Dear Mr P.,

On 13 September 2000, you lodged a complaint with the European Ombudsman against the Commission on behalf of the "Lycée Régional d’Enseignement Technologique et Professionnel". Your complaint concerned an alleged undue delay on the part of the Technical Assistance Office of the Leonardo Da Vinci Programme to handle your project (ref. F/95/2/2393/P/II.1.1a) and to complete the final payments for it.

On 17 October 2000, I forwarded the complaint to the President of the European Commission. I received the Commission's opinion on 12 February 2001, which I forwarded to you, with an invitation to make observations. On 5 March 2001, I received your observations. On 31 May 2001, I requested further information from the Commission. I received the second opinion from the institution on 12 June 2001, which I forwarded to you, with a further invitation to make observations. On 16 October 2001, I received your observations. You sent me additional information by letter dated 17 December 2001.On 4 December 2001, I wrote to the President of the European Commission in order to seek a friendly solution. The Commission sent its reply on 8 February 2002, which I forwarded to you. On 19 February 2002, you sent me your observations on the Commission's proposal.

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

THE COMPLAINT

According to the complainant, the facts were as follows:

The "Lycée Régional d’Enseignement Technologique et Professionnel" of Anglet (France) had established a joint venture with Mid Kent College of London (UK), ALECOP of Mondragon (Spain), and OFE Installatie of Odense (the Netherlands) for the development of a multilingual CD ROM on home automation. The project was selected by the Community's Leonardo Da Vinci programme for financial asssistance. The final product had to be available in four different languages: Dutch, English, French, and Spanish. Work on the project was undertaken between 1 December 1995 and 30 November 1997.

Following the submission of the final report on 14 February 1998, the complainant claimed that the Commission services kept requesting additional information. Even though the demands were swiftly met, there did not seem to be any follow up on the requested information. As a result, at the end of 2000, the Commission had not reached a decision on the project, nor had it made the final payment of it. The complainant enclosed a lengthy annex consisting mainly of copies of numerous exchanges with the Commission services.

In summary, the complainant alleged that the Commission had not,

1. replied properly and in due time to the information submitted by the complainant;

2. paid the amounts corresponding to the project in due time.

THE INQUIRY

The Commission's opinion

The Commission sent its opinion on 17 October 2000. It explained that the complainant's project (F/95/2393) had been selected in 1995 within the framework of the first phase of the Leonardo Da Vinci programme. The institution then referred to the two allegations made in the complaint:

As regards the alleged lack of a proper and timely reply to the complainant's final report, the Commission described how the evaluation of the project was carried out:

(i) From March 1998 to February 1999: The final report had been sent to the Commission in March 1998. Its evaluation comprised both its outcome as well as the financial aspects. It was undertaken by the "Bureau of Technical Assistance" (BAT), which was managed by Agenor, an independent firm contracted by the Commission. However, on 11 February 1999, at the end of the contractual relation with Agenor, the Commission did not renew the contract. The tasks carried out by the BAT could not therefore be completed.

(ii) From May 1999 to January 2000: In order to complete the work previously done by the BAT, the European Commission set up the CLEO cell, a specific Unit within the Directorate-General for Education and Culture. This service was only in operation in May 1999, and the evaluation of the complainant's final report was taken up again in June 1999. Additional information was requested from the contractor on 25 June 1999, to which he replied by forwarding diverse supportive materials on 7 July and 8 September 1999; 4, 13, 15 and 20 October 1999; and 30 November 1999. The Commission still requested further details on 3 December 1999, which were forwarded on 8 December 1999. Having completed the evaluation of the report at the end of December 1999, the Commission concluded that the financial requests of the complainant were unfounded and that part of the sums already paid had therefore to be reimbursed. Accordingly, it launched the appropriate procedures to have this part of the funding recovered.

As for the Commission's failure to complete the final payment of the project, the institution explained that it had filed a first request for reimbursement on 21 January 2000. Even though this type of request used to be directly sent to the consultants, the procedure was changed when CLEO took over BAT in March 2000. Under the new scheme, requests for reimbursement of sums already paid had first to be forwarded to the Commission's financial service. Once the authorising officer had agreed, the requests along with the necessary supportive evidence were transmitted to the Directorate-General Budget, which is the responsible DG to forward the requests directly to the contractor.

As a result of this cumbersome procedure, the request of reimbursement for an amount of 14.399 € was only sent to the complainant on 20 December 2000. The deadline for the payment was set on 28 February 2001.

The Commission concluded by refuting the existence of any material damages on the part of the complainant. Since the delay did not concern a payment, but rather a request for the reimbursement of sums already paid, the complainant could not claim damages.

The complainant's observations

On 5 March 2001, the complainant sent his observations on the Commission's opinion.

He considered that the Commission had taken a very administrative perspective, which did not correspond to the importance of the project and the efforts all the parties had made for its development.

The complainant explained that the institution had not clearly identified the reasons which justified the request for reimbursement. From the information received, he contested the financial evaluation carried out by the institution, in particular as regards personnel expenses. At the time the project was set out, in 1995, it was hard to forecast how the work would unfold. As a result, it had become necessary to increase the amount initially devoted to personnel at the expense of other budget lines. Nevertheless, the total cost of the project had remained unchanged. The Commission, on the other hand, never informed the complainants about the procedure to be followed to change the initial estimates. The complainant also requested that the request for reimbursement be suspended until the Ombudsman had taken a decision on this matter.

FURTHER INQUIRIES

In view of the available information, the Ombudsman requested further details from the Commission concerning the two allegations made by the complainant. In a letter dated 31 May 2001, the Ombudsman asked for the following information:

(i) Lack of a proper and timely reply to the final report from the complainant: The Ombudsman inquired whether the Commission’s services kept the complainant properly informed of the situation, and/or apologised for any potential inconvenience it might have caused; and

(ii) Failure to complete the payment of the project: Since the Commission had not spelled out the reasons justifying its request for reimbursement of part of the funds already paid, the Ombudsman asked for more details of this aspect of the case, in particular on the application in this case of point 1.1 of Annex II (Financial Aspects) of the contract(1).

The Commission’s second opinion

The Commission sent its second opinion on 31 July 2001, after having requested on 12 June 2001 an extension of the deadline for the reply. The institution separately addressed the two aspects of the cases for which the Ombudsman had requested further information.

As for the lack of proper and timely replies, the Commission stressed that following the submission of the final report in March 1998, its services had held numerous exchanges with the complainant on both the content and the financial aspects of the project. In a detailed table, the institution described the nineteen exchanges which took place between January 1998 and December 1999, which included two requests on the outcome of the project and four on its financial aspects. In addition to these formal contacts, the Commission confirmed that its services had had regular telephone contacts with the complainant, in the course of which they had kept him informed of their intent to request a reimbursement of part of the payments already made.

As for the Commission's failure to complete the final payment, it explained that the costs which could not be paid had been thoroughly described both in a letter and a fax addressed to the complainant on 20 December 2000, and 26 February 2001, respectively. As regards the ineligibility of certain personnel costs requested by the complainant, the Commission justified its refusal on the basis of the rules set out in the "Financial and Administrative Manual", which had been sent to the complainant in December 1996. Point II.2.3 of these Rules establishes that transfers between budget lines, may be accepted if they do not alter the project's goals. However, if the proposed change goes beyond 15% of the amount initially foreseen for that line, and involves more than 1.500 €, prior authorization from the Commission is required. The institution explained that in this case, the changes made by the complainant regarding the personnel costs of the project went beyond the aforementioned limits, and the complainant never requested prior authorization from the Commission. As a result, the institution could not fund these costs.

The Commission also referred to other reasons which supported its request for reimbursement of part of its contribution, such as the lack of sufficient details on the nature of some expenditures, the failure to provide documentary evidence of some personnel costs, or the trips carried out outside the contractual period.

In view of the Ombudsman's inquiry, the Commission agreed to postpone the deadline for the reimbursement of sums already paid, but suggested that the complainant submit a letter to its services detailing his objections.

The complainant’s observations on the Commission’s second opinion

In a letter dated 11 October 2001, the complainant replied to the arguments put forward by the Commission.

Despite the numerous exchanges by letter and telephone with the Commission, the complainant pointed out that he had received no suggestion or advice on how to improve the situation. He underlined that his main disagreement with the Commission related to the amount of personnel expenditures reflected in their final report, and insisted on the fact that the total costs foreseen in the initial proposal had not suffered any increase.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and observations, the Ombudsman did not consider that the Commission had responded adequately to the complainant's claims. The Commission had justified its request for the reimbursement of part of the expenses, on the grounds that the complainant's final financial request was unfounded. In particular, the institution had taken the view that the increase of the project's personnel costs without prior approval from the institution was improper. The Ombudsman noted that on the basis of point 1.1 of Annex II of the contract (Financial Aspects), the consultant was allowed to modify the initial project's estimates, and thus transfer money between different budget lines.

The Ombudsman’s provisional conclusion was that in the absence of a more convincing explanation, the reasoning given by the Commission to reject the complainant's request for a final payment of his project did not appear to be founded in the rules of the contract. The Ombudsman therefore proposed by letter dated 4 December 2001 that the Commission modify its stand in accordance with the previous considerations and reconsider the complainant's request for the final payment.

The Commission sent its reply on 1 February 2002. The institution explained that on the basis of the considerations made by the Ombudsman, it had reviewed the case with a conciliatory spirit. Taking into account that the contractor had not been given the Commission's administrative and financial handbook but only after the signature of the convention and also that the foreseen aims of the project had been fully achieved, the Commission expressed its willingness to accept the proposed budgetary changes. A letter in that regard was to be sent to the contractor.

It pointed out, however, that in a letter dated 18 October 2001, the complainant had contested the ineligibility of some other expenditures. In a reply dated December 2001, the Commission requested further evidence as regards these dues.

In summary, the Commission agreed to reconsider its request for reimbursement, and to complete the payment of the project for almost the whole amount foreseen in the contract. This outcome should only be dependent on the need for the complainant to furnish some additional evidence.

On 19 February 2002, the complainant sent his observations on the Commission's proposal. He welcomed the solution suggested by the Commission, and agreed to furnish, as many as possible of the requested documents. The complainant expressed his willingness to do his utmost, so that the best possible solution could be achieved. He thanked the Ombudsman for the efforts undertaken on his behalf.

THE DECISION

On the basis of the information gathered in the course of his inquiry, the Ombudsman concludes that the case has been settled by the European Commission to the complainant’ satisfaction.

Against this background, the European Ombudsman decides therefore to close the case.

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

Yours sincerely,

 

Jacob SÖDERMAN

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(1) "Les montants prévisionnels indiqués par le Contractant en regard des différentes catégories de dépenses n'auront qu'une valeur indicative et le Contractant pourra procéder à des virements entre ces différentes catégories, à condition toutefois que ces virements n'affectent pas fondamentalement l'objet ou le contenu des travaux à effectuer".