contractor] to take appropriate actions to replace the team leader". Whilst, during follow-up discussions with the Contractor, having recourse to Article 17.2 of the General Conditions was considered as the only realistic solution to remedy the problem (see the Commission's letter to the Contractor of 12 November 2003), this was superseded by the Contractor's proposal to terminate the complainant's contract, to which the Commission agreed in a letter of 22 October 2003. These letters had been preceded by extensive consultations with the stakeholders, including the Contractor.

Concerns had been raised within the Commission by the contract manager in the Evaluation Unit (the "Contract Manager") as early as January 2003, who had pointed out that the "team leader gives us cause for concerns" (see the contract manager's e-mail of 28 January 2003 and the note attached thereto).

The Contract Manager communicated the Commission's concerns to the Contractor at a meeting on 6 March 2003. In an e-mail of 7 March 2003, the Contract Manager stated that he had expressed the Commission's "extremely strong concerns" at this meeting.

These concerns had been shared with other Commission services. In an e-mail of 7 March 2003, Mr M. had stated that the complainant's "replacement is not at the moment on the agenda. Let's hope his performance does improve."

The Commission's concerns were reinforced by the conclusions of a mission report drawn up in June 2003 by another evaluation contractor. This report pointed out the "lack of active leadership of the TL" (i.e., the complainant) and that "staff morale appeared quite low".

The reasons for the Commission's concerns were extensively discussed with the Contractor at a meeting held on 16 July 2003. They included "systematic lack of quality and coherence" in the draft evaluation reports, "huge communication problems", "lack of integrity" and "clear lack of leadership" (see the Commission's note on points to be discussed at the meeting on 16 July 2003).

The reasons for the Commission's concerns were summarised by the Contract Manager in a note for the file of 26 October 2003.

There were several concrete pieces of evidence to show the poor performance of the evaluation team and related poor performance by the complainant. The draft interim evaluation report on the social sector was rated as "poor" with an overall mark of -9 by the Contract Manager. The written comments supplied to the Contractor by the Contract Manager clearly reflected the poor quality of the draft report. The Contract Manager's comments on the subsequent report had been of the same nature.

The Evaluation Unit was responsible for the quality control of the draft evaluation reports on the Commission's side. It however regularly consulted with Mr M. of the Commission's Delegation. In this regard, Mr M. expressed his "concerns about [the complainant's] capacity", although he also considered the project director to be "equally responsible" and "personally advise[d] that the riot act be read to both of them" (see an e-mail sent by Mr M. on 11 July 2003).

When, about one year after the complainant's departure, the then Contract Manager examined the relevant documents, he noted at least one incident of a severe irregularity concerning the complainant's time sheets.

(2) As mentioned above, the Commission's concerns were first communicated to the Contractor at a meeting on 6 March 2003. The Commission expressed its concerns again at a meeting on 16 July 2003 and reiterated them at a meeting held on 26 September 2003. A summary of these exchanges was made in the Commission's letter to the Contractor of 12 November 2003. As mentioned above, the Commission's concerns were also reflected in the critical comments made by the Contract Manager on successive draft evaluation reports.

(3) As already mentioned, the Commission did not formally ask for the complainant's replacement but only "strongly advised [the Contractor] to take appropriate action to replace the team leader". The requirement of a "written and justified request" set out in Article 17.2 did not therefore apply here.

(4) The promised letter was that of 17 July 2003, which the Contractor apparently had not received when it wrote its letter of 21 July 2003.

(5) The complainant's allegations of an abuse of power were absolutely unfounded, as the Contractor had confirmed.

(6) As soon as the Commission was informed of the Contractor's decision to terminate the complainant's assignment, it obviously insisted that the Contractor should make suggestions for a replacement. Three candidates were presented, and the Commission chose Mr A., who had a very good track record and clearly was the best candidate. Mr A. had not been working for a competitor's company, but had been employed by the Contractor to work on another project.

(7) The relevant terms of reference provided as follows: "The team leader shall have significant previous successful experience in managing projects of a similar nature in an international context. The team leader will have appropriate educational qualifications at graduate or postgraduate level or equivalent experience. His general professional experience, good administrative skills will allow him to lead a small group of evaluators. Good communication skills and the ability to maintain a close relationship with the National Evaluator and the EC Representation are a must. His specific professional experience he gained in leading or carrying out evaluation work will allow him to maintain a high quality standard or the evaluation reports produced in his team. Knowledge of the Turkish language would be an asset."

Although Mr A. had no PhD, his educational qualifications fully complied with the requirements set out above. In addition, his experience, involving several years as an interim evaluation team leader, was clearly more relevant than the complainant's experience. Finally, the fees paid by the Commission to the Contractor for the two experts were identical. Besides, the Commission's contract was with the Contractor. Article 17.4 thus did not concern the individual remuneration paid to the complainant by the Contractor.

In its reply, the Commission referred to 12 enclosures. However, since the Commission considered that most of these enclosures were confidential, only 4 enclosures were actually attached to its reply. The Commission noted that the Ombudsman was welcome to inspect the remaining enclosures at its premises, if he considered that this was necessary.

The complainant's observations

In his observations, the complainant made the following comments:

(1) The Commission had not provided concrete and precise indications as to its "serious concerns" either before the meeting on 16 July 2003 or afterwards, even though the Contractor had asked it to do so in its letter of 21 July 2003. Articles 40.1 and 40.2 of the General Conditions provided that all disputes had to be conducted in writing and with a view to finding a common accord. The Commission had continuously infringed these provisions.

The Commission deliberately distorted the facts by claiming that it had acted in reaction to a proposal to replace him made by the Contractor. In view of the fact that the ultimative request to replace him as team leader, initially made by the Commission at the meeting held on 16 July 2003, had assumed the character of an ultimatum, the Commission's letter of 17 July 2003 constituted a clear request to act accordingly. A letter of 2 September 2003, in which the Contractor first tried to terminate his employment, clearly stated that this step was due to the Commission's demand for his replacement made on 17 July 2003. The Commission's statement, in its letter to the Contractor of 12 November 2003, that, when writing its letter of 17 July 2003, it had not excluded "other solutions to solve the problem" was clearly incorrect.

The Commission's "concerns" related to two aspects. Some were based on initial problems initially encountered with the project in March 2003, which had subsequently been solved. Others were based on the subjective views of a short-term expert who had spent some 5 working days on the project.

The Commission had made critical comments on the quality of a draft interim evaluation report on the social sector. However, two other draft evaluation reports had previously been considered to be satisfactory and useful by all parties involved. Furthermore, responsibility for the quality of reports lay with the project director. It was therefore neither fair nor understandable to blame the complainant for potential weaknesses concerning a draft report.

Mr M.'s comment cited by the Commission concerned some ambivalence relating to the scheduling or cancelling of a specific meeting.

The fact that the Commission referred to severe irregularities concerning the complainant's time sheets showed that it did not even refrain from personal defamation. The relevant accusation was unfounded.

(2) The Commission's statement that it had reiterated its concerns at a meeting held on 26 September 2003 was not true. The Commission failed to mention that by then its massive requests to replace him had already led the Contractor to try and terminate his contract.

(3) The Commission had forced the Contractor to replace him as team leader. The Contractor's letter of 21 July 2003 and its two letters of 2 September and 7 October 2003 were clear in this respect.

(4) The response given by the Commission was misleading. The Commission had never replied to the arguments, proposals etc. put forward in the Contractor's letter of 21 July 2003. Its letter of 17 July 2003 was not a reply to this letter. It was very doubtful whether this letter had indeed been written on 17 July 2003.

(5) The Commission's position had been clear. Arguments and proposals made by the Contractor were neither heard not considered. The statement made by an employee of the Contractor in his letter to the Ombudsman of 3 March 2005 ran counter to the facts and to the letters written by the Contractor in the second half of 2003 and was therefore not credible.

(6) As the minutes of a meeting held on 22 July 2003 showed, the Contractor had already at that time considered recruiting a person who at the time was working for a company called EMS. Contrary to what the Commission had said, this company was a competitor of the Contractor. Mr A. did not work for the Contractor at that time. There were serious doubts whether it was admissible that a person who was still working for the Commission could already apply for another job with the Commission or could even be headhunted.

(7) It was not disputed that Mr A.'s professional experience qualified him to be a team leader. However, Article 17.4 of the General Conditions demanded equivalence as regards the educational qualifications as well ("and"). Besides, this provision clearly concerned the remuneration paid to the individual member of staff concerned.

The complainant stated that he wished to maintain his complaint in its entirety and to add to it another allegation, namely, that the Commission had failed to comply with Articles 40.1 and 40.2 of the General Conditions. As regards the severe irregularities concerning his time sheets, to which the Commission had referred, and as regards the recruitment of Mr A. as his successor, the complainant asked the Ombudsman to examine whether this was a case for the European Anti-Fraud Office ("OLAF").

The complainant asked the Ombudsman to treat as confidential some of the documents he enclosed with his observations.

The complainant also informed the Ombudsman that he had brought an action against his former employer (the Contractor) before a German court, in which he asked for the statements made by the Contractor to the Ombudsman to be withdrawn.

Further action taken by the Ombudsman

Upon having examined the evidence that had been submitted to him, the Ombudsman considered that it was necessary to inspect the Commission's file. The Ombudsman informed the Commission accordingly on 3 April 2008.

In his letter, the Ombudsman noted that, in his observations, the complainant had put forward a further allegation concerning the Commission's alleged failure to comply with Articles 40.1 and 40.2 of the General Conditions. In the absence of appropriate prior approaches concerning this issue, the Ombudsman had informed the complainant that this additional allegation would not be taken up for inquiry. The Ombudsman added that he had informed the complainant that he could address himself to the Commission concerning this issue and that he could again turn to the Ombudsman if he did not receive a satisfactory response within a reasonable period of time.

It appeared possible, however, that what the complainant wished to criticize by making this further allegation was the Commission's alleged failure to comply with the duty, set out in Article 17.2 of the General Conditions, to draw up a "written and justified request" when asking for the replacement of a member of staff. The Ombudsman noted that the complainant's first allegation was that the Commission's request for his replacement as team leader had been unjustified. In the Ombudsman's view, this allegation comprised both a substantive (did the Commission have sufficient reasons to ask for the complainant's replacement?) and a procedural aspect (did the Commission present a "written and justified" request?). The Ombudsman informed the Commission that the issue of its compliance with Article 17.2 of the General Conditions was thus already covered by the present inquiry.

The complainant was informed accordingly the same day. In this letter, the Ombudsman also asked the complainant to inform him about the result of the action that he had brought against his former employer. In his letter of 29 January 2007, the complainant asked the Ombudsman to treat certain information as confidential. The Ombudsman therefore asked the complainant whether this meant that he considered that this information should not be made available to the Commission either.

The inspection of the Commission's file

The inspection of the Commission's file took place on 15 April 2008.

The most important findings resulting from this inspection may be summarised as follows:

- As regards Mr M.'s e-mail of 11 July 2003, the passage to which the Commission referred indicates that the complainant was not solely responsible for the unsatisfactory quality of the work, but that the Contractor was equally responsible.

- It further emerged from this e-mail that, as regards a debriefing that the Commission had reproached the complainant for having carried out, the relevant meeting had in fact been called by the Turkish authorities. Mr M. added that he considered that as regards this issue there was a certain contradiction in the relevant guide.

- As regards the note concerning the meeting on 16 July 2003 (Task Manager's note on "Discussion points for meeting with Mr F. on 16 July 2003"), it emerged that the concerns that were expressed in this note and to which the Commission had referred in its letter to the Ombudsman related to both the complainant and the Contractor.

- As regards the note for the file dated 26 October 2003, this document referred to similar problems that had occurred in respect of the complainant's work on a contract carried out in Egypt and stated that a suggestion had been made by a staff member of another unit that the complainant, due to his repeated unsatisfactory performance in implementing Commission contracts, should be put on "the Commission's black list".

- When asked by the Ombudsman's representatives what exactly this meant, Mr S. explained that the evaluation of the performance of contractors that had been engaged by his unit was clearly important as regards future contracts. Mr S. stressed that this did not mean that a previously underperforming contractor could never work for the Commission again, but that his future offers would be examined very carefully. He submitted that the term 'black list' was therefore inappropriate in his view.

- From another document inspected by the Ombudsman's representatives, it emerged that a person other than Mr A. had initially been considered as a possible replacement for the complainant but that in the course of the discussions with this person no agreement had been reached.

The complainant's observations

In his observations, the complainant clarified that his request for confidentiality in relation to certain documents only concerned third parties, but not the Commission.

The complainant noted that the Ombudsman's representatives had inter alia inspected an e-mail sent by the Contractor on 4 September 2006 and asked the Ombudsman to disclose the contents of this e-mail or to confirm that it contained the information that the Contractor had terminated the complainant's employment following a 'request' by the Commission.

The complainant maintained and reiterated his complaint. As regards his work in Egypt, the complainant stressed that he found it incomprehensible and morally dubious that alleged deficiencies from a previous contract had been considered when assessing his performance under the contract concerned. According to the complainant, only the actual performance under the relevant contract should have been considered, and those assessing his performance should have sought to ascertain who was responsible for possible deficiencies. However, this had deliberately not been done in the present case.

If a 'black list' existed, regardless of whether it was 'virtual' or 'secret', that is to say, if one's performance under previous contracts was to be considered when assessing his or her performance under a given contract, this meant that there was legal insecurity, since every contractor or expert had to reckon with the possibility of being put on that list.

As regards his case against the Contractor, the complainant informed the Ombudsman that the Contractor had agreed to refrain from repeating the disputed statements in its relations to third parties in the future.

THE DECISION

1 The relevant facts

1.1 In January 2003, the European Commission's Directorate-General ("DG") Enlargement concluded a contract with a German company ("the Contractor"), entrusting the latter with the implementation of the project entitled 'Interim Evaluation of the EU-Pre-accession Programmes/Turkey'. The complainant was appointed by the Contractor as leader of the Interim Evaluation Team.

1.2 At a meeting with the Contractor, held on 16 July 2003, Mr S., the head of the Evaluation Unit E 3 within DG Enlargement, the Commission's service in charge of evaluating the work carried out (the "Evaluation Unit"), expressed grave concerns as regards both the quality of the second and third interim evaluation reports submitted and the overall project management. According to the complainant, the Commission demanded that he should be replaced as team leader.

1.3 In a letter dated 17 July 2003, the Commission informed the Contractor that, further to the meeting held on 16 July 2003, it wished "to reconfirm our serious concerns" about the complainant's performance. The Commission noted that it had already conveyed these concerns to the Contractor on previous occasions, but that no improvement had taken place. It concluded that it "would therefore strongly advise [the Contractor] to take appropriate actions to replace [the complainant]."

1.4 On 21 July 2003, the Contractor wrote to the Commission in order to summarise the issues that had been discussed at the meeting of 16 July 2003 and to make a preliminary proposal for future activities under the contract. Among other things, the Contractor submitted that the criticisms expressed by the Commission could not be levelled at the complainant alone. The Contractor also noted that the contract it had concluded with the complainant allowed premature termination "on the basis of a written and justified request". It added that the complainant felt that the reasons given so far did not constitute such a justification and that its own personnel department currently shared this view. The Contractor noted that it had asked the Evaluation Unit for a more detailed and written justification of the request to replace the team leader and that it would therefore be most grateful to receive the promised letter in order to be able further to substantiate a possible case against the complainant.

1.5 By letter of 2 September 2003, the Contractor tried to terminate the complainant's employment.

1.6 On 7 October 2003, the Contractor informed the complainant that his contract would be terminated with effect as from 14 November 2003. In this letter, the Contractor noted that it regretted this step and that it had done all it could in order to ensure that the complainant could stay on the project. According to the Contractor, however, the demand to replace the complainant had not been withdrawn but had been maintained with the strongest insistence. The Contractor pointed out that if it continued to resist this demand, it would lose the contract, which would lead to considerable economic consequences.

1.7 The complainant subsequently turned to DG Enlargement in Brussels. However, the Commission took the view that there was need for any action on its part.

1.8 In July 2005, the complainant submitted the present complaint to the Ombudsman.

2 Introductory remarks

2.1 In his observations on the Commission's opinion in this case, thecomplainant made direct accusations against Mr S., the head of the relevant unit of the Commission. As regards these accusations, the Ombudsman informed the complainant and the Commission that he could only inquire into the actions of Community institutions and bodies, not of individual members of the staff of such institutions and bodies. The complainant's allegations had therefore been understood as being directed at the Commission as a Community institution. However, Article 4(2) of the Ombudsman's Statute provides that the Ombudsman has the possibility to "inform" the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view. The Ombudsman therefore pointed out that if the present inquiry were to lead him to the conclusion that there were facts calling into doubt the behaviour of a member of the Commission's staff from a disciplinary point of view, he could use this possibility.

2.2 Although the Ombudsman arrives at a finding of maladministration concerning one aspect of the present case (see point 3 below), he Ombudsman that there is no need for him to proceed as foreseen by Article 4(2) of his Statute. As a matter of fact, although the Ombudsman considers that there has been maladministration in this case, he does not consider that this finding calls into doubt the behaviour of the staff concerned from a disciplinary point of view.

2.3 In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant asked the Ombudsman to examine whether this was a case for the European Anti-Fraud Office ("OLAF").

2.4 On the basis of his findings, the Ombudsman is not convinced that OLAF would need to look at the way in which the relevant contract was handled. However, the complainant remains free to address himself to OLAF in order to invite it to consider the matter.

2.5 In its reply to the Ombudsman's request for further information, the Commission mentioned that when, about one year after the complainant's departure, the relevant documents had been examined, at least one incident of a severe irregularity concerning the complainant's time sheets had been noted. In his observations, the complainant observed that this remark showed that the Commission did not even refrain from personal defamation. The complainant added that the relevant accusation was unfounded.

2.6 The Ombudsman notes that the alleged irregularity mentioned by the Commission has nothing to do with the subject of the present complaint. He therefore fails to understand why the Commission felt it appropriate to refer to this alleged irregularity in the present context. However, given that this remark is clearly irrelevant for the present case, no further inquiries are justified in this regard.

2.7 In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant stated that he wished to add another allegation, namely, that the Commission had failed to comply with Articles 40.1 and 40.2 of the General Conditions for Service Contracts financed by the European Community (the "General Conditions"). In the absence of appropriate prior approaches concerning this issue, the Ombudsman considered that this additional allegation could not be taken up for inquiry. The Ombudsman noted, however, that it appeared possible that what the complainant wished to criticize by making this further allegation was the Commission's alleged failure to comply with the duty, set out in Article 17.2 of the General Conditions, to draw up a "written and justified request" when asking for the replacement of a member of staff. The Ombudsman took the view that this issue is covered by the complainant's first allegation.

2.8 In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant also asked the Ombudsman to treat some of the documents he enclosed with his observations as confidential. In response to a question to this effect, however, the complainant confirmed that this did not mean that these documents could not be made available to the Commission.

2.9 When inspecting the Commission's file, the Ombudsman's representatives noted that one of the documents on this file mentioned a suggestion had been made by a member of the Commission's staff that, due to his repeated unsatisfactory performance in implementing Commission contracts, the complainant should be put on "the Commission's black list". When asked by the Ombudsman's representatives what exactly this meant, Mr S. explained that evaluating the performance of contractors that had been engaged by his unit was clearly important as regards future contracts. Mr S. stressed that this did not mean that a previously underperforming contractor could never work for the Commission again, but that his future offers would be examined very carefully. He submitted that the term 'black list' (that had been used by a person working for another unit) was, in his view, inappropriate.

2.10 In his observations, the complainant stressed that he found it incomprehensible and morally dubious that alleged deficiencies from a previous contract had been considered when assessing his performance under the contract concerned. According to the complainant, only the performance observed under the relevant contract should have been considered, and those assessing his performance should have clearly sought too ascertain who was responsible for possible deficiencies. However, this had deliberately not been done in the present case. The complainant added that if a 'black list' existed, that is to say, if one's performance under previous contracts was to be considered when assessing his or her performance under a given contract, this meant that there was legal insecurity, since every contractor or expert had to reckon with the possibility of being put on that list.

2.11 The Ombudsman considers that the possible existence of a 'black list' could indeed give rise to concerns. However, he notes that he does not possess sufficient information to take a position on this matter. He further notes that the issue is clearly not relevant for his examination of the present case. In these circumstances, the Ombudsman considers that this issue should not be pursued in the present inquiry. However, the Ombudsman invites the Commission to provide him with further information concerning this issue so as to enable him to decide whether an own-initiative inquiry should be opened to examine it in depth. This information should be submitted to the Ombudsman by 31 October 2008. The Ombudsman takes the view that it would be appropriate to forward a copy of the Commission's reply to the complainant in the present case for his information.

2.12 In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant asked the Ombudsman to disclose the contents of an e-mail sent by the Contractor to the Commission on 4 September 2006 that had been inspected by the Ombudsman's services or to confirm that it contained the information that the Contractor had terminated his employment following a 'request' by the Commission.

2.13 Article 4(1) of the Statute of the European Ombudsman(2) provides that the Ombudsman and his staff "shall be required not to divulge information or documents which they obtain in the course of their inquiries". The Ombudsman considers that this provision prevents him from disclosing the contents of the said e-mail or answering the complainant's question concerning this e-mail. However, the complainant is free to address a request for access to this document to the Commission, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(3).

3 As regards the allegation that the request for the complainant's replacement as team leader was unjustified

3.1 The complainant alleged that the Commission's request for his replacement as team leader had been unjustified.

3.2 In its opinion, the Commission submitted that, at their meeting of 16 July and by a letter of 17 July 2003, it had, in accordance with Article 17.2 of the General Conditions for Service Contracts financed by the European Community (the "General Conditions"), informed the Contractor of its serious concerns about the performance of the complainant and had advised the Contractor to replace him. The Commission added that it had then been in full agreement with the Contractor's decision to terminate the complainant's contract.

3.3 In his observations, the complainant submitted that t he Contractor had had no reason whatsoever to terminate his contract. There had been no written reminders or admonitions from the Commission, but only general reproaches of a personal nature that had been addressed to the Contractor. The complainant submitted that the way in which Mr S. had behaved constituted an act of unfairness and discrimination, if not of personal defamation. As regards the allegedly insufficient nature of his performance, the complainant argued that regard should be had to two references issued to him in relation to his work by the Commission's Representation in Turkey (signed by Mr M.) and by the Turkish authorities. The complainant argued that t he contents of these references were in conformity with those of the Contractor's letter to the Commission of 21 July 2003. He added that the Commission's letter of 17 July 2003 contained no reference to any concrete and specific reasons for asking for his replacement as team leader. The complainant further argued that, if the Commission had based itself on the quality of the interim evaluation reports, regard would have had to be to the fact that these reports had to be checked by the Contractor before being submitted to the Commission.

3.4 In these observations, the complainant made comments that could be interpreted as additional allegations. However, the complainant did not provide any precise arguments to establish his view that Mr S.' behaviour was not only unfair, but constituted discrimination or defamation. In these circumstances, the Ombudsman takes the view that there is no need to inquire into these further issues in the present case.

3.5 Having examined the arguments submitted by the parties, the Ombudsman considered that he needed further information to deal with this case. He therefore asked the Commission (i) to specify, in light of the evidence submitted by the complainant, the reasons that had led it to demand the replacement of the complainant as team leader, (ii) to specify how, as claimed in its letter to the Contractor of 17 July 2003, it had, prior to the meeting of 16 July 2003, conveyed its concerns concerning the complainant to the Contractor,and to submit copies of any letters, minutes of meetings or attendance notes that could provide information on these contacts, (iii) to provide a copy of the "written and justified request" foreseen by Article 17.2 of the General Conditions or, if it considered that its letter to the Contractor of 17 July 2003 constituted this request, to explain how this request could be regarded as being "justified", that is to say, as setting out the reasons on which it is based, and (iv) to indicate what reply, if any, had been given to the request expressed by the Contractor in its letter to the Commission of 21 July 2003 for "the promised letter from [the Evaluation Unit] in order to be able to further substantiate a possible case against [the complainant]".

3.6 On 7 July 2006, the Contractor wrote to submit comments to the Ombudsman. According to the Contractor, its performance and that of its key staff had been criticised by the Commission on several occasions. Consequently, Dr. F., the Contractor's project director, had made several attempts to improve the performance of the project team and, at the same time, to defend his team. According to the Contractor, these attempts had failed. The Contractor added that, after careful evaluation of the situation, it had come to the conclusion that the Commission's proposal to replace the team leader was not inappropriate.

3.7 In its reply to the Ombudsman's request for information, the Commission argued that it did not formally ask for the complainant's replacement but only "strongly advised [the Contractor] to take appropriate action to replace the team leader". The requirement for a "written and justified request" set out in Article 17.2 did not therefore apply here. The Commission submitted that, during follow-up discussions with the Contractor, having recourse to Article 17.2 of the General Conditions was considered as the only realistic solution to remedy the problem, but that this had been superseded by the Contractor's proposal to terminate the complainant's contract, to which the Commission had agreed in a letter of 22 October 2003.

3.8 The Commission further submitted the following information: Concerns relating to the complainant had, as early as January 2003, been raised within the Commission by the contract manager in the Evaluation Unit (the "Contract Manager"), who had pointed out that the "team leader gives us cause for concerns" (see the contract manager's e-mail of 28 January 2003 and the note attached thereto). The Contract Manager had communicated the Commission's concerns to the Contractor at a meeting on 6 March 2003. In an e-mail of 7 March 2003, the Contract Manager stated that he had expressed the Commission's "extremely strong concerns" at this meeting. These concerns had been shared with other Commission services. In an e-mail of 7 March 2003, Mr M. had stated that the complainant's "replacement is not at the moment on the agenda. Let's hope his performance does improve." The Commission's concerns were reinforced by the conclusions of a mission report drawn up in June 2003 by another evaluation contractor. This report pointed out the "lack of active leadership of the TL" (i.e., the complainant) and that "staff morale appeared quite low". The reasons for the Commission's concerns were extensively discussed with the Contractor at a meeting held on 16 July 2003. They included "systematic lack of quality and coherence" in the draft evaluation reports, "huge communication problems", "lack of integrity" and "clear lack of leadership" (see the Commission's note on points to be discussed at the meeting on 16 July 2003). The reasons for the Commission's concerns were summarised by the Contract Manager in a note for the file of 26 October 2003. There were several concrete pieces of evidence to show the poor performance of the evaluation team and related poor performance by the complainant. The Evaluation Unit was responsible for the quality control of the draft evaluation reports on the Commission's side. It however regularly consulted with Mr M. of the Commission's Delegation. In this regard, Mr M. expressed his "concerns about [the complainant's] capacity", although he also considered the project director to be "equally responsible" and "personally advise[d] that the riot act be read to both of them" (see an e-mail sent by Mr M. on 11 July 2003).

The Commission also stated that its concerns had been brought to the attention of the Contractor at a meeting on 6 March 2003, at the meeting on 16 July 2003 and at a meeting held on 26 September 2003. It added that its concerns were also reflected in the critical comments made by the Contract Manager on successive draft evaluation reports.

3.9 In its reply to the Ombudsman's request for information, the Commission also submitted that the letter that had been promised to the Contractor was that of 17 July 2003, which the Contractor apparently had not received when it wrote its letter of 21 July 2003.

3.10 In his observations, the complainant took the view that the Commission had not provided concrete and precise indications as to its "serious concerns" either before the meeting on 16 July 2003 or afterwards, even though the Contractor had asked it to do so in its letter of 21 July 2003. The complainant further submitted that the Commission deliberately distorted the facts when claiming that it had acted in reaction to a proposal to replace him made by the Contractor. In view of the fact that the request to replace him as team leader, initially formulated at the meeting on 16 July 2003, had assumed the character of an ultimatum, the Commission's letter of 17 July 2003 constituted a clear request to act accordingly. The complainant pointed out that the letter of 2 September 2003, in which the Contractor had first tried to terminate his employment, clearly stated that this step was due to the Commission's demand for his replacement made on 17 July 2003.

The complainant added that the Commission's "concerns" related to two aspects. Some werer based on problems initaially encountered with the project in March 2003 that had subsequently been solved. Others were based on the subjective views of a short-term expert who had spent some 5 working days on the project. The complainant also argued that whereas the Commission had made critical comments on the quality of a draft interim evaluation report on the social sector, two other draft evaluation reports had previously been considered to be satisfactory and useful by all parties involved. Furthermore, responsibility for the quality of reports lay with the project director. According to the complainant, it was therefore neither fair nor understandable to blame him for potential weaknesses concerning a draft report.

3.11 The Ombudsman notes that the present allegation is based on the assumption that the Commission requested the Contractor to replace the complainant as team leader. Given that the Commission has disputed this assumption, this issue needs to be examined first of all.

3.12 According to the Commission, the decision to replace the complainant as team leader was taken by the Contractor and subsequently approved by the Commission. The Ombudsman is unable to share this view. The Commission itself accepts that it raised concerns against the complainant at its meeting with the Contractor on 16 July 2003. In its subsequent letter of 17 July 2003, the Commission informed the Contractor that, further to the meeting held on 16 July 2003, it wished "to reconfirm [its] serious concerns" about the complainant's performance. The Commission concluded that it "would therefore strongly advise [the Contractor] to take appropriate actions to replace [the complainant]." Given the background of this letter, the Ombudsman considers that this 'advice' could hardly be understood otherwise than as a request to replace the complainant as team leader. It should be noted in this context that the letter of 17 July 2003 did not limit itself to inviting the Contractor to take appropriate action, but explicitly advised the latter to take action "to replace" the complainant. The aim pursued by this letter is thus abundantly clear in the Ombudsman's view. It should be stressed that this was also how the Contractor, at the relevant time, understood the Commission's position. In its letter of 21 July 2003, the Contractor stated that already at the meeting of 16 July 2003, the Commission had made a "request" to replace the complainant. It is noteworthy that the Commission did not dispute this statement at the time. The letter of 17 July 2003 could therefore only be interpreted as confirming the request that had been made orally at the meeting the day before. The fact that such a request was made is also confirmed by the letter that the Contractor addressed to the complainant on 7 October 2003. In these circumstances, the Commission's argument that no request to replace the complainant as team leader had been made by it must fail.

3.13 Articl e 17.2 of the General Conditions provides that "in the course of performance, and on the basis of a written and justified request, the Contracting Authority can ask for a replacement if it considers that a member of staff is inefficient or does not perform its duties under the contract."

3.14 The Ombudsman considers that the allegation to be examined here, namely, that the Commission's request for his replacement as team leader had been unjustified, comprises both a substantive (did the Commission have sufficient reasons to ask for the complainant's replacement?) and a procedural aspect (did the Commission present a "written and justified" request?).

3.15 As regards the substantive aspect, the Ombudsman notes that it emerges from the information provided to him and the documents inspected by his representatives that the Commission had serious concerns as regards the way the complainant performed his duties. This fact is in particular confirmed by the Contractor's letter to the Commission of 21 July 2003. Having considered the arguments put forward by the complainant and, at the time, the Contractor, the Ombudsman is not convinced that all the objections raised by the Commission were justified. However, regard must be had to the fact that the present case concerns the performance of certain duties under a contract entered into by a Community institution. When dealing with such cases, the Ombudsman has to take into account the fact that the Community institutions have a wide margin of discretion as regards the assessment of the performance of the duties arising under such contracts. Bearing in mind this fact, the Ombudsman considers that neither the arguments put forward by the complainant nor the information made available to him lead him to the conclusion that the Commission went beyond the limits of its discretion when it arrived at the conclusion that the complainant's performance raised concerns that were so serious as to justify the request that the complainant be replaced. This conclusion is not affected by the positive references concerning the complainant's work that were issued in September 2003 by the Commission's Representation in Turkey (signed by Mr M.) and by the Turkish authorities (signed by Mr I.). As regards the reference issued by the Commission, which is the only one that could be of direct relevance in the present case, the views expressed in this document should be read together with the comments Mr M. made on other occasions. It should be recalled that, in his e-mail of 11 July 2003, Mr M. had suggested "that the riot act be read" to both the complainant and the Contractor.

3.16 It is true that it also emerges from the information that was made available to the Ombudsman that the Commission's objections did not only concern the complainant but also the Contractor. To quote only one example, in his e-mail of 11 July 2003, Mr M. stated that the complainant was not solely responsible for the unsatisfactory quality of the work, but that the Contractor was equally responsible. The Contractor itself, in its letter to the Commission of 21 July 2003, pointed out that the criticisms expressed by the Commission could not be levelled at the complainant alone. In light of the information available to him, the Ombudsman cannot exclude that the Commission might have been entitled to terminate the contract as such. However, the Ombudsman takes the view that, in this context as well, the Commission must be considered as having a wide margin of discretion as to how to proceed. It is true that the Commission, whilst having objections against both the complainant's and the Contractor's performance, decided to proceed only with regard to the complainant by asking for the latter's replacement. In the Ombudsman's view, however, it has not been established that by doing so the Commission went beyond the limits of its discretion.

3.17 No maladministration is therefore found as regards the substance of the Commission's decision to request the replacement of the complainant as team leader.

3.18 As regards the procedural aspect, the Ombudsman notes that Articl e 17.2 of the General Conditions stipulates that a request for the replacement of a member of a contractor's staff has to be made "on the basis of a written and justified request". As the Ombudsman has already noted in his request for further information, this means that the request needs to set out the reasons on which it is based. As a matter of fact, this formal requirement is particularly important in view of the discretion that the Commission possesses as regards the reasons that allow it to demand such a replacement.

3.19 In the Ombudsman's view, the only letter that needs to be examined here is that of 17 July 2003. This letter states that, further to the meeting held on 16 July 2003, the Commission wished "to reconfirm [its] serious concerns" about the complainant's performance. However, these concerns are nowhere specified in this letter. It is true that the Contractor appears to have been broadly familiar with the Commission's objections, which had been discussed at the meeting on 16 July 2003. However, the requirement made in Article 17.2 of the General Conditions that requests for replacement need to be made "on the basis of a written and justified request" would be deprived of its meaning if a letter such as that of 17 July 2003 were considered to be sufficient in this context. Article 17.2 of the General Conditions clearly intends that the Commission should set out the reasons for its request in writing and in sufficient detail, so as to enable the Contractor to assess whether this request is warranted or not. A mere, general reference to the contents of a previous discussion is therefore not enough. As regards the present case, the need for a "written and justified request" is further confirmed by the fact that the Contractor, in its letter of 21 July 2003, expressed doubts (albeit cautiously) as to the validity of certain arguments on which the Commission had relied and mentioned that it had asked the Commission "for a more detailed and written justification of the request to replace the team leader". It seems obvious to the Ombudsman that the Commission's letter of 17 July 2003 did not constitute a satisfactory reply to this demand. In view of the above, the Ombudsman concludes that the Commission failed to provide the Contractor with a written request properly setting out the reasons on which this request was based. This constitutes an instance of maladministration.

4 As regards the alleged abuse of power

4.1 The complainant alleged that there had been an abuse of power, since his contractual partner, the Contractor, had been coerced into terminating his contract.

4.2 In its opinion, the Commission pointed at a letter that the Contractor, through its lawyer, had sent to the complainant on 1 March 2005. According to the Commission, this letter clarified that there had never been any coercion on the part of the Commission. The Commission also submitted a copy of a letter that had been addressed to it on 3 March 2005 by the Contractor, in which the latter pointed out that the Commission had never used 'threat of force'.

4.3 In his observations, the complainant submitted that the statement made in the Contractor's letter to the Commission on 3 March 2005, according to which the Commission had not exerted any pressure, was incorrect. He argued that the Contractor's letters of 21 July and 7 October 2003 confirmed his position. The complainant added that the Contractor's project director had, on several occasions between July 2003 and the end of October 2003, informed the Interim Evaluation Team (that is to say, the complainant and his colleagues) that Mr S. had brought pressure to bear on him with a view to removing the complainant not only from his position as team leader, but from the team as such, and to employing a replacement candidate who had been in the service of a competing company. In this context, the complainant submitted a statement by Mrs Ö., who had been a member of the Interim Evaluation Team.

4.4 In his above-mentioned request for further information the Ombudsman asked the Commission to comment, in the light of the evidence submitted by the complainant, on the allegation that there had been an abuse of power since the Commission had coerced the Contractor into terminating the complainant's contract.

4.5 In its letter to the Ombudsman of 7 July 2006, the Contractor submitted that the complainant's statement that it had initially not been willing to remove him from his post as team leader but had been forced by the Commission to do so was untrue. According to the Contractor, it had removed the complainant because of his poor performance and his lack of social competence and only after several attempts to improve the performance of the project team had failed. The Contractor added that the complainant's speculation that the Commission requested it to remove him from his post using 'threat of force' was untrue.

4.6 In its reply to the Ombudsman's request for further information, the Commission submitted that, as the Contractor had confirmed, the complainant's allegations of an abuse of power were absolutely unfounded.

4.7 In his observations, the complainant reiterated his view that the Commission had forced the Contractor to replace him as team leader. According to the complainant, the Contractor's letter of 21 July 2003 and its two letters of 2 September and 7 October 2003 were clear in this respect.

4.8 The Ombudsman notes that, in its letter of 7 October 2003 informing the complainant of the termination of his contract, the Contractor noted that it regretted this step and that it had done all it could in order to ensure that the complainant could stay on the project. According to the Contractor, however, "the demand to replace [the complainant] had not been withdrawn but had been maintained with the strongest insistence." The Contractor pointed out that if it continued to resist this demand, it would lose the contract, which would lead to considerable economic consequences. In view of the contents of this letter, the Ombudsman finds it difficult to understand that the Contractor subsequently took the view that no pressure had been brought to bear on it by the Commission with a view to terminating the complainant's contract.

4.9 The Ombudsman considers, however, that there is no need further to examine the statements made by the Contractor in the course of the present inquiry. As mentioned above, no maladministration is found as regards the substance of the Commission's request that the complainant should be replaced as team leader. In these circumstances, the Ombudsman takes the view that there could only be an abuse of power on the part of the Commission if it had tried to enforce this request by using unacceptable means or if it had pursued an aim that was not linked to the purpose of seeing the contract with the Contractor through to a successful conclusion.

4.10 The Ombudsman considers that the complainant has not put forward any conclusive evidence to prove that the Commission used illicit means in order to enforce its request. It is true that in the above-mentioned letter of 7 October 2003, the Contractor pointed out that if it continued to resist the Commission's demand that the complainant should be replaced, it would lose the contract. It is not clear whether this statement was based on information the Contractor had received from the Commission or on an interpretation by the Contractor of the Commission's position. However, given that the Commission considered that it was necessary to replace the complainant as team leader, it would in any event be only logical to assume that the Commission would have considered terminating the contract as such if this request had not been complied with. In this context, it should again be recalled that the Commission's objections did not only concern the complainant, but also the Contractor itself. In these circumstances, the Ombudsman considers that no abuse of power has been established as regards this aspect of the case.

4.11 In his observations, the complainant submitted that the Contractor's project director had, on several occasions between July 2003 and the end of October 2003, informed the Interim Evaluation Team (that is to say, the complainant and his colleagues) that Mr S. had brought pressure to bear on him with a view to removing the complainant not only from his position as team leader, but from the team as such, and to employing a replacement candidate who had been in the service of a competing company. In this context, the complainant submitted a statement by Mrs Ö., who had been a member of the Interim Evaluation Team. It should be noted, however, that it emerged from the inspection of the Commission's file undertaken by the Ombudsman's representatives that a person other than Mr A. had initially been considered as a possible replacement for the complainant but that in the course of the discussions with this person no agreement had been reached. It should also be noted that Mr A. appears to have had the necessary qualifications to be employed as the complainant's replacement (see point 5 below). In these circumstances, and in the absence of further elements to show that the Commission had deliberately insisted on removing the complainant so as to make place for Mr A., the Ombudsman considers that no abuse of power has been established as regards this aspect of the case, either.

5 As regards the alleged administrative irregularity

5.1 The complainant alleged that there had been an administrative irregularity, given that Article 17.4(4) of the General Conditions had been infringed.

5.2 In its opinion, the Commission submitted that proper procedures had consistently been applied in the management of the relevant contract, including meeting the requirements of Article 17.4 of the General Conditions, which dealt with the requirements concerning the qualifications and experience of a replacement.

5.3 In his observations, the complainant stated that he maintained his allegation.

5.4 In his request for further information, the Ombudsman asked the Commission to specify how it had complied with Article 17.4 of the General Conditions in this context. The Ombudsman recalled that the complainant had argued that the General Conditions provided that the successor had to have equivalent qualifications and experience and could not receive a higher salary than his predecessor. He also asked the Commission to address the complainant's argument that it had pushed the Contractor to appoint Mr A. as his successor.

5.5 In its reply, the Commission pointed out that the relevant terms of reference provided as follows: "(...) The team leader will have appropriate educational qualifications at graduate or postgraduate level or equivalent experience. (...)." The Commission stressed that although Mr A. had no PhD, his educational qualifications fully complied with the requirements set out above. In addition, his experience, involving several years as an interim evaluation team leader, was clearly more relevant than the complainant's experience. The Commission further pointed out that the fees it had paid for the two experts to the Contractor were identical. It added that as soon as it had been informed of the Contractor's decision to terminate the complainant's assignment, it obviously insisted that the Contractor should make suggestions for a replacement. Three candidates had been presented, and the Commission chose Mr A., who had a very good track record and clearly was the best candidate. According to the Commission, Mr A. had not been working for a competitor's company, but had been employed by the Contractor to work on another project.

5.6 In his observations, the complainant did not make any further, specific comments on this issue.

5.7 Article 17.4 of the General Conditions provides that where a member of staff has to be replaced, "the replacement must possess at least equivalent qualifications and experience and the remuneration to be paid to the replacement cannot exceed that received by the member of staff who has been replaced".

5.8 In its reply to the request for further information, the Commission insisted that the fees it had paid for the two experts concerned (that is to say, the complainant and Mr A.) had been identical. The complainant has not called this last statement into question. Furthermore, there is nothing to suggest that the Commission's statement does not correspond to the facts. In these circumstances, the Ombudsman considers that the complainant has not shown that the Commission has failed to respect Article 17.4 of the General Conditions to the extent that financial issues are concerned.

5.9 As regards the core issue raised by the present allegation, it should further be noted that the complainant did not dispute that Mr A.'s professional experience qualified him to be a team leader. However, the complainant argued that Article 17.4 of the General Conditions demanded that there was equivalence also ("and") as regards the educational qualifications.

5.10 The Ombudsman considers that the wording of the relevant provision indeed suggests that the replacement needs to have both (i) equivalent qualifications and (ii) equivalent experience.

5.11 It should be noted, however, that the terms of reference concerning the relevant contract provided as follows: "The team leader will have appropriate educational qualifications at graduate or postgraduate level or equivalent experience." The Ombudsman agrees that the equivalence required by Article 17.4 of the General Conditions needs to be assessed on the basis of this requirement.

5.12 The Commission has taken the view that although Mr A. had no PhD, his educational qualifications fully complied with the requirements set out above. However, the complainant did have a PhD. If the comparison were to be between the qualifications as such, the conclusion would therefore have to be that Mr A. did not have qualifications "equivalent" to those of the complainant. However, the Ombudsman understands the Commission as saying that the terms of reference required appropriate educational qualifications at graduate or postgraduate level and that this did not necessarily mean that the candidate had to have a PhD. In other words, if Mr A. fulfilled the requirements set out in the terms of reference and could thus have been appointed team leader at the start of the project, the fact that he was chosen to replace a team leader who had a PhD, which he himself did not have, does not affect his suitability for the post concerned. The Ombudsman considers that the Commission's argument does not appear to be unreasonable. Moreover, it should be noted that the terms of reference required appropriate educational qualifications "or" equivalent experience. The relevant position could thus have been filled on the basis of the experience of the candidate, without any need for him or her to have certain educational qualifications. However, and to put it succinctly, if the terms of reference required qualifications or experience, it would not make sense to interpret Article 17.4 of the General Conditions as requiring a replacement to have qualifications and experience. It should be recalled in this context, as mentioned above, that the complainant did not dispute that Mr A.'s professional experience qualified him to be a team leader.

5.13 In these circumstances, no maladministration can be found as regards this allegation.

6 Conclusion

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

Article 17.2 of the General Conditions stipulates that a request for the replacement of a member of a contractor's staff has to be made "on the basis of a written and justified request". This means that the request needs to set out the reasons on which it is based. However, the Commission's letter of 17 July 2003, in which the replacement of the complainant as team leader was requested, simply states that the Commission wished "to reconfirm [its] serious concerns" about the complainant's performance. These concerns are nowhere specified in this letter. In these circumstances, the Ombudsman concludes that the Commission failed to provide the Contractor with a written request properly setting out the reasons on which this request was based. This constitutes an instance of maladministration.

Given that this aspect of the case concerns a procedural issue and that no maladministration was found as regards the substance of the decision taken by the Commission, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) This used to be Article 17.3. The numbering of the General Conditions has changed since 2003. In order to simplify matters, the references in the text will be to the revised version.

(2) 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.

(3) OJ 2001 L 145, p. 43.

(4) This used to be Article 17.3. The numbering of the General Conditions has changed since 2003. In order to simplify matters, the references in the text will be to the revised version.