Background

1. National and regional ombudsmen in the European Network of Ombudsmen may ask the European Ombudsman for written answers to queries about EU law and its interpretation, including those that arise in their handling of specific cases.

2. On 9 February 2022, the Latvian Ombudsman submitted such a query to the European Ombudsman. The query concerns the right to maternity leave of scientists working on projects receiving funding under the European Regional Development Fund (ERDF), one of the European Structural and Investment (ESI) Funds.

3. An association representing a scientist, who was working on a project under the PostDoc Latvia programme (which received funding under the ERDF), turned to the Latvian Ombudsman. The scientist wanted to take maternity and parental leave during the time assigned to the project. To accommodate this, she asked the relevant authorities in Latvia to postpone the deadline for completing the project. The authorities replied, informing her that the applicable rules did not allow for this.

4. Following an investigation into the complaint, the Latvian Ombudsman suggested to the relevant Latvian authority to freeze the project and forward the funding to the next budget period, or until the end of the scientist’s parental leave. The Latvian authority replied that due to the rules applicable to the ERDF (in particular article 65 of Regulation 1303/2013 ^[1]) it was not possible to change the project timeline.

5. The Latvian Ombudsman turned to the European Ombudsman arguing that how the Latvian authorities are applying the ESI Funds essentially leads to discrimination against women. The European Ombudsman found it useful to consult the Commission.

The questions addressed to the Commission

6. Based on the query, the Ombudsman asked the Commission the following question:

Given the provisions in article 7 and recital 13 of Regulation 1303/2013 (Common Provisions Regulation)on the need to promote gender equality, does the Commission have any views on how to overcome the limits of the action deadline in article 65 of that regulation (31 December 2023), where participants in a project covered by the ERDF need to take leave linked to the birth of a child (maternity, paternity or parental leave)?

The Commission´s reply

7. The Commission replied on 12 April 2022, and the reply was sent to the Latvian Ombudsman for possible comments.

8. The Commission stated that, in accordance with article 7 of the Common Provisions Regulation, Member States and the Commission should pursue the objective of equality between men and women and take appropriate steps to prevent any discrimination during the preparation, implementation, monitoring and evaluation of projects or operations under the programmes co-financed by the ESI Funds.

9. Programmes supported by the ERDF are implemented under shared management. While the Commission remains responsible for the implementation of the EU budget, the actual management of EU funds and programmes co-financed by the ESI Funds is delegated to the Member State authorities, including a designated ‘managing authority’.

10. One of the main tasks of the managing authority is the selection of operations to be co-financed by the ESI Funds within the programmes. In accordance with article 125(3) of the Common Provisions Regulation, the managing authority should draw up and, once approved, apply appropriate selection procedures and criteria that ensure the contribution of operations to the priorities of the programme, that are transparent, not discriminatory and take into account the general principles set out in article 7 of the Common Provisions Regulation. In the case referred to by the Latvian Ombudsman, the Commission considered that there is no indication that these requirements have not been complied with.

11. Before starting the implementation of this operation/project, a document setting out the conditions for support (a ’grant agreement’) has to be signed between the managing authority and the organisation receiving the funds for implementing the project (the ‘beneficiary’). This sets out the conditions for support, including the specific requirements concerning the products or services to be delivered under the operation, the financing plan, the time limit for execution, as well as the requirements regarding information, communication and visibility. The Commission is not party to the grant agreements.

12. In this case, it seems that the time limit agreed in the grant agreement between the managing authority and the beneficiary for completing the project was 23 August 2023. The grant agreement may contain provisions allowing for an extension due to maternity/parental leave. However, this is subject to national law.

13. The parties can also modify the conditions of the grant agreement in cases where the agreed time limit is not respected. This could include, for instance, extending the time limit for completing the project. In case of disagreement or breach of the grant agreement, the parties can still use the national appeal mechanisms, including national courts.

14. Expenditure related to projects funded through ESI Funds during the programming period 2014-20, should be incurred and paid by the beneficiary before 31 December 2023. This deadline is set out in article 65(2) of the Common Provisions Regulation and cannot be extended.

15. When a project cannot be completed by the deadline to submit the ‘closure documents’, there are some options^[2] available for the Member States in specific situations and under strict conditions. The Commission has provided guidance^[3] on this. However, the options do not include extending the 31 December 2023 deadline for the eligibility of expenditure.

16. The Commission provided two concrete suggestions to resolve the case referred by the Latvian Ombudsman. (i) The grant agreement between the managing authority and the beneficiary could be modified in a way that the project in question is included in a different programming period, 2021-2027. In order for this to be possible, however the project must: correspond to priorities and objectives in that programme; fall within the eligibility period for that programme; and comply with the applicable selection criteria. (ii) The managing authority could finance the project partially or exclusively using national funds. Under this option, expenditure incurred after the deadline of 31 December 2023 could not be declared as ERDF expenditure, but this could covered using national funds.

The European Ombudsman´s conclusion

17. After having received the Commission’s reply, the Latvian Ombudsman expressed concern that priority was being given to respecting procedural deadlines, rather than guaranteeing equal opportunities for men and women, despite this being a stated objective of the ESI Funds. The Latvian Ombudsman therefore sought to raise the matter with the EU Commissioner on Innovation, Research, Culture, Education and Youth and the EU Commissioner on Equality.

18. Through the query procedure, the European Ombudsman seeks to obtain expert replies from the EU institutions to queries raised by members of the European Network of Ombudsmen about EU law and its interpretation, including those which arise in their handling of specific cases. While the European Ombudsman understands the concerns reiterated by the Latvian Ombudsman following the reply, she thanks the Commission for its efforts to clarify to the extent possible the issue raised in the query.

19. The European Ombudsman therefore closes the query.

The Latvian Ombudsman and the Commission will be informed of this report.

 

Rosita Hickey
Director of Inquiries

Strasbourg, 09/06/2022

 

[1] Regulation 1303/2013 laying down common provisions on the European Regional Development Fund

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013R1303

[2] The Commission referred to two options in its reply:

- Phasing certain operations into the programming period 2021-2027 if the operation exceeds EUR 5 million, has two identifiable financial phases and other conditions are fulfilled. The phased operations could thus benefit from the eligibility periods for expenditure of two programming periods;

- Granting an additional year to complete non-functioning operations that exceed EUR 2 million and for which total expenditure certified does not exceed 10% of the total eligible expenditure allocated for the programme. In this case, the operations are completed using national or other financing sources for the expenditure.

[3] Guidance on the closure of operational programmes adopted for assistance from the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund (2014-2020)(2021/C 417/01)