Strasbourg, 4 February 2008

Dear Ms V.,

On 8 May 2006, you submitted a complaint to the European Ombudsman against the European Commission. The complaint concerned the actions taken against you by the Commission Delegation in Lima (Peru), in the framework of an EU-funded project for the modernisation of the country's health sector. You sent me additional information on 13 and 26 June 2006.

On 27 June 2006, I informed the President of the Commission of your complaint and asked him to submit an opinion on it by 30 September 2006. On 11, 13 and 17 July 2006, you sent me additional information, which I forwarded to the Commission on 17 July 2006.

On 7 August 2006, you sent me additional information. On 28 September 2006, you informed me of your new address.

In the absence of any further information, I wrote to the Commission on 23 October 2006, requesting that an opinion on your case be sent to me by 31 October 2006. On 25 October 2006, the Commission replied to my request, and informed me that its reply should be forthcoming. On 8 November 2006, the Commission sent its opinion in English. On 27 November 2006, it sent the Spanish version of its opinion, which I forwarded to you with an invitation to make observations, if you so wished.

On 27 November 2006, you informed me of your new e-mail address.

You sent me additional information on 6 March, 19 and 29 April, 15 and 17 October, as well as on 19, 20 and 23 November 2007.

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

THE COMPLAINT

According to the complainant, the facts of the case are, in summary, as follows:

The complainant is a medical specialist, who worked in Lima ( Peru) as the European co-director of an EU-funded project, known as AMARES. The project was designed to improve the Peruvian health system ( "Apoyo a la modernización del sector salud y su aplicación en una región de Perú"; ref.: PER/B7-310/97/209). The European Commission partially financed the project through a contract of assistance signed with a third party, namely, the Spanish firm "Consorci Hospitalari de Catalunya Consultancy i Gestió S.A." ("CHC/CIG"). The project was to be implemented over a five-year period, from 2002 until 2007.

On 25 August 2005, the acting head of the Commission Delegation in Peru ("the Delegation") wrote to CHC/CIG requesting the complainant's dismissal. Subsequently, the Delegation contacted another member of the AMARES team to inform him that, since the complainant was due to leave the project, he had been appointed temporarily as the European co-director. The Peruvian authorities were also notified of this change.

The complainant argued that she had never requested any change of position, nor had she expressed her intention to leave the project. On 28 October 2005, the complainant lodged a formal complaint with the Commission. The responsible services, namely, the EuropeAid Cooperation Office ("DG AIDCO") replied to the complaint on 19 January 2006, endorsing the position taken by the Delegation. The complainant then lodged an appeal with the Commission's Secretary-General who sent his reply on 21 March 2006. In his reply, the Secretary-General argued that the decision taken by the Delegation to request the release of the complainant from her duties as the European co-director of the AMARES project was the result of the differences in opinion which had arisen between her and the Delegation staff during the implementation of the project.

In her complaint to the Ombudsman, the complainant noted, however, that no complaint or negative remark had ever been made by the Commission in relation to her. She attached to her complaint a number of letters from the Head of Delegation as well as from several officials which referred in a very positive manner to the work carried out by her as the European co-director of the project.

In the absence of any explanation justifying the Commission's request to CHC/CIG to have her dismissed, the complainant took the view that the decision had been motivated by considerations based on gender, and was therefore discriminatory.

The complainant explained that, following the Commission's decision to have the complainant replaced by another expert, a number of unexpected difficulties in finding a suitable candidate arose. Furthermore, the Peruvian authorities and a number of Commission officials from DG AIDCO did not wish to support the position taken by the Delegation. As a result, the Commission informed the complainant that she was to remain in her post, first until 30 September 2005, and then until 31 December 2005, 30 April 2006, 31 May 2006 and 31 July 2006.

The complainant argued that she was never consulted as regards the Commission's proposal to have her contract extended and that she only became aware of this proposal informally. She further noted that, in accordance with the provisions of her contract with CHC/CIG, any renewal of her position could only be made for the period remaining until the completion of the AMARES project, foreseen for 2007.

The situation resulted in a number of major personal problems for the complainant. She mentioned, in particular, the situation of her young son, who had unexpectedly to leave school in Peru and to move back to Spain, thereby suffering serious problems relating to his schooling.

The complainant also referred to the problems relating to the renewal of her visa and that of her son. She explained that, although she had requested an extension of these visas on 1 September 2005, the Commission failed to act on her request and, instead, asked the Peruvian authorities to cancel her visa. The subsequent extensions of her contract, however, had not been accompanied by a renewal of her visa as a result of the Commission's failure to take the necessary measures vis-à-vis the Peruvian authorities.

Following her dismissal as a European co-director of the AMARES project, the complainant wrote to the Delegation on a number of occasions. She alleges that none of her letters and e-mails were replied to.

In summary, the complainant alleges that the Commission failed to:

(1) provide any reasoning in support of its request of 25 August 2005 to the complainant's employer, CHC/CIG, not to renew her position as the European co-director of the project AMARES. In the absence of any reasoning, and taking into account the alleged animosity towards her by some officials in the Delegation, the complainant alleges that the request was based on grounds of gender and was, therefore, discriminatory;

(2) inform the complainant in a proper manner and with due diligence of the decisions proposed by its services concerning her work for the AMARES project, such as the request to dismiss her, or the subsequent numerous decisions temporarily to renew her position;

(3) comply with the applicable legal clauses whereby any renewal of the complainant's contract should have been made for the period remaining until the completion of the AMARES project, foreseen for 2007.

(4) properly handle her request to have her and that of her son's visas extended as of 1 September 2005;

(5) reply to a number of e-mails and letters addressed to the Delegation, regarding her professional situation in the AMARES project.

On 11, 13 and 17 July 2007, the complainant forwarded to the Ombudsman copies of an exchange of e-mails with the Delegation concerning the drafting of the minutes of a meeting held at the Delegation on 10 May 2006 in which the complainant, the Peruvian authorities and Delegation staff participated. It appears that, in the course of the meeting, the Peruvian authorities warmly thanked the complainant for the quality of the work she had undertaken. The minutes of the meeting, which the Delegation staff drafted, did not, however, convey these remarks. In her new correspondence, the complainant argued that the Commission modified the minutes of the meeting by deleting the sections of the document reflecting the satisfaction of the Peruvian authorities with the complainant's performance.

By letter of 17 July 2006, the Ombudsman transmitted this additional information to the Commission and asked it to take these facts into account, when preparing the institution's opinion.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first explained the background to the case. It noted that the EU-funded project AMARES, for which the complainant had been working, involved "Support for the modernisation of the health sector and its implementation in a region of Peru". The Financing Agreement between the European Community and the Republic of Peru had been signed in 1997, within the context of a health sector reform. Political and institutional changes blocked the start of project activities until 2002.

The Commission explained that the AMARES project had a total budget of EUR 16.5 million and a life span of five years. Its two general objectives were to contribute, together with the Peruvian authorities, (i) to the implementation of the reform of the health sector at the national level and (ii) to the fight against poverty through the improvement of the population's health. The project was to be led by two co-directors, a European national and a Peruvian national.

In order to achieve the aims of the project, the two co-directors had to develop and maintain close working relations with all the relevant authorities.

On 1 August 2002, the Commission and CHC/CIG signed a Technical Assistance service contract, according to which CHC/CIG would provide the technical assistance personnel defined in the Financing Agreement.

On 20 August 2002, the complainant signed a service provision contract with CHC/CIG, as a freelance expert professional. The contract specified that the complainant should be appointed as the European co-director of the project as of 31 August 2002. It foresaw the possibility of a renewal after three years.

As regards each of the specific allegations made by the complainant, the Commission made the following remarks:

(1) Reasoning for the replacement of the complainant and alleged discrimination on grounds of gender

The Commission stressed the unjustified nature of the charge made by the complainant regarding the alleged discrimination on grounds of gender. It argued that the problems or tensions related to the complainant's performance were completely unrelated to her gender.

The Commission explained that, as a result of a complaint which the complainant had lodged with its services (reference A/19657), it had already reviewed all allegations of discrimination on the basis of the provisions set out in its Code of Good Administrative Behaviour. In the course of its inquiry, the Commission analysed and verified the attitudes of its services towards the complainant. The Commission found no trace of any treatment intended to discredit or offend her person or any indication that she had been treated in a different, special or discriminatory manner on the grounds that she was a woman. The Commission also found no evidence of moral harassment, harassment at work or any similar type of behaviour.

The Commission underlined that it actively promotes equality and equal opportunities between genders and employs thousands of women all over the world.

Concerning the reasons why the Commission asked for the complainant's replacement, it referred to the deterioration of the relationship between the complainant and the Delegation's staff, and the complainant's wish to leave the project.

As regards the deterioration of the relationship between the complainant and the Delegation's staff , the Commission referred to a number of exchanges between the complainant and several officials of the Delegation dated 10, 14 and 28 October 2004, as well as 26 January 2005, which revealed that relations between the complainant and the Delegation had become "uneasy". Furthermore, the Commission underlined that, during the following months, the complainant regularly stated that she understood that the Delegation had ceased to have confidence in her.

The Commission noted that the complainant had expressed, on several occasions, her intention to leave the project. The Commission referred to one e-mail, dated 21 February 2005, in which the complainant asked the Delegation for a certificate in which her work as the European co-director would be acknowledged in order to allow her to apply for others posts. Similar remarks had been made orally to the Delegation staff in March 2005.

The Commission argued that, in light of the above facts, it was understandable that, on 25 August 2005, the Delegation took the decision to request CHC/CIG to find a substitute for the complainant.

(2) Information furnished to the complainant regarding her work for the AMARES project

The Commission explained that, when taking the decision to remove the complainant from her post, the project management team at the Delegation took into consideration the end date of her contract, with an eye to avoiding an abrupt rupture of the contractual relations between her and CHC/CIG.

The Commission underlined that any contractual obligations towards the complainant should have been borne by CHC/CIG , since the institution did not have a contractual relationship with her. The Commission further explained that Article 15(3) of the General Conditions of the contract signed between the Commission and CHC/CIG gave the Commission the possibility to request a change of staff due to "incapacity, inadequacy or any other cause". Article 9 of the Agreement between the complainant and CHC/CIG also foresaw the possibility that the contract could be terminated as a result of instructions given by the Commission.

When taking its decision, the Delegation took into consideration the need to maintain the stability of the project and did its utmost to avoid unnecessary negative consequences for the complainant. To that end, various conversations were held with the Peruvian authorities, the complainant and the Commission services in order to extend the complainant's assignment. Prior to these extensions, the management team, in direct co-ordination with the complainant, always ensured the complainant's agreement, despite the absence of a direct contractual relationship between the Commission and the complainant.

(3) Breach of contractual obligation to have the complainant's contract renewed until the competition of the AMARES project in 2007

The Commission explained that this aspect of the case concerns the contractual relationship between CHC/CIG and the complainant, since the Commission did not have a contractual relationship with the complainant. The Commission mentioned however that Article 1 of the complainant's agreement with CHC/CIG foresaw an initial duration of three years, renewable until the end of the project except if Articles 9, 10 or 12 were triggered. Article 9 established the possibility of terminating the Agreement if the Commission were to request the replacement of the expert, as happened in this instance.

(4) Handling of the complainant's visas

In September 2005, the Delegation sought to ensure the complainant's orderly departure from Peru after the proposed end of her assignment on 30 September 2005. However, the complainant's refusal to accept the one-month extension of her contract precipitated events, and as a result, an immediate departure stamp was issued. The Delegation's subsequent efforts to alleviate the adverse effects of the complainant's situation and to come to an agreement between all the parties resulted in a three-month extension of the complainant's assignment until 31 December 2005. Further, on 14 December 2005, a meeting took place between the complainant and the Delegation in which it was agreed to extend the complainant's contract until 30 April 2006.

The Delegation immediately took the necessary procedural steps to renew the complainant's visa. That visa was not collected by the complainant despite the efforts of the Delegation and the Peruvian consular services.

(5) Failure to reply to the complainant's correspondence

The Commission admitted that it had had difficulties in dealing with the correspondence sent by the complainant. Even though the institution highlighted the fact that, in her correspondence, the complainant frequently repeated questions that had already been answered in writing or verbally in meetings, the Commission presented its apologies to the complainant for its failure to reply to her correspondence.

(6) Minutes of the meetings of 10 May 2006

The Commission described in detail the course of events which led to the disagreement with the complainant. It appears that, at the end of the meeting held on 10 May 2006 with the complainant and the Peruvian authorities, the Commission prepared a brief summary of the discussion. The document only referred to the participants and the points agreed upon. On 11 May 2006, the complainant suggested a number of amendments to the text, including a new point 1 to describe the positive comments made by the Peruvian authorities concerning her successful implementation of the project. The Delegation raised some objections to this suggestion on 16 May 2006. The complainant commented on these objections on 17 May 2006. The final text was agreed upon by the different parties on 17 May 2006. The Delegation, however, submitted a draft to the Peruvian authorities which did not take account of the complainant's objections. The Commission recognised that this procedure had been erroneous. Following the complainant's formal request of 8 July 2006, the Commission reconsidered the situation and, on 18 July 2006, resubmitted to all the parties the minutes originally agreed upon by the complainant.

The Commission expressly regretted the unfortunate series of events which occurred in the finalisation of the minutes of the meeting. It noted, however, that any grievance which the complainant might have suffered with respect to the procedure had being corrected by the signature, by all parties, of the minutes which the complainant had approved.

The complainant's observations

In her observations on the Commission's opinion, the complainant restated the allegations made in her complaint.

She considered that the inquiry carried out by the Commission in reply to her complaint had not sought to establish the truth. As illustrated by the reply of the Commission services of 19 January 2005, and that of the Secretary-General of 21 March 2006, the Commission's inquiry was, in the complainant's view, a means to cover up the actions taken by the Delegation in breach of the complainant's rights.

The complainant pointed out that the Commission first sought to replace her on 25 August 2005. At that time, the Delegation had written to CHC/CIG, informing it of the existence of "contradictory rumours" that the complainant wished to leave her post. The complainant rejected these "rumours" and underlined that she had never indicated her intention to leave her post. Moreover, the reference requested in February 2005 was only intended to be used in the event her contract was not renewed.

The complainant also denied that there were any problems with the members of the project, including most of the Delegation staff, with whom she had good working relations for the four years in which she worked on the project. The complainant noted that the actions against her had been taken by a number of Delegation officials, who took advantage of the absence of the Head of Delegation. Since the early departure of the complainant without a replacement could have endangered the implementation of the project, she was asked to stay for an additional month (that is, until 30 September 2005).

The complainant, however, faced with a situation in which the extension of her contract would only be effective until 30 September 2005, insisted that the renewal of the contract be made effective until such time as the project had been completed. In the absence of the complainant's agreement to remain only until 30 September 2005, the Commission unilaterally forced her dismissal.

The complainant noted that she could not prove that the Commission had discriminated against her on grounds of gender. However, since the institution had been unable to provide any proper reasoning for its actions, she understood that that was the only possible cause. She also argued that the situation could be characterised as harassment. The complainant explained that, in the course of the project, she had informed the Delegation of a potential conflict of interest by the Peruvian co-director of the project, and that such a communication to the Delegation may have led to her dismissal.

As regards the information furnished to her, the complainant explained that the Commission justified its position on the grounds that it did not have a contractual relationship with the complainant, and that she should have tried to exercise her rights vis-à-vis CHC/CIG. Having started a legal action before the competent Spanish courts against CHC/CIG, the complainant noted that she had been deprived of her rights of defence since CHC/CIG had argued that it had had no other option but to follow the request made by the Commission. The complainant considered that the Commission should not have asked for a change of co-director without explaining its request properly.

The complainant pointed out that, from 1 September 2005, the Delegation had kept both her passport and that of her son. Even though the Delegation was aware of the difficulties related to the renewal of her contract, it asked the Peruvian authorities to issue exit orders. This situation led to the immediate departure of her son. As regards the complainant, no real efforts were made by the Delegation to renew her visa, although her contract had in fact been extended until 31 July 2006. Despite the complainant's numerous requests, the Delegation did not take the appropriate steps to have her visa renewed and, as a result, she had to carry out her official tasks in Peru until June 2006 whilst on a tourist visa.

On the basis of the information submitted, the complainant asked the Ombudsman, among other things, to request the Commission both to compensate her for the moral damage she had suffered, and to take disciplinary action against the responsible services.

Additional information sent by the complainant

On 6 March, 19 and 29 April, and 15 and 17 October 2007, the complainant sent additional information.

By e-mail of 6 March 2007, she forwarded to the Ombudsman a copy of her message to the Commission, concerning the financial irregularities which, in her view, had taken place in the implementation of the project and which were the real reason for her dismissal.

On 29 April 2007, the complainant forwarded to the Ombudsman a copy of the letters she had addressed to both the Head of Delegation and to CHC/CIG, arguing that, in the course of her work as the European co-director of the project, she had been the victim of harassment by a number of officials from the Delegation.

The complainant also sent a number of documents pertaining to the legal proceedings she had started before the Spanish courts against CHC/CIG, alleging breach of her employment contract. On the basis of the complainant's e-mail of 6 March 2007, it appeared that, on 19 January 2007, the labour court dealing with the case dismissed the complainant's action on procedural grounds(1). This decision was set aside by the Catalonia Supreme Court on 18 June 2007. Thereafter, on 27 September 2007, the labour court ruled on the substance of the case, and upheld the complainant's claims(2). On 15 and 17 October 2007, the complainant forwarded to the Ombudsman a copy of the ruling.

THE DECISION

1 Preliminary remarks
Allegations and claims made by the complainant

1.1 In her observations on the European Commission's opinion, the complainant restated the allegations made in her complaint. In addition, she included a number of claims which were not part of her original complaint. In particular, she claimed (i) that the Commission should both compensate her for the moral damage she had suffered and (ii) take disciplinary action against the responsible services.

Unlike the new allegation concerning the alteration of the minutes of a meeting held on 10 May 2006, which was made by the complainant subsequent to her initial complaint, the first new claim concerning compensation was made when the Ombudsman's inquiry was nearly completed and after the Commission had already given its opinion on the original complaint. As a result, the Commission had, in the framework of the present inquiry, no opportunity to be informed in relation to the new claims and to explain its position in relation thereto. Since bringing this new claim, made by the complainant in her observations, to the attention of the Commission would have required the Ombudsman to make further inquiries and therefore to delay the adoption of the present decision, he decided not to deal with it in this decision. The Ombudsman will thus limit the scope of his decision to the allegations to which the Commission replied in its opinion. The complainant is, however, free to lodge a new complaint on this point, if she so wishes, providing full details of the correspondence concerned.

As regards the second new allegation concerning disciplinary action, the Ombudsman points out that disciplinary measures can only be imposed in accordance with the relevant provisions of the Staff Regulations, which contain clear rules as to how disciplinary proceedings are to be conducted, including in particular the right of the officials concerned to be heard. The Ombudsman is therefore unable to pronounce himself on a claim that such sanctions should be imposed in a given case and will not deal with such allegation in the present decision.

Ruling of a Spanish court in an action lodged by the complainant

1.2 In the course of his inquiry, the Ombudsman was informed by the complainant that she had brought legal action against her employer, namely, the Spanish firm "Consorci Hospitalari de Catalunya Consultancy i Gestió S.A." ("CHC/CIG") before the Spanish courts, alleging breach of her employment contract. On the basis of the documents submitted by the complainant on 6 March, as well as on 15 and 17 October 2007, it appears that, on 19 January 2007, the Spanish labour court dealing with the case dismissed the complainant's action on procedural grounds(3). This decision was set aside by the Catalonian Supreme Court on 18 June 2007. Thereafter, on 27 September 2007, the Spanish labour court issued a ruling which found in favour of the complainant. The court stated that the termination of her contract was not in accordance with applicable rules and that she had the right to continue to be employed by CHC/CIG as the European co-director until the completion of the project(4).

1.3 The Ombudsman recalls that, as set out in Article 195 of the EC Treaty:

"In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds (...) except where the alleged facts are or have been the subject of legal proceedings."

Furthermore, Article 2(7) of his Statute indicates that:

"When the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed definitively."

1.4 The Ombudsman has carefully reviewed the ruling issued by the Spanish court, including the factual and legal issues that the court reviewed. It appears that the application to the court concerned whether CHC/CIG breached its contractual obligations and/or employment law with respect to the complainant. The Ombudsman notes, however, that the present complaint concerns the way in which the Commission exercised its powers under the General Conditions of the contract relating to the Amares project and, more specifically, the actions allegedly taken by the Commission to the detriment of the complainant. The actors in the two situations are different.

In view of the above considerations, the Ombudsman takes the view that the relevant facts and allegations reviewed in the course of his inquiry are not identical to those which the Spanish court took into consideration when issuing its ruling. Accordingly, the Ombudsman finds that, in the present case, the rules contained in Article 195 of the EC Treaty and Article 2(7) of his Statute are not of direct relevance. As a result, there appear to be no grounds to suspend his inquiry.

1.5 The Ombudsman is, however, mindful of the fact that some of the findings of law and fact made by the Spanish court in its ruling are relevant for his inquiry. The Ombudsman finds that the court's interpretation of the clauses of the contract between the complainant and CHC/CIG as well as its findings of fact are relevant to the present complaint. In this respect, the Ombudsman recalls that Article 1(3) of his Statute reads as follows:

"The Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling."

The Ombudsman cannot call into question the facts determined to exist by the court or the court’s interpretation of the clauses of the contract between the complainant and CHC/CIG.

As regards these aspects of the case, the Ombudsman will rely therefore on the findings made by the Spanish court in order to evaluate whether the Commission acted properly.

2 Commission's request to have the complainant replaced

2.1 The complainant alleged that the Commission failed to provide any reasoning in support of its request of 25 August 2005 to the complainant's employer, CHC/CIG, not to renew her position as the European co-director of the project AMARES. In the absence of any reasoning, and taking into account the alleged animosity shown towards her by some officials in the Delegation, the complainant alleged that the request was based on grounds of gender and, therefore, discriminatory.

2.2 The Commission explained that Article 15(3) of the General Conditions of the contract signed between the Commission and CHC/CIG gave the Commission the possibility to request a change of staff due to "incapacity, inadequacy or any other cause". Article 9 of the Agreement between the complainant and CHC/CIG also foresaw the possibility that the contract could be terminated as a result of instructions given by the Commission. The Commission argued that the reasons for seeking the complainant's replacement, as laid down in its letter to CHC/CIG of 25 August 2005 , were the deterioration of the relationship between her and the Delegation's staff, and the complainant's wish to leave the project . As regards the alleged deterioration of the relationship between her and the Delegation's staff, the Commission referred to a number of exchanges between the complainant and several Delegation officials dated 10, 14 and 28 October 2004, as well as 26 January 2005, which apparently showed that relations between the complainant and the staff of the Delegation had become "uneasy". The Commission also noted that, on several occasions, the complainant had expressed her intention to leave the project, as illustrated by an e-mail which she had addressed to the Delegation on 21 February 2005.

The Commission underlined that there was no evidence that its services acted incorrectly towards the complainant or that she had been treated in a different, special or discriminatory way on the grounds that she is a woman.

2.3 According to Article 195 of the EC Treaty, the Ombudsman is empowered to receive complaints "concerning instances of maladministration in the activities of the Community institutions or bodies". The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it(5). Maladministration may thus also be found when the fulfilment of obligations arising from contracts concluded by the institutions or bodies of the Communities is concerned.

2.4 However, the Ombudsman considers that the scope of the review that he can carry out in such cases is necessarily limited. The Ombudsman is of the view that he should not seek to determine whether there has been a breach of contract by either party, if the matter is in dispute. This question could be dealt with effectively only by a court of competent jurisdiction, which would have the possibility to hear the arguments of the parties concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact.

2.5 The Ombudsman therefore takes the view that, in cases concerning contractual issues, he is justified in limiting his inquiry to examining whether the Community institution or body involved has provided him with a coherent and reasonable account of the legal basis for its actions and with the reasons why it believes that its view of the contractual position is justified. This is consistent with the principle of good administration whereby Community institutions or bodies should not act arbitrarily and should, therefore, always explain the positions they take(6). When the Community institution or body respects the above principle, the Ombudsman will conclude that his inquiry has not revealed an instance of maladministration.

The Ombudsman notes that the complainant is not a party to the contract between the Commission and CHC/CIG, and may not therefore, in conformity with the principle of privity of contract, derive contractual rights from that contract. However, the Ombudsman emphasises that the above situation does not constitute a reason for not inquiring into whether the Commission respected the principles of good administration in relation to that contract. Further, the principle of privity of contract does not exclude the possibility that the Commission may have incurred extra-contractual liability with respect to the complainant.

2.6 Before reviewing the legal basis for the Commission's actions, the Ombudsman considers it useful first to outline what he considers to be the chronology of events. His account is based on the different communications forwarded to him in the course of this inquiry(7).

On the basis of the available information, it appears that, on 10 October 2004, the complainant sent an e-mail to the Commission services informing them of a potential conflict of interests by the Peruvian co-director of the project. On 28 October 2004, the Peruvian authorities dismissed the Peruvian co-director of the project, and appointed a new co-director on 3 November 2004. On 26 January 2005, the complainant wrote to the Head of Delegation and conveyed to him her concerns as regards comments allegedly made by some Commission officials regarding her role in the recent changes in the project's staff. The complainant, in effect, alleged that some Commission officials had questioned her motives for seeking the dismissal of the Peruvian co-director of the project and suggested that she should also be dismissed. By letter of 27 January 2006, the Head of Delegation denied the existence of any such rumours.

On 21 February 2005, the complainant wrote to the Head of Delegation requesting a work certificate which she wished to attach to her CV, taking into consideration that, at the beginning of September 2005, her contract would expire. On 11 March 2005, the Delegation issued a certificate concerning the work the complainant had carried out for the project.

On 25 August 2005, the Delegation wrote to CHC/CIG stating that, since its officials had become aware of contradictory rumours concerning the complainant's willingness to continue in her position, it was compelled to request a re-evaluation of the current situation. The Delegation also asked CHC/CIG to submit urgently the CVs of three possible candidates for the complainant's position.

On 31 August 2005, the Delegation again wrote to CHC/CIG and to the complainant explaining that, since the contract between these two parties had just expired, a one-month extension ought to be granted. On 1 September 2005, the Head of Delegation wrote to the Peruvian Minister of Health, indicating that the complainant's contract had been extended until 31 December 2005. On 15 September 2005, however, the Delegation wrote to the Peruvian authorities, informing them that the complainant was no longer working for the project.

On 1 September 2005, the complainant wrote to the Delegation expressing her surprise at its request of 31 August 2005, and underscored her commitment to continue working on the project despite the apparent criticism raised by some Delegation staff against her. The complainant conveyed the same message in an e-mail to the Head of Delegation dated 6 September 2005. The complainant attached to her letter of 6 September 2005 a certificate dated 5 September 2005, which was issued by the Delegation official responsible for financial issues and stated that there had not been any mistrust towards her on the part of the Delegation staff.

On 6 September 2005, CHC/CIG informed the complainant that, following the Delegation's request pursuant to Article 9(a) of the Agreement, her contract would not be renewed, although an extension until 30 September 2005 had been granted.

On 15 September 2005, the Delegation wrote to one of the members of the AMARES project, informing him that, as of that same date, he had been appointed the European co-director.

By letter of 16 September 2005, CHC/CIG informed the complainant that, following the Delegation's decision to appoint a new European co-director, her contract had been rescinded with effect from 15 September 2005.

On 21 September 2005, the Peruvian Minister of Health wrote to the Head of Delegation, expressing support for the work carried out by the complainant and requesting clarification as regards the apparent contradiction between the notes sent by the Delegation on 1 September and 15 September 2005, respectively. By letter dated 28 September 2005, the Head of Delegation informed the Peruvian Minister of Health that the complainant was due to continue as the European co-director until 31 December 2005.

On 3 October 2005, CHC/CIG wrote to the complainant and explained that, pursuant to the new instructions given by the Delegation on 29 September 2005, its communications of 6 and 16 September 2005 were no longer in effect. Accordingly, her contract had been extended until 31 December 2005. On 19 January 2006, CHC/CIG informed the complainant that her contract had been renewed until 30 April 2006. Furthermore, following an informal meeting, all parties agreed to extend the complainant's contract until 31 July 2006. On 7 July 2006, CHC/CIG notified the complainant that her contract would come to an end on 31 July 2006.

2.7 The Ombudsman has carefully examined both the contract for the provision of services PER/B7-310/97/209 between the Commission and CHC/CIG dated 8 August 2002 ("the contract"), and the agreement between the complainant and CHC/CIG dated 20 August 2002 ("the Agreement").

2.8 Article 9 of the Agreement reads as follows:

"In the event that the co-director would not comply with the assigned tasks, or the client would consider that the co-director's tasks had been concluded, the consulting firm will have the right to rescind the contract if the client orders the premature interruption of the co-director's tasks, or if extraordinary events take place such as political changes, uprisings, public disorders or events of force majeure. The consulting firm shall give then a two-month notice to the co-director.

(...)

The contract can be rescinded without prior notice if there is a valid reason.

The consulting firm considers the existence of a valid reason if:

(a) The behaviour abroad of the co-director is prejudicial for the interests of the country concerned or those of the Commission; or if such behaviour would originate a protest or a complaint on the part of the Commission in that country." ( Emphasis added).

2.9 On the basis of the above legal provisions, the Ombudsman finds that the Commission could only ask the contractor to terminate the employment of one of its sub-contractors in the event that the behaviour of that sub-contractor would be prejudicial to the interests of the Commission. In such circumstances, the Commission should have previously submitted a protest or a complaint.

2.10 The Commission has stated in its opinion that the reasons that led it to seek the complainant's replacement were laid down in its letter to CHC/CIG of 25 August 2005. The letter stated that:

"We have been informed that the employment contracts of [the complainant] and (...) will expire at the end of September.

(...)

As regards [the complainant], she informed us last June of her working situation, requesting a job certificate and getting to express in [sic] several occasions that she was not willing to continue her work in the project and therefore that she was looking for a different position.

Since, in the past week, we came to know contradictory rumours concerning the willingness of both experts to continue in their positions (...) we are compelled to request a re-evaluation of the current situation.

As a result, we ask you to submit urgently the CV[s] of three possible candidates for each one of these experts (...)."

2.11 If, as the Commission now acknowledges, the purpose of the letter of 25 August 2005 was to have the complainant replaced, the letter should have contained a formal protest or a complaint to the contractor, that is, CHC/CIG, based on an alleged prejudicial behaviour of the co-director, that is, the complainant, for the interests of the country concerned or those of the Commission. Having carefully reviewed the Commission's letter of 25 August 2005, the Ombudsman finds that the Commission by no means appeared to have conveyed, in that letter, a protest or a complaint to CHC/CIG based on an alleged prejudicial behaviour on the part of the complainant. On the contrary, the letter only hypothesised, by referring to "contradictory rumours", that the complainant would voluntarily leave the project(8). The institution also made a vague request to the consultant to submit a number of CVs with a view to replacing the incumbent European co-director and another consultant. This request to identify potential replacements does not, in any way, set out the reasons as to why the incumbent co-director should be replaced.

2.12 The Ombudsman notes that his conclusions on this matter are consistent with the relevant findings of fact by the Spanish labour court, which stated that:

"The Commission did not submit a protest or a complaint with respect to the behaviour of the [complainant] and, although [the Commission] informed CHC/CIG that it considered it necessary to change the co-director because it understood that [the complainant] wished to leave the AMARES project as a result of the lack of a good relationship with some of the cooperation staff of the Delegation, it has not been proved that [she] wanted in fact to leave her position. In addition, if the European Commission were unsatisfied with the work of the [complainant], it would not have requested an extension of her contract (...) The Commission's satisfaction with the work of the [complainant] is illustrated by the letter of 5.09.2005 (...) from the Delegation (...) in which it is stated that there has never been a lack of trust as regards [her] performance.

(...)

The [complainant] had informed (...) the Delegation that she had no intention of leaving the project.

It is therefore incomprehensible that [the Delegation] sent a fax on 15.09.2005 to [a third party] in which it informed him that he had been appointed as the new European co-director of the AMARES project "to replace [the complainant], who had presently informed the Delegation [of] her decision not to extend her contract (...)"."(9)

[The consultant] cannot justify the rescission [of the complainant's contract] on the grounds that the Commission requested a new co-director, since such a request would not be in accordance with the contract, unless it referred to one of the causes contemplated in Article 9, and after having submitted a protest or complaint concerning [her] behaviour"(10).

2.13 In light of the above, the Ombudsman considers that the letter of 25 August 2005 must be viewed, at least, as being manifestly inadequate for the purpose of having the complainant replaced. In sum, and in contrast with the view taken by the Commission in its opinion addressed to the Ombudsman, the letter does not meet the necessary requirements to constitute a formal protest or complaint under Article 9 of the Agreement. The letter of 25 August 2005 thus constitutes an instance of maladministration for which the Ombudsman will address a critical remark below.

2.14 In view of the above finding, and since the Ombudsman has concluded that the letter of 25 August 2005 must be viewed, at least, as being manifestly inadequate for the purpose of having the complainant replaced, the Ombudsman does not consider it necessary to inquiry into the alleged discriminatory motives of such letter, in particular, whether or not it was the result of considerations based on the complainant's gender. The Ombudsman notes however that the evidence submitted by the complainant does not appear to sustain her ancillary allegation as regards this aspect of the case.

3 Alleged failure on the part of the Commission to inform the complainant

3.1 The complainant alleges that the Commission failed to inform her, in a proper manner and with due diligence, of the decisions proposed by its services concerning her work for the AMARES project, such as the request to dismiss her, or the subsequent numerous decisions temporarily to renew her position.

She argued that she was never consulted on the different decisions to prolong her service, which she only learned about informally and without prior notice.

3.2 The Commission argues that any contractual obligations towards the complainant should have been borne by CHC/CIG , since the institution did not have a contractual relationship with the complainant. Despite the absence of a direct contractual relationship, the Commission notes that it held conversations with the complainant in order to extend her assignments and ensure her agreement.

3.3 In order to assess the complainant's allegation, the Ombudsman has reviewed the legal basis for the Commission's action in this case, namely, the contract for assistance between the Commission and CHC/CIG , and the Agreement between the complainant and CHC/CIG.

The only parties to the contract were the Commission, as the principal, and CHC/CIG, as the consultant. On the basis of Article 1 of the Agreement, the consultant was required to provide the Commission with adequate personnel in order to carry out a project for the modernisation of the health sector in Peru. The consultant was responsible for the hiring and monitoring of the sub-contractors, even though, in turn, it also had to report to the Commission on the work its sub-contractors had accomplished (Article 4(3)). A similar scheme was also applicable for the payments (Articles 7 and 9). Furthermore, the contract explicitly exempted the Commission from any responsibility resulting from the work of the sub-contractors (Article 12).

In connection with the Agreement, it appears that the only parties to it were the representative of CHC/CIG and the complainant. The Commission is only mentioned in Article 9(a), which gives the institution the power to request that the work of a sub-contractors be rescinded, albeit only in the event that his/her behaviour is detrimental to the Commission's interests and by means of a formal protest or a complaint which should be addressed to the contractor(11).

3.4 On the basis of the above provisions, the Ombudsman finds that the Commission did not appear to have a contractual relationship with the complainant, since any matter involving the latter's work was the consultant's responsibility. Similarly, any information or feedback on the implementation of the project which the Commission might need had to be channelled through the consultant. The Ombudsman considers that, on the basis of both the contract between the Commission and CHC/CIG, and the Agreement between CHC/CIG and the complainant, the Commission did not appear to have had any direct obligation towards the complainant.

In view of the nature of the legal relationship among the different parties, namely, the Commission, CHC/CIG and the complainant, the Ombudsman considers that the Commission has been able to provide a coherent and reasonable account as to why it was entitled to discuss matters pertaining to the complainant's work for the project directly with the consultant. The Ombudsman has concluded that the inquiry has not revealed an instance of maladministration as regards this aspect of the case.

3.5 The Ombudsman wishes to add however that, notwithstanding the lack of a direct legal relationship with sub-contractors, the Commission should ensure that any remarks made to its consultants concerning the quality of the work of its sub-contractors should be based on proper reasoning, so that consultants can adequately convey these reasons to sub-contractors who, in light of these arguments, can decide how best to exercise their rights.

In the absence of an adequate reasoning in support of the Commission's complaint or protest, the complainant would be deprived of his/her right of defence, as the ruling by the Spanish labour court rightly pointed out in this case(12).

In this respect, the Ombudsman draws attention to the fact that the complainant has, in the context of the present inquiry, brought to the attention of the Ombudsman numerous arguments in relation to the factual circumstances which gave rise to the present complaint. In particular, the complainant has given a coherent explanation as regards her actions in relation to the Delegation and in relation to the Peruvian authorities. Had the Commission set out its concerns regarding the complainant in an appropriate manner, through a protest or complaint to the contractor in accordance with Article 9 of the Agreement, the complainant would have been able to bring relevant counter-arguments to the attention of the contractor in good time, that is, prior to a decision to rescind her contract.

The Ombudsman will address a further remark to the Commission to this effect below.

4 Date on which the contract with the complainant should have been renewed

4.1 The complainant alleges that the Commission failed to comply with the applicable legal clauses whereby any renewal of the complainant's contract should have been until the completion of the AMARES project in 2007.

4.2 The Commission argues that this aspect of the case concerns the contractual relationship between CHC/CIG and the complainant, since the Commission did not have a contractual relationship with the complainant. The Commission also notes that Article 1 of the Agreement foresaw an initial duration of three years, renewable until the end of the project except if Articles 9, 10 or 12 were applicable. Article 9 established the possibility of terminating the contract if and when, as happened in this instance, the Commission asked for the replacement of the expert.

4.3 The Ombudsman notes that Article 1 of the Agreement states as follows:

"This agreement has been established for a limited duration. It begins on 31 August 2002, and will last for 3 years from that date. It can be extended until the completion of the project, unless the provisions of Articles 9, 10 or 12 are applicable."

The Ombudsman further notes that, as set out above(13), Article 9 allows the consultant to rescind the Agreement without prior notice, should the Commission lodge a protest or a complaint concerning the sub-contractor's behaviour.

4.4 The Ombudsman is mindful of the fact that the length of the complainant's contract has been specifically addressed by the Spanish labour court. In its ruling, the court concluded that CHC/CIG did not have the right to rescind the complainant's contract before the end of the project, since none of the exceptions for an early rescission provided for in Article 9 of the Agreement applied in this case(14).

4.5 In view of the available evidence, the Ombudsman does not consider it justified to pursue any further inquiries as regards this aspect of the case.

5 The Commission's handling of the complainant's visas

5.1 The complainant alleges that the Commission failed properly to handle her request to have her and her son’s visas extended as of 1 September 2005. A lthough, on 1 September 2005, the complainant had requested an extension of the visas for both herself and her son, the Commission failed to act on her request and asked the Peruvian authorities to cancel her visa. The complainant points out that, despite the subsequent extensions of her contract, the Commission did not facilitate the renewal of her work visa and that she had to stay in the country on a tourist visa.

5.2 The Commission argues that, in September 2005, the Delegation staff sought to ensure the complainant's orderly departure from Peru after the proposed end of her assignment. However, the complainant's refusal to accept the one-month extension which had been suggested to her precipitated events, and thus an immediate departure stamp was issued. On 14 December 2005, a meeting took place between the complainant and the Delegation in which it was agreed to extend the complainant's tasks until 30 April 2006. The Delegation immediately launched the necessary procedures for the renewal of the complainant's visa. That visa was not collected by the complainant despite the efforts of the Delegation and the Peruvian consular services.

5.3 In her observations, the complainant notes that, from 1 September 2005, the Delegation kept both her passport and that of her son. Even though the Delegation was aware of the difficulties with respect to the renewal of her contract, it requested that immediate exit orders be issued by the Peruvian authorities in September 2005. Although her contract was then extended until December 2005, and subsequently until April 2006 and then until 31 July 2006, it appears that the Commission made no real efforts to have her visa renewed and, as a result, she had to carry out her official tasks in Peru until June 2006 whilst on a tourist visa.

5.4 The Ombudsman notes that the Commission asked the Peruvian authorities to issue an immediate departure stamp on her passport in mid September 2005. This request occurred immediately after the Commission had sought to appoint a replacement for the complainant. When the Commission modified its position on 28 September 2005, and decided not to seek the complainant's dismissal, but rather to have her contract extended, it did not act with similar haste(15). It took, instead, up to three months for the Commission to launch the necessary procedures for the renewal of the complainant's visa, that is, in December 2005. The Ombudsman agrees that this delay caused a great deal of distress to the complainant.

Since the visa was finally requested and granted in mid-December 2005 and the complainant left the country following the completion of her contract, the problem no longer exists. The Ombudsman has therefore concluded that, at present, any attempt on his part to seek a friendly solution is unlikely to yield useful results for the complainant.

The Ombudsman therefore finds that, by not requesting the renewal of the complainant's visa at the same time it decided to have her contract renewed until the end of December 2005, the Commission failed to act with due diligence. This constitutes an instance of maladministration for which the Ombudsman will address a critical remark below.

6 Commission's failure to reply to the complainant's correspondence

6.1 The complainant alleges that the Commission failed to reply to a number of e-mails and letters addressed to the Delegation, regarding her professional situation in the AMARES project.

6.2 The Commission admits that it encountered difficulties in dealing with the volume of correspondence sent by the complainant.

Even though the institution highlighted the fact that, in this correspondence the complainant frequently repeated questions that had already been answered in writing or verbally in meetings, it presented its apologies to the complainant for its failure to reply to the complainant's correspondence.

6.3 The Ombudsman recalls that the Commission's Code on Good Administrative Behaviour, establishes in Section 4 ("Dealing with Enquiries") that:

"(...) A reply to a letter addressed to the Commission shall be sent within 15 working days from the date of receipt of the letter by the responsible Commission department.(...)"(16).

The Ombudsman is mindful of the fact that Part 4 ("Electronic mail") of the above-mentioned Section 4 of the Commission's Code also applies to replies to e-mails.

6.4 The Ombudsman notes that, in its opinion, the Commission has admitted that it failed to reply to the complainant's correspondence and has apologised for this failure.

In view of these circumstances, the Ombudsman considers that no further inquiries into the present allegation are necessary.

7 Alteration of the minutes of a meeting

7.1 The complainant alleges that the Commission modified the minutes of the meeting held on 10 May 2006 by deleting the sections of the document reflecting the satisfaction of the Peruvian authorities with the results she achieved.

7.2 The Commission argues that the procedure followed by its services for the approval of the minutes of the meeting of 10 May 2006 was erroneous. It explains that, following the complainant's formal request of 8 July 2006, it reconsidered the situation and, on 18 July 2006, resubmitted to all the parties the minutes originally agreed by the complainant.

The Commission explicitly regrets the unfortunate series of events which occurred in the finalisation of the minutes of the meeting.

7.3 In view of the above, the Ombudsman considers that, following his inquiry, the Commission appears to have taken adequate steps to settle the matter and has thereby satisfied the complainant.

8 Conclusion

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

(1) If, as the Commission now acknowledges, the purpose of the letter of 25 August 2005 was to have the complainant replaced, the letter should have contained a formal protest or a complaint to the contractor based on an alleged prejudicial behaviour by the co-director, that is, the complainant, for the interests of the country concerned or those of the Commission. Having carefully reviewed the Commission's letter of 25 August 2005, the Ombudsman finds that the Commission by no means appeared to have conveyed, in that letter, a protest or a complaint to CHC/CIG based on an alleged prejudicial behaviour on the part of the complainant.

In light of the above, the Ombudsman considers that the letter of 25 August 2005 must be viewed, at least, as being manifestly inadequate for the purpose of having the complainant replaced. In sum, the letter does not, in contrast with the view taken by the Commission in its opinion addressed to the Ombudsman, meet the necessary requirements to constitute a formal protest or complaint under Article 9 of the Agreement. The letter of 25 August 2005 thus constitutes an instance of maladministration.

(2) The Ombudsman notes that the Commission asked the Peruvian authorities to issue an immediate departure stamp on her passport in mid September 2005. This request occurred immediately after the Commission had sought to appoint a replacement for the complainant. When the Commission modified its position on 28 September 2006, and decided not to seek the complainant's dismissal, but rather to have her contract extended, it did not act with similar haste. It took, instead, up to three months for the Commission to launch the necessary procedures for the renewal of the complainant's visa, that is, in December 2005. The Ombudsman agrees that this delay caused a great deal of distress to the complainant.

The Ombudsman finds that, by not requesting the renewal of the complainant's visa at the same time it decided to have her contract renewed, the Commission failed to act with due diligence. This constitutes an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

FURTHER REMARK

Notwithstanding the lack of a direct legal relationship with sub-contractors, the Commission could in the future consider ensuring that any remarks made to its consultants concerning the quality of the work of its sub-contractors are based on proper reasoning, so that consultants can adequately convey these reasons to sub-contractors who, in light of these arguments, can decide how best to exercise their rights.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Ruling 21/2007 of 19.01.07 by the Employment court n° 2 of Barcelona in case 644/06.

(2) Ruling 392/2007 of 27.09.07 by the Employment court n° 2 of Barcelona in case 644/06.

(3) Ruling 21/2007 of 19.01.07, cited above.

(4) Ruling 392/2007 of 27.09.07, cited above.

(5) See the European Ombudsman's Annual Report 1997, p. 22.

(6) See Article 18 ( Duty to state the grounds of decisions) of the European Code of Good Administrative Behaviour, which states that:

"1. Every decision of the Institution which may adversely affect the rights or interests of a private person shall state the grounds on which it is based by indicating clearly the relevant facts and the legal basis of the decision.

2. The official shall avoid making decisions which are based on brief or vague grounds or which do not contain individual reasoning.

3. (…)".

(7) This description of events is concordant with the facts laid down in ruling 392/2007 of 27.09.07 by the Employment court n° 2 of Barcelona in case 644/06, cited above; see Factual findings, pp. 2-5.

(8) The Ombudsman notes that, had the Delegation any real concerns, based on "contradictory rumours", as regards the possible voluntary departure of the complainant, it should have (i) confirmed with the complainant what her position was prior to sending the letter of 25 August 2005 and, in any case, (ii) been satisfied with the reassurances given by the complainant in her correspondence to the Delegation of 1 and 6 September 2005.

(9) Point 3, Legal findings, pages 6-7; ruling 392/2007 of 27.09.07, cited above. Translation by the Ombudsman's services.

(10) Point 4, Legal findings, page 8; ruling 392/2007 of 27.09.07, cited above. Translation by the Ombudsman's services.

(11) See point 2.6 of the decision.

(12) Point 4, Legal findings, page 8; ruling 392/2007 of 27.09.07, cited above.

(13) See point 2.6 of the decision.

(14) Point 4, Legal findings, page 8; ruling 392/2007 of 27.09.07, cited above.

(15) See letter of Mr G., Head of Delegation, to the Peruvian Ministry of Health dated 28 September 2005; mentioned in point 3 of the Legal findings, page 7; ruling 392/2007 of 27.09.07, cited above.

(16) Code of good administrative behaviour for staff of the European Commission in their relations with the public, OJ 2000 L 267, p. 64.

This right is also acknowledged in Article 14(1) of the European Code of Good Administrative Behaviour, which provides that: "[e]very letter or complaint to the Institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period."