The background to the complaint

1. The complaint concerns a proposal submitted to the European Research Council ('the ERC') for an "ERC Advanced Grant". Council Decision 2006/972/EC[1] provides for the establishment of the ERC, which "shall consist of an independent Scientific Council, supported by a dedicated implementation structure". The structure referred to is the European Research Council Executive Agency ('the ERCEA'), which was established by Commission Decision 2008/37/EC[2], and which has legal personality. The European Research Council and the Scientific Council do not have legal personality.

2. The Scientific Council is responsible[3] for establishing (i) the Work Programme for the implementation of the specific programme ideas (which are adopted by the European Commission); and (ii) the methods and procedures for peer review and proposal evaluation (of ERC grants). The Commission[4] entrusted the ERCEA to (i) implement the work programme; and (ii) "award grants, conclude and manage the ensuing grant agreements, involving all the operations required to launch and conclude grant procedures"[5]. The Commission is responsible for ensuring the proper execution of the tasks it entrusts to the ERC as a whole (that is, the Scientific Council and the ERCEA).

3. In February 2008, acting on behalf of himself and three of his PhD students, the complainant submitted, in response to the Call for submission of Advanced Grant Proposals ERC-2008-AdG, a proposal for an Advanced Grant to the ERC, entitled "Generalised Variational Problems Arising from Real World Applications".

4. On 22 July 2008, the ERCEA informed the complainant that his proposal had not been proposed for funding, and provided him with a copy of the relevant Evaluation Report. The grade sheet of the Evaluation Report indicated the correct name of the project (see above). However, the comments of the panel and of the reviewers on the Evaluation Report referred to another project: "Stochastic models in population genetics".

5. On 24 July 2008, the European Commission's Directorate-General for Research (DG Research) sent a letter to the complainant stating that he would be informed about the Commission's formal rejection of his application at a later stage. The Commission's letter referred to the correct project title. It also contained information concerning the redress procedure, indicating that the deadline for submitting a request for redress was 25 August 2008.

6. On 28 July 2008, the complainant submitted a request for redress to DG Research. He pointed out that the comments of the panel and of the reviewers referred to the wrong project. He therefore argued that either another project proposal was considered as his or his project proposal was considered so negligently that its subject matter was wrongly identified.

7. In its reply dated 21 October 2008, the Commission stated that the Redress Committee discovered that a mistake had been made during the preparation of the Evaluation Report of the complainant's proposal. The Commission therefore decided that the complainant's proposal should be re-evaluated and reconsidered.

8. The Call for submission of Advanced Grant Proposals ERC-2008-AdG was concluded on 7 November 2008. Given that the grant had already been awarded, the complainant considered that he would not obtain the grant even if the re-evaluation of his proposal proved to be successful[6].

9. On 9 March 2009, the Commission sent to the complainant the results of the re-evaluation procedure, together with the new Evaluation Report informing him that his proposal did not pass to the second stage of the selection procedure[7]. It was therefore not proposed for funding.

10. On the same day, the complainant turned to the Ombudsman to complain about the evaluation of his proposal and the subsequent redress procedure.

The subject matter of the inquiry

11. The Ombudsman opened an inquiry into the following allegations and claim.

Allegations:

1. The ERC failed adequately to respond to the complainant's complaint submitted under the redress procedure.

In support of this allegation, the complainant argued that:

• the application was initially not properly assessed; and

• the subsequent examination of his appeal essentially copied the assessors' initial assessment and, accordingly, is not genuine.

2. There were extensive delays in the redress procedure.

Claim:

The ERC should take appropriate steps to provide the complainant with genuine redress.

The inquiry

12. On 4 May 2009, the Ombudsman asked the ERC to submit an opinion on the above allegations and claim by 31 July 2009.

13. By letter dated 16 June 2009, the European Commission informed the Ombudsman that it would provide him with the requested opinion. This was because (i) the ERC has no legal personality and the ERCEA would only obtain its legal personality on 15 July 2009, and (ii) at the time of the evaluation of the complainant's proposal, the tasks entrusted to the ERCEA were still being carried out by the Commission's Directorate-General for Research.

14. By letter dated 14 September 2009, the Commission asked for the deadline to submit its opinion to be extended until 31 October 2009. The Commission sent its opinion to the Ombudsman on 25 November 2009. The opinion was forwarded to the complainant, who submitted his observations on 5 January 2010.

The Ombudsman's analysis and conclusions

A. The allegation that the ERC failed adequately to respond to the complaint submitted under the redress procedure

Arguments presented to the Ombudsman

15. The complainant alleged that the ERC failed adequately to respond to his complaint submitted under the redress procedure. He argued that his application was initially not properly assessed because the comments of the panel and of the reviewers in the initial evaluation referred (incorrectly) to another project: "Stochastic models in population genetics". This indicated that either another project proposal had been considered as his, or his project proposal had been considered so negligently that its subject matter was wrongly identified. He further argued that the subsequent examination of his appeal essentially copied the assessors' initial assessment and, accordingly, was not genuine.

16. In its opinion, the Commission first summarised the background to the case. It explained that the procedure for the award of grants is governed by:

• Regulation (EC) No 1906/2006 of the European Parliament and of the Council[8] ('the FP7 Rules for Participation');

• the Financial Regulation[9];

• the Work Programme established by the Scientific Council and adopted by the Commission[10];

• the Commission Decision on "the ERC Rules for submission of proposals and the related evaluation, selection and award procedures relevant to the Ideas Specific Programme"[11] ('the ERC Rules for submission of proposals'); and

• the Commission's internal guidelines: (a) the ERC Grant Schemes Guide for Peer Reviews and (b) the ERC Redress Guidelines[12].

17. As regards the procedure for awarding ERC grants, each year the Commission adopts the 'Ideas Work Programme' established by the Scientific Council. This programme specifies the evaluation criteria for proposals under the funding schemes. In the case of ERC Advanced Grants, the Work Programme provides that the evaluation is "conducted by … peer review panels". The members of the peer review panels are independent experts "appointed by the Commission on the basis of a proposal from the Scientific Council of the [ERC]"[13]. In accordance with Article 15(3) of the FP7 Rules for Participation, "proposals shall be ranked according to the evaluation results. Funding decisions shall be made on the basis of this ranking." In fact, frontier research projects shall be evaluated on the basis of the sole criterion of excellence. Such excellence is to be evaluated by a panel of independent experts and not all the proposals are guaranteed funding. The evaluation procedure is carried out by the peer review panels in accordance with the provisions of the ERC Grant Schemes Guide for Peer Reviews.

18. When a proposal for an ERC Advanced Grant is not awarded funding, applicants have the possibility to initiate a redress procedure in accordance with Articles 16 and 17 of the FP7 Rules for Participation and with the provisions of the ERC Rules for submission of proposals. The redress procedure is carried out by the Redress Committee. However, the Redress Committee does not re-evaluate the proposals. It only reviews the CVs of the experts, the individual comments, and the Evaluation Report in accordance with point 3.1.9. of the ERC Rules for submission of proposals.

19. In fact, the Redress Committee is not in a position to evaluate proposals on their merits, since that task is entrusted to the panel of independent experts appointed in accordance with the provisions of the specific Ideas Work Programme. The task of the Redress Committee is two-fold: (i) to verify whether the panel of independent experts carried out the evaluation in accordance with the above mentioned provisions and with the ERC Rules for submission of proposals; and then (ii) to recommend to the authorising officer responsible for the call in question a certain course of action. The final decision on a request for redress is taken by the authorising officer. If the Redress Committee finds that there was a procedural error, it recommends to the authorising officer a total or partial re-evaluation of the proposal concerned.

20. In the present case, the complainant's proposal was assessed by the four independent expert evaluators from Panel ERC PE1. The proposal was evaluated in accordance with the ERC Rules for submission of proposals, which provides for a two-step procedure. If a proposal does not pass the first step of the procedure, the relevant proposal may be subject to a redress procedure. During the first-step of the evaluation procedure, the complainant's proposal was discussed and assessed by the above-mentioned panel.

21. The complainant's proposal was ranked 115th out of the 128 proposals submitted to the panel. Only 48 proposals passed to the second phase of the evaluation procedure. On 22 July 2008, the Commission informed the complainant that his proposal had not been proposed for funding, and provided him with a copy of the Evaluation Report. On 28 July 2008, the complainant submitted a request for redress. By letter dated 31 July 2008, the Commission acknowledged receipt of the request, and informed the complainant that the Redress Committee would assess it accordingly. On 10 October 2008, the Redress Committee acknowledged the fact that the panel of independent experts' had made a factual error during "the preparation of the Evaluation Report". It therefore proposed that the complainant's proposal be "re-evaluated and reconsidered". On 21 October 2008, the Commission informed the complainant accordingly.

22. On 4 December 2008, the complainant's proposal was forwarded for re-evaluation. The re-evaluation concluded that the complainant's proposal did not meet the minimum threshold, and it therefore did not pass to the second step of the evaluation procedure. In fact, the decision of the re-evaluation panel in the new composition was based on the fact that, although there had been a factual error in the initial evaluation, that error did not change the result of the evaluation itself. Thus the position of the proposal in the ranking did not change. The conclusions of the re-evaluation panel were sent to the Commission on 6 February 2009 and forwarded to the complainant on 4 March 2009.

23. In his observations, the complainant maintained his complaint. He argued that his initial proposal was rejected on the basis of an evaluation of another research proposal. The Redress Committee acknowledged this fact. However, the re-evaluation produced a "new report", which was identical to the first report, except for one sentence that had been eliminated. Despite his repeated requests, a real new report was not prepared, which showed a lack of expertise combined with a disregard and disrespect for human values.

The Ombudsman's assessment

24. The Ombudsman recalls that the complainant alleged that the ERC failed adequately to respond to his complaint submitted under the redress procedure. He argued that (i) his application was initially not properly assessed; and (ii) the re-evaluation essentially copied the assessors' initial assessment.

25. As regards the complainant's first argument, the Ombudsman notes that the dedicated procedure to challenge the assessment of an application for Advanced Grants is the redress procedure. This is initiated following a redress request.

26. In this regard, the Ombudsman notes that Point 3.1.9 ('Assistance and redress procedures') of the ERC Rules for submission of proposals provides that:

"[R]equests for redress should be raised within one month of receipt of the results of the peer review evaluation … For issues regarding the peer review evaluation, a committee may be convened under the authority of the ERC Scientific Council to examine the peer review evaluation process for the case in question. If the committee is required to consider eligibilities issues, it may seek advice of the eligibility review committee. The committee will bring together staff with the requisite scientific/technical and legal expertise. The committee itself, however, does not evaluate the proposal. Depending on the nature of the complaint, the committee may review the CVs of the experts, the individual comments, and [the Evaluation Report]. In the light of its review, the committee will recommend a course of action to the ERC DIS."

27. On the basis of the above, it is clear that a redress procedure is not intended to re-evaluate the proposal itself. In fact, it is limited to verifying that no procedural error has been made during the evaluation procedure. It follows from the above that the complainant's challenge to the appropriateness of the initial evaluation could not call into question the panel's scientific appraisal of his proposal by the panel. It was in fact limited to the procedural aspects of the procedure. However, the Ombudsman understands the complainant's argument to relate mainly to the scientific judgement of the evaluation panel. It concerns the administrative nature of the evaluation only to a limited extent.

28. In the present case, in it's reply dated 21 October 2008, the Commission informed the complainant that:

"The Redress Committee has examined your request and has checked that the ERC evaluation procedure has been fully respected in accordance with the ERC rules on proposal submission and evaluation and with the ERC Work programme, the legal document that comprises the rules set up by the Scientific Council of the ERC. The Committee has concluded that there has been an error while preparing the Evaluation Report for your proposal. This is why the Committee recommends that your proposal be re-evaluated and be re-considered by the panel. You will note that the Committee concluded that there was evidence to uphold all or part of your complaint, and that the identified shortcoming in the evaluation process may have jeopardised the decision on whether or not to fund your proposal. Any re-evaluation will be carried out by independent experts under the terms and conditions of the original call. Any additional information that you may have sent in as part of your complaint will not be evaluated. The new evaluation score will be regarded as definitive, even if it is lower than the original one. I will write to you again as soon as the re-evaluation results are known. I regret that in your case the initial evaluation fell short of our normal standards. Although the redress procedure has now put us back on track, the final outcome on your proposal will therefore be delayed, and I would like to thank you in advance for your understanding." (emphasis added)

29. The Redress Committee discovered that there had been a procedural error during the preparation of the Evaluation Report of the complainant's proposal. The Commission therefore recommended that his proposal be re-evaluated and reconsidered. In other words, the Commission not only acknowledged that the complainant's application was initially not properly assessed, but also recommended the appropriate follow-up to be carried out.

30. Given that the redress procedure merely aims to verify whether there has been a procedural error during the evaluation procedure, the Ombudsman considers that the Commission did not fail to respond adequately to the complainant's request for redress. In fact, the Commission accepted the complainant's request for redress and, further to the Redress Committee's recommendation, it also requested the re-evaluation and reconsideration of the proposal.

31. In these circumstances, the Ombudsman does not consider it necessary to examine this argument further.

32. As regards the complainant's second argument, namely, that the subsequent examination of his appeal essentially copied the assessors' initial assessment and, therefore, is not genuine, the Ombudsman notes the following.

33. Upon identifying a shortcoming in the evaluation process that "may have jeopardised the decision on whether or not to fund" the complainant's proposal, the Commission sent the proposal for re-evaluation to a newly composed panel on 4 December 2008. The conclusions of the re-evaluation panel were sent to the Commission on 6 February 2009, which forwarded them to the complainant on 4 March 2009.

34. The Ombudsman notes that an evaluation report consists of the following three parts: (i) panel marks; (ii) panel comments; and (iii) reviewers' comments (per reviewer). The first part ('panel marks') is divided into two sections: the 'Principal investigator' and the 'Research project'. Both sections provide for different aspects to be taken into account in the evaluation[14]. Under each aspect, several questions guide the evaluators in awarding points for the proposal under evaluation. For both sections, a maximum of four points can be awarded. The second part ('panel comments') contains a summary evaluation based on the individual comments of the evaluators. The third part ('reviewers' comments') contains the comments of the four independent evaluators separately, divided into comments on the 'principal investigator' and the 'research project'.

35. The complainant's proposal was initially evaluated by four independent evaluators. Similarly, the re-evaluation was also carried out by four independent evaluators. The Ombudsman notes that, although the two evaluation reports are not identical, as claimed by the complainant, they are indeed very similar. In fact, the points awarded under the first section ('panel marks') are identical in both reports; and the 'panel comments' only differ because the re-evaluation report does not contain the sentence which obviously related to another project. Furthermore, three out of the four 'reviewers comments' in the re-evaluation report are the same as in the initial report.

36. In this regard, the Ombudsman considers that the fact that the re-evaluation procedure resulted in a very similar report does not mean that the re-evaluation was not genuine. The Ombudsman recalls the Commission's statement that the re-evaluation panel's decision in the new composition was based on the fact that the identified shortcoming, a factual error, did not change the result of the evaluation itself. In this context, the Ombudsman understands the factual error to refer to the fact that the initial evaluation report wrongly identified the title of the project under evaluation. The Ombudsman notes that he has not been provided with detailed information regarding the composition of the initial panel and of the re-evaluation panel. However, it appears that some members of the initial panel were also members of the re-evaluation panel. Those members apparently confirmed their previous comments, which were therefore reproduced in the re-evaluation report. The fourth, new member of the re-evaluation panel was required to carry out an evaluation and submit comments on the proposal, which he/she in fact appears to have done.

37. In these circumstances, the Ombudsman does not consider it necessary to examine this argument further.

38. In light of the above, the Ombudsman finds that the Commission did not fail to respond adequately to the complainant's complaint submitted under the redress procedure. Consequently, the complainant's related claim cannot be sustained.

B. Allegation of extensive delays in the redress procedure

Arguments presented to the Ombudsman

39. The complainant alleged that there were extensive delays in the redress procedure. The complainant stated that, on 28 July 2008, he submitted his request for redress because the Evaluation Report for his proposal referred to another project. The Commission acknowledged this mistake only four months later, on 21 October 2008. Furthermore, the results of the redress request were only communicated to him on 4 March 2009, eight months after he submitted his request.

40. In its opinion, the Commission pointed out that the Redress Committee was not only appointed to evaluate the complainant's redress request, but also to evaluate all the requests for redress submitted in the framework of the same call. This meant that, before setting up the Redress Committee, the Commission had to wait for the one-month deadline for applicants to submit requests for redress to expire. In the call in question, this date was 25 August 2008. The Redress Committee convened its first meeting on 10 October 2008, which was followed by two other meetings on 24 October and 2 December 2008. During this period, the Redress Committee had to examine 172 requests for redress. In particular, on 10 October 2008, the Redress Committee examined 55 requests for redress, including the complainant's. Following the Commission's acceptance of the Redress Committee's proposal, the complainant was informed about its recommendations by letter dated 21 October 2008. The complainant's proposal was sent to the re-evaluation Panel on 4 December 2008. On 6 February 2009, the re-evaluation Panel sent its final decision to the Commission. This time period included the Christmas holidays, which resulted in a delay in rendering the final decision of the Panel. Finally, the results of the re-evaluation were sent to the complainant on 4 March 2009.

41. The Commission acknowledged that the redress procedure in the complainant's case was a lengthy process. It argued that this was due to the fact that (i) strict procedures had to be followed; (ii) most of the steps in the procedure took an unavoidable minimum amount of time[15]; and that (iii) the number of cases to be evaluated and the corresponding workload was high. The Commission added that it would endeavour in the future to reduce the delays in informing the applicants of the outcome of the redress procedure.

42. In his observations, the complainant did not comment on this aspect of the case.

The Ombudsman's assessment

43. The Ombudsman notes that the applicable rules and guidelines, as listed under paragraph 15, do not provide for any deadline within which a redress procedure must be finalised. The Ombudsman therefore has to analyse whether the time the Commission took to deal with the complainant's redress request could, in general, be regarded as excessive, taking into account the circumstances of the case.

44. In this context, the Ombudsman notes that Article 17 (Reasonable time-limit for taking decisions) of the European Code of Good Administrative Behaviour[16] ('the Code') provides that:

"1. The official shall ensure that a decision on every request or complaint to the Institution is taken within a reasonable time-limit, without delay, and in any case no later than two months from the date of receipt. The same rule shall apply for answering letters from members of the public and for answers to administrative notes which the official has sent to his superiors requesting instructions regarding the decisions to be taken.

2. If a request or a complaint to the Institution cannot, because of the complexity of the matters which it raises, be decided upon within the above mentioned time-limit, the official shall inform the author thereof as soon as possible. In that case, a definitive decision should be notified to the author in the shortest time."

45. In the present case, the complainant submitted his redress request on 28 July 2008, while the results of the re-evaluation were sent to him only on 4 March 2009. This seems to be well beyond the two-month time limit provided for in the above-quoted Article of the Code.

46. However, the Ombudsman notes that the complexity of the matter in question can justify a longer period of time. In this regard, the Commission explained that the delay in dealing with the complainant's redress request was due to the fact that (i) it had to wait for the deadline for applicants to submit requests for redress to expire, which was 25 August 2008, before the Redress Committee could be set up; (ii) it had to follow strict procedures and most of the steps in these procedures took an unavoidable minimum amount of time; (iii) the Redress Committee had to examine 172 requests for redress in total; and (iv) the actual re-evaluation of proposals was carried out in a period including the Christmas holidays, which further delayed the process.

47. In light of the above circumstances, the Ombudsman considers that the Commission's delay in dealing with the complainant's redress request cannot be considered as excessive in the present case.

48. Consequently, the Ombudsman finds no instance of maladministration corresponding to the complainant's allegation.

49. In addition, the Ombudsman notes that the Commission undertook to "endeavour to reduce the delays in informing the applicants of the outcome of the Redress procedure" in the future. The Ombudsman considers it useful to make a further remark below.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman finds no instance of maladministration corresponding to the complainant's allegations. The complainant's claim must therefore also fail.

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

Further remark

In order to obtain concrete information to support the Commission's commitments relating to the future length of its redress procedures, the Ombudsman would be grateful if the Commission could inform him of the average length of its subsequent redress procedures in similar cases concerning ERC Advanced Grants.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 7 February 2011

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[1] Council Decision 2006/972/EC of 19 December 2006 concerning the specific programme: ‘Ideas’ implementing the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007 to 2013), OJ 2007 L 54, p. 81.

[2] Commission Decision of 14 December 2007 setting up the ‘European Research Council Executive Agency’ for the management of the specific Community programme ‘Ideas’ in the field of frontier research in application of Council Regulation (EC) No 58/2003, OJ 2008 L 9, p. 15.

[3] Pursuant to Council Decision 2006/972/EC and Commission Decision 2007/134/EC establishing the European Research Council, OJ 2007 L 57, p. 14.

[4] Commission Decision C (2008) 5694 delegating powers to the European Research Council Executive Agency with a view to the performance of tasks linked to implementation of the specific programme Ideas in the field of research comprising in particular implementation of appropriations entered in the Community budget.

[5] Article 7 of Commission Decision C (2008) 5694.

[6] It should be pointed out that, by e-mail dated 7 January 2009, the complainant was informed that a provision was made in the relevant budget in order to await for the results of the re-evaluation procedure of his proposal.

[7] In general, the selection procedure for an ERC Advanced Grant takes place in two stages.

[8] Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013), OJ 2006 L 391, p. 1.

[9] Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ 2002 L 248, p. 1.

[10] Available at http://erc.europa.eu/index.cfm?fuseaction=page.display&topicID=24

[11] C(2007)2286 of 06/06/2007, as last amended by Commission Decision C(2007)4429 of 27.09.2007, available at ftp://ftp.cordis.europa.eu/pub/fp7/docs/erc-evrules_en.pdf

[12] Internal documents of the Commission (not published).

[13] Article 17 of the FP7 Rules for Participation.

[14] For the 'Principal Investigator' these are: (i) "Quality of research output/track record" and "Intellectual capacity and creativity". For the 'Research project", these are: (i) "Ground breaking nature of research"; (ii) "Potential impact"; (iii) "Methodology"; and (iv) "High-gain/High risk balance".

[15] These included (i) the treatment of complaints, (ii) the setting up of the Redress Committee, (iii) obtaining the approval of the Commission's relevant Director, (iv) contacting experts and then (v) the re-evaluation panel's deliberations.

[16] Available at: http://www.ombudsman.europa.eu/code/en/default.htm#hl21