THE BACKGROUND TO THE COMPLAINT

1. The complainant is a free lance translator. In November 2005, he completed, for the Translation Centre for the Bodies of the European Union (the 'Translation Centre'), job 'N°AESS/2005/086/00/00 (EN/PT)', which entailed translation from English into Portuguese.

2. The Translation Centre carried out a first assessment of the complainant's translation, in accordance with Article 6.6.1 of the Framework Contract N°ENPT05002/N°FRPT05001 (the 'Framework Contract'), which had been signed between it and the complainant, and concluded that it fell below the acceptable standard. Pursuant to Article 6.6.2 of the Framework Contract, it, therefore, requested a second opinion on the translation from an assessment body, (the 'assessment committee').

3. In his subsequent correspondence, the complainant commented on a number of issues relating to the Translation Centre's assessment of his translation. He pointed out that he had worked for a number of years as a translator for the institutions of the European Union and international organisations and had always obtained good reports for his services. He also expressed doubts as regards the quality of the first assessment and the impartiality of the assessment committee. He, furthermore, repeatedly requested the Translation Centre to provide him with a copy of its final version of the translation (the 'final version').

4. In the meantime, the assessment committee confirmed the evaluation of the complainant's translation as "Très mauvais". The Translation Centre therefore informed the complainant that "the assessment committee has confirmed the mark of "-1" awarded by the first assessor of this document and has decided, in accordance with the terms of [the] framework contract (Article 6, point 6.6.2) that, [the complainant's] ranking should be adjusted downwards. Ten points have been deducted from [the complainant's] quality rating on account of this translation." This meant that the complainant would be in a lower position on the list of contractors for translations from English into Portuguese. The Translation Centre further referred the complainant to the remarks of the assessment committee that "[he] had problems in coping with English syntax. In particular as regards the correlation between adjectives and nouns, which resulted in mistranslations. The recurrence of anglicisms should also be avoided."

5. On 23 February 2006, the Translation Centre sent to the complainant an e-mail containing a table with examples of the errors found in his translation and, on 7 July 2006, a copy of its final version of the translation.

6. In his communication of 7 January 2007 addressed to the Translation Centre, the complainant expressed the view that the vast majority of the corrections enclosed in the final version were either unjustified or inconsistent. He enclosed a table containing a detailed comparative analysis of the original text in English, his translation, and the Translation Centre's final version, and invited the Centre to examine it. The complainant added that he could agree with circa 12% of the reviser's remarks. He went on to state that, on a number of occasions, these remarks concerned minor mistakes only. In the complainant's view, considering that the translation contained almost 15000 words, it was extremely unreasonable that such a low percentage of errors had resulted in his losing 10 points in his quality rating. The decision to downgrade him was therefore unfair and the Translation Centre was ultimately responsible for the reduction in the amount of work the EU institutions were assigning to him following this incident.

7. The following day, the complainant approached the Ombudsman, for the first time, referring to his above correspondence. According to Article 2(4) of his Statute, however, the Ombudsman could not treat this complaint at that stage because the Translation Centre had not yet had the opportunity to take a position on the matters the complainant had brought to the Ombudsman's attention. The Ombudsman therefore closed that complaint and advised the complainant to wait a reasonable time before renewing his complaint.

8. In the meantime, on 9 February 2007, the Translation Centre replied to the complainant, stating that (i) all issues raised by him had been properly analysed by it and also by the assessment committee, that is, the "Interinstitutional Committee for the Evaluation of External Translation Quality (CIEQ), which is an independent body also made up of members of staff from other EU institutions"; (ii) it acted strictly in accordance with the terms and conditions of the contract signed by the complainant; (iii) it fully respects the principle of equal treatment when dealing with contractors; and (iv) it acted in accordance with the rules on procurement as established by Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(1), and Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002(2).

9. On 20 February 2007, the complainant sent the Translation Centre a letter in which he restated his original arguments, but also emphasised that (i) Articles 6.6.1 and 6.6.2 of his contract required that the Translation Centre provide proof that the quality of the assignment was unsatisfactory; (ii) the Translation Centre did not take a position on his detailed linguistic comments; (iii) CIEQ should comment, point by point, on why it considered the linguistic options followed by the Translation Centre and not those of the complainant to be correct; and (iv) he had been suspended for all sub-lots and language combinations and not only for the sub-lot in the language combination concerned, as provided for in his contract.

10. The complainant did not receive a reply to this letter and complained against this fact to the Ombudsman.

11. The Ombudsman used the special telephone inquiry procedure in order to get a reply to the complainant, but was not successful. He therefore opened a normal, written, procedure into this complaint.

THE SUBJECT-MATTER OF THE INQUIRY

12. The complainant alleged that:

1. The Translation Centre's reply of 9 February 2007 was unsatisfactory;
2. The Translation Centre did not answer his letter of 20 February 2007; and
3. Although the Framework Contract could be suspended only for the sub-lot in the language combination concerned, the Translation Centre also applied the suspension to the remaining eight sub-lots in the English to Portuguese translation combination and to all sub-lots in the French to Portuguese translation combination.

The complainant claimed that:

1. The suspension of the Framework Contract for the remaining eight sub-lots in the English to Portuguese translation combination and for all sub-lots in the French to Portuguese translation combination should be lifted; and
2. The Translation Centre should take his detailed comments into consideration and annul its decision to downgrade him.

THE INQUIRY

13. The complainant's above allegations and claims, together with all the documents relating to his earlier complaint, were forwarded to the Director of the Translation Centre for an opinion.

14. In his letter opening the inquiry, the Ombudsman also asked the Translation Centre to provide him with its rationale for not answering the complainant's letter of 20 February 2007, even after the Ombudsman's services had contacted the Translation Centre's relevant services by telephone with a view to promptly solving the matter.

15. The Translation Centre submitted its opinion on 7 September 2007. The opinion was forwarded to the complainant who submitted his observations on it on 22 and 24 October 2007.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. The allegation concerning the quality of the Translation Centre's reply of 9 February 2007

Arguments presented to the Ombudsman

16. The complainant alleged that the Translation Centre's reply of 9 February 2007 was unsatisfactory. In support of his allegation, he argued that the Translation Centre did not take a position on his detailed linguistic comments.

17. The Translation Centre justified its lack of reply on the complainant's detailed linguistic comments with four arguments: first, it had already complied with the relevant contractual provisions by sending the complainant a table containing his main errors(3). Second, it did more than the Framework Contract foresees, by sending him the final version of the translation, but "out of courtesy" only and not "with the aim of initiating an adversarial procedure" with the complainant, which was not, in any case, provided for in the Framework Contract. Third, replying to the complainant's detailed linguistic comments would have been against the principle of equal treatment, and, fourth, would, in addition, have required a considerable amount of time and resources from its staff.

The Ombudsman's assessment

18. As regards the Translation Centre's first argument, the Ombudsman considers it reasonable that "main errors" (emphasis added), or, "a table presenting some of the examples concerning the problems found in the translation" (emphasis added)(4), correspond to the "evidence of unacceptable quality" as foreseen in the Framework Contract. found in the translation

19. As regards the Translation Centre's second argument, the Ombudsman notes with satisfaction that by sending the complainant the final version of his translation the Translation Centre did more than was required by the Framework Contract, and in such a way endeavoured to help the complainant better understand the reasons for the Translation Centre's negative assessment.

20. He is however astonished, and does not understand the Translation Centre's statement that the fact that it had sent the complainant the final version of the translation should not be perceived as having had "the aim of initiating an adversarial procedure" with him. Even if, on the basis of that final version, the complainant was able to expand on his arguments against the Translation Centre, this does not necessarily prove that entering into discussion with the complainant in this respect would undermine the very reason for having sent him that revised version, namely, to help him better understand why his translation work was negatively assessed, besides responding positively to a repeated request.

21. As regards the Translation Centre's third argument, the Ombudsman recalls the case-law of the Community Courts, which establishes that the principle of equal treatment (or non-discrimination) is breached when two categories of person, whose legal and factual circumstances disclose no essential difference, are treated differently, except when this different treatment is objectively justified(5).

22. If the Translation Centre wished to refer to the equal treatment of other free lance translators whose work was also assessed negatively and who also did not receive detailed explanations as regards the assessment of their performances, it does not appear that they requested such explanations. Nevertheless, the Ombudsman does not consider that the principle of equality precludes the Translation Centre from clarifying any ambiguities concerning its assessment of the free lance translators in the context of their direct contacts with it.

23. However, the Translation Centre's fourth argument, that replying to the complainant's specific linguistic comments, which comprise approximately 50 pages of very detailed remarks, would have engaged its services in a considerable amount of time and resources, does not appear to be unreasonable. This is especially so when, as in point 18 above, it may be assumed that the complainant received an appropriate account of the Translation Centre's reasons for its negative assessment.

24. The Translation Centre's above explanations are therefore not unreasonable overall.

25. Principles of good administration require an institution to provide information when it is requested to do so. That information should be as accurate and complete as possible(6). The institution concerned may, however, invoke duly substantiated reasons for not providing the requested information. In the present case, the Translation Centre appears to have done so, albeit belatedly, through its opinion to the Ombudsman. Therefore, no further inquiries are justified into this aspect of the complaint.

B. The allegation concerning lack of reply to the complainant's letter of 20 February 2007

Arguments presented to the Ombudsman

26. The complainant alleged that the Translation Centre did not answer his letter of 20 February 2007.

27. The Translation Centre took the view that it did not need to reply to that letter because it was abusive and repetitive. It emphasised that the total number of e-mails and letters exchanged with the complainant amounted to almost forty.

The Ombudsman's assessment

28. First, the Ombudsman points out that the letter in question contained elements that cannot be reasonably perceived as having been raised previously. Whilst in all his previous correspondence, the complainant refers to issues that fall under his Framework Contract with the Translation Centre, in his letter of 20 February 2007, as the Translation Centre itself admits, "the complainant erroneously quotes the provisions of his contract with the Commission" (emphasis added).

29. Second, principles of good administration require institutions to reply to letters they receive(7). Even if, in accordance with the European Code of Good Administrative Behaviour, a letter can be qualified as repetitive and/or abusive, the Ombudsman considers that the institution should still inform the citizens that, unless they submit new elements, no reply will be sent to them. Moreover, institutions should not automatically classify the correspondence as repetitive before having looked into its content and verified whether it contains any new elements. In the present case, although the Translation Centre must have obviously noted the new element in the complainant's letter in question, it still did not address any reply to him. This was an instance of maladministration on the part of the Translation Centre, which was aggravated further by its failure to show a cooperative approach towards the Ombudsman's special procedure that was designed to handle the matter expeditiously. Therefore, a critical remark will be made in this regard below.

C. The allegation concerning the suspension of language combination sub-lots and related claim

Arguments presented to the Ombudsman

30. The complainant alleged that although the Framework Contract could only be suspended for the sub-lot in the language combination concerned, the Translation Centre also applied the suspension to the remaining eight sub-lots in the English to Portuguese translation combination and to all sub-lots in the French to Portuguese translation combination. He argued that as a result of the negative assessment of his translation, and his consequent downgrading in the freelance translators' quality ranking, he did not receive any more requests for translation work from (i) the Translation Centre, or (ii) the European Commission. In this regard, he emphasised that officials from both institutions participated in the assessment committee.

31. The complainant claimed that the suspension of the Framework Contract for the remaining eight sub-lots in the English to Portuguese translation combination and for all sub-lots in the French to Portuguese translation combination should be lifted.

32. The Translation Centre took the view that the complainant had confused the contract he had with it, and the contract he has with the European Commission ( for translation and/or revision from different language combinations). In this regard, the Translation Centre emphasised that these contracts have no relation whatsoever between them.

The Ombudsman's assessment

33. As regards the complainant's contracts, from the evidence available to the Ombudsman, it appears that the complainant's two contracts are indeed independent of one another.

34. As regards the composition of the assessment committee, CIEQ included, inter alia, four representatives of the Commission (two members, one observer, and one coordinator)(8). The Ombudsman considers it reasonable that a body which is supposed to be an "Interinstitutional Committee" include representatives of the European Commission.

35. The complainant did not provide the Ombudsman with any evidence that would establish a causal link between (i) his downgrading in the Translation Centre's quality ranking of free lance translators; or (ii) the membership of the assessment committee, and the reduction of the amount of work requested from him by the Commission.

36. In light of the above, the Ombudsman does not find any maladministration as regards this aspect of the complaint. Consequently, the complainant's related claim cannot be sustained.

D. The claim that the Translation Centre should take the complainant's detailed comments into consideration and annul its decision to downgrade him

Arguments presented to the Ombudsman

37. The complainant claimed that the Translation Centre should take his detailed comments into consideration and annul its decision to downgrade him. He argued in this respect that the Translation centre's assessment of his translation work was wrong.

38. The Translation Centre, in substance, did not agree with the complainant's above view.

The Ombudsman's assessment

39. The Ombudsman's inquiry however neither involves an assessment of the accuracy of the complainant's translation, which falls within the Translation Centre's discretion, nor the complainant's rank on the list of translators. His review is limited to checking the Translation Centre's compliance with its duty (i) to give reasons, (ii) to apply correct procedures, (iii) not to commit manifest errors of assessment, and (iv) not to misuse its power.

40. As regards the duty to give reasons, the Ombudsman refers to his finding in point 24 above.

41. As regards the procedure, the quality of the work provided by the complainant was subject to a quality control by the Translation Centre and by the 'assessment committee'. This appears to be in accordance with the rules as provided in the relevant Articles of the Framework Contract(9).

42. As regards possible errors of assessment, the Ombudsman notes the complainant's remarks on the Translation Centre's table sent to him on 23 February 2006(10) and takes the view that, provided certain rules, such as those related to terminology, are respected, it cannot be reasonably ruled out that a certain degree of subjectivity is involved in any work relating to linguistic translations, and that different linguistic approaches may be perceived as equally appropriate for a given translation.

43. Relatedly, and also in regard of a possible misuse of powers, it is the Ombudsman's view that a fully independent assessment committee, with competence in the field in question, could indeed play a significant role in setting aside, in a definitive way, any doubts that could exist as to the correctness of a given translation.

44. In the present case, however, the Translation Centre assessed the complainant's work twice: first through an initial assessor, and, subsequently, through the assessment committee(11). Even if the above appears to be in accordance with the provision of Article 6.6.2 of the Framework Contract, according to which, the "assessment committee includ[es] representatives of the Translation Department of the Translation Centre" (emphasis added), the Ombudsman does not see how such composition of the assessment committee may be compatible with the Translation Centre's references to the relevant provisions of the CIEQ's Rules of Procedure which, in its view, guaranteed its independence and impartiality(12).

45. Notwithstanding the above, the complainant did not succeed in demonstrating any causal link between the composition of the assessment committee and the negative outcome of the second assessment of his work.

46. Thus, the complainant's claim that the Translation Centre should take his detailed arguments into consideration and annul its decision to downgrade him, cannot be sustained. Nevertheless, the Ombudsman considers the issue raised in point 44 of this decision to constitute a matter of utmost importance and shall make a further remark in this regard below.

E. Conclusions

For the reasons given in point 25, no further inquiries are justified into the complainant's allegation related to the quality of the Translation Centre's reply of 9 February 2007.

For the reasons given in point 29, an instance of maladministration has been found as regards the complainant's allegation related to the Translation Centre's failure to reply to the complainant's letter of 20 February 2007.

For the reasons given in point 36, no evidence of maladministration has been found as regards the complainant's allegation concerning suspension of different language combination sub-lots. Consequently, the complainant's related claim cannot be sustained.

For the reasons given in point 46, the complainant's claim that the Translation Centre should take his detailed comments into consideration and annul its decision to downgrade him cannot be sustained.

The Ombudsman therefore closes the case. The complainant and the Director of the Translation Centre will be informed of this decision.

F. Critical Remark

The Ombudsman makes the following critical remark to the Translation Centre:

Principles of good administration require institutions to reply to letters they receive(13). Even if a letter can, in accordance with the European Code of Good Administrative Behaviour, be classified as repetitive and/or abusive, the Ombudsman considers that the institution should still inform the citizens that, unless they submit new elements, no reply will be send to them. Moreover, institutions should not automatically classify correspondence as repetitive before having looked into its content and verified whether it contains any new elements. In the present case, although the Translation Centre must have obviously noted the new element in the complainant's letter in question, it still did not address him any reply. This was an instance of maladministration on the part of the Translation Centre, which was aggravated further by its failure to show a cooperative approach towards the Ombudsman's special procedure designed to handle the matter expeditiously.

G. Further Remark

The Ombudsman considers it useful to make the following further remark to the Translation Centre:

The Translation Centre should, in accordance with Article 3(1) of the CIEQ's Rules of Procedure, ensure that no member or alternate of CIEQ is a member of the service responsible for external translations.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 22 October 2008

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(1) OJ 2002 L 248, p. 1.

(2) OJ 2002 L 357, p. 1.

(3) According to the Framework Contract enclosed with the Translation Centre's opinion and forwarded to the complainant for his observations: Article "6.6.3. Where the quality is judged to be unsatisfactory, the Translation Centre will inform the Contractor in writing within one month of receipt of the work. This shall have the effect of suspending the 30 days payment period referred to in Article 5. The assignment will then be referred to the assessment committee mentioned in point 6.6.2 for a second assessment. Where this second assessment confirms that the quality of the work is unsatisfactory, the Translation Centre reserves the right not to pay for the order or to reduce payment for the order and shall inform the Contractor of its intention to do so in writing. The Translation Centre shall provide evidence of unacceptable quality."

(4) In accordance with the wording of the Translation Centre's e-mail to the complainant of 23 February 2007.

(5) See, inter alia, Case T-211/95 Petit-Laurent v Commission [1997] ECR-SC I-A-21 and II-57, paragraph 56; where it is stated that (in the original French): "(...) selon une jurisprudence constante, il y a violation du principe d'égalité de traitement lorsque deux catégories de personnes dont les situations juridiques et factuelles ne présentent pas de différence essentielle se voient appliquer un traitement différent ou lorsque des situations différentes sont traitées de manière identique (...)."

(6) In accordance with Article 22(1) of the European Code of Good Administrative Behaviour:

"The official shall, when he has responsibility for the matter concerned, provide members of the public with the information that they request. (...)."

(7) Article 14 of the European Code of Good Administrative Behaviour.

(8) As evidenced from the "Compte rendu de la 135e réunion du CIEQ du 7 décembre 2005 au Centre de traduction" enclosed with the Translation Centre's opinion and forwarded to the complainant for his observations.

(9) The Framework Contract was submitted to the Ombudsman by the Translation Centre with its opinion and was forwarded to the complainant for his observations. Article "6.6. Quality Control" of the Framework Contract provides that:

"6.6.1. The Translation Centre reserves the right to carry out quality control on all works supplied by the Contractor. The standard assessment sheet used is annexed to this contract (Annex I) and forms an integral part of it. Signature of this contract by the Contractor implies acceptance of this system of assessment.

6.6.2. Each assignment will be assessed by the Translation Centre using the standard assessment sheet (Annex I of the framework contract), which forms an integral part of the framework contract. Where the quality of the assignment is assessed as being of an exceptionally high standard (+1) or an unacceptably poor standard (-1), the assignment will be forwarded to an assessment committee including representatives of the Translation Department of the Translation Centre. This assessment committee will either negate the initial assessment (i.e. reassess the translation/revision at 0) or confirm the initial assessment. Where the initial assessment is negated, the Contractor's ranking remains unaffected. Where the initial assessment is confirmed, an assessment of (-1) will result in 10 points being deducted from the points initially awarded to the Contractor for the qualitative criteria whilst an assessment of (+1) will result in 10 points being added on. This will ensure that the ranking of Contractors reflects the actual quality of the service offered throughout the duration of the contract.

6.6.3. Where the quality is judged to be unsatisfactory, the Translation Centre will inform the Contractor in writing within one month of receipt of the work. This shall have the effect of suspending the 30 days payment period referred to in Article 5. The assignment will then be referred to the assessment committee mentioned in point 6.6.2 for a second assessment. Where this second assessment confirms that the quality of the work is unsatisfactory, the Translation Centre reserves the right not to pay for the order or to reduce payment for the order and shall inform the Contractor of its intention to do so in writing. The Translation Centre shall provide evidence of unacceptable quality."

(10) These remarks state inter alia that: "Design gráfico" was replaced by the Translation Centre by "Concepção gráfica"; "Consultoria sobre estratégias (...)" by "Consultoria em matéria de (...)" which would, in the complainant's view, correspond to a Gallicism used by the Translation Centre, as opposed to this latter's view that the complainant had used far too many Anglicisms. Moreover, "Acabem com esse barulho!" was replaced by "Calem esse ruído!" which would sound, in the complainant's view, rather odd and would even be unacceptable in Portuguese; "(...) e um evento importante" was replaced by "e um evento principal"; "(...) e o seu objectivo é sensibilizar as consequências para os riscos (...)" by "(...) sendo o seu objectivo a sensibilização para os riscos (...)"; and "Design gráfico, trabalhos de layout, de fotogravura" by "Concepção gráfica, formatação, fotogravura".

(11) In accordance with the "Compte rendu de la 135e réunion du CIEQ du 7 décembre 2005 au Centre de traduction", enclosed with the Translation Centre's opinion and forwarded to the complainant for his observations, CIEQ included three members of the Translation Centre, one of whom acted as its President, another as observer, and another as secretary/coordinator. In addition, the Translation Centre's member, acting in the CIEQ as observer, was also the Translation Centre's Coordinator of the External Translation Group.

(12) According to the Translation Centre, Article 3(1) of the CIEQ's Rules of Procedure provides that: "In order to ensure the CIEQ's independence and impartiality vis-à-vis the external translation processes of the institutions and bodies, members and their alternates shall not be involved in the administrative processing of external translations. In particular, no member or alternate shall be a member of a service responsible for external translation" (emphasis added).

Article 5(2) provides that "a document shall not be evaluated by a second evaluator from the institution or body which originally commissioned the translation" (emphasis added).

Article 6 provides that "Contractual responsibility for the quality of a translation lies with the external contractor. In evaluating the quality of documents, the CIEQ shall demonstrate professional integrity, intellectual honesty and openness of mind. In particular, it shall, in the light of the second evaluation apply the principle of fitness for purpose; ensure that these principles are applied uniformly, irrespective of the area of specialisation, the language combination and the institution or body concerned" (emphasis added).

(13) Article 14 of the European Code of Good Administrative Behaviour.