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Decision of the European Ombudsman on complaint 505/2000/(OV)SM against the European Commission


Strasbourg, 30 August 2001

Dear Mr M.,

On 21 September 1998, you made a complaint before the European Ombudsman regarding the international architectural competition for the refurbishing of the public area in the European quarter of Brussels.

By letter of 27 October 1998, the Ombudsman informed you that the complaint was inadmissible because prior administrative approaches should be made and that the relevant Commission services had informed him that they were in the process of examining your file. On 24 November 1998 the Commission sent a letter to you to that effect informing you of its position.

On 12 April 2000, you renewed your complaint to the European Ombudsman concerning the call for tenders in question.

On 18 May 2000, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 8 September 2000. I forwarded it to you with an invitation to make observations, which you sent on 20 October 2000. I am writing now to let you know the results of the inquiries that have been made.


THE COMPLAINT

The complainant is an architect who participated in the International Architectural Competition for refurbishing the public area in the European quarter of Brussels. The complainant's bid was placed third in the call for tenders organised jointly by the Brussels City Region ('Région de Bruxelles-capitale') and Directorate General IX. Directive 92/50/EEC as amended by Directive 97/52/CE(1) was applicable to the procedure in question.

On 8 July 1998, the complainant submitted a complaint to the Commission concerning alleged irregularities in relation to the call for tenders under Directive 92/52/EEC. The complainant's complaint was registered with the Commission's Secretariat-General on 7 December 1998 (reference number SG(98)D/37729).

On 12 April 2000, the complainant made a complaint to the European Ombudsman concerning the same call for tenders.

In his complaint to the Ombudsman, the complainant alleges that:

(1) he has received no information from the Commission concerning the outcome of his complaint;

(2) the Commission has failed to reply to his letters of 25 January 2000, 3 February 2000, 17 March 2000 and 27 March 2000;

(3) the European Commission and the Region of Brussels have failed to respect Directive 92/50/EEC as amended and the rules for the call for tenders as regards: impartiality and independence of the selection board members; and the obligation to communicate a written reply regarding the decision of award of contract to the complainant within the stipulated delay of 15 days.

With respect to this alleged failure of the European Commission and Belgium to comply with the Directive in question, the complainant claimed compensation for damages.

THE INQUIRY

The EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman, in the present case, Belgium.

The Ombudsman's inquiries into the complaint were therefore directed towards examining whether there was maladministration in the activities of the European Commission. By letter of 18 May 2000, the Ombudsman informed the complainant that he could not investigate in so far as it concerned the Brussels City Region as it was outside his mandate because it is not a Community institution or body under Article 2.1 of the Statute. Moreover, the allegations of partiality and the incorrect application of Directive 92/50/EEC as amended cannot be investigated in respect of this inquiry. Furthermore he informed the complainant that in accordance with Article 2.7 of the Statute, the Ombudsman cannot open an inquiry where facts alleged in the complaint are subject of legal proceedings before Belgian courts.

The Ombudsman therefore decided to open an inquiry regarding the first two allegations:

(1) he has received no information from the Commission as regards the outcome of his complaint submitted on 8 July 1998 as at 12 April 2000;

(2) the Commission has not replied to his letters of 25 January 2000, 3 February 2000, 17 March 2000 and 27 March 2000.

The Commission's opinion

On 4 November 1999, the Commission initiated formal Article 226 infringement proceedings against Belgium by addressing a letter of letter of formal notice to the Belgian foreign affairs' Minister. Following a written MEP question (P-1486/99), the Commission moreover sent a request for complementary information to the Belgian government on 4 February 2000. The Belgian government replied on 15 March 2000. Since then, the Commission is in the process of examining this reply. The Commission sent a letter to the complainant on 13 April 2000 informing him of the on-going procedure and its developments.

In summary, the Commission's opinion was as follows. The Commission carefully examined the allegations put forward by the complainant.

As regards the failure to inform him of the outcome of his complaint of 8 July 1998, the Commission explained that a substantiated reply was provided to the complainant in the letter of 24 November 1998. The Commission apologised for the delay in replying, stating in this letter that it was the Brussels City Region, which was responsible for organising the call for tenders and that the Commission's role therefore was limited to financing the call and to participating in the selection jury. The Commission moreover explained that it had examined the lack of respect of the delay of 15 days by the Brussels City Region (it took 20 days) to inform the complainant of his results in written and that it would ask the Brussels City Region to pay due attention to the delay as stipulated under Directive 92/50/CEE. The Commission also informed the complainant that on the basis of his allegations it would conduct a detailed inquiry so as to examine whether Belgium had correctly applied Directive 92/50/CEE and that he would be kept informed of the subsequent developments. The Commission furthermore sent a letter to the complainant's lawyer on 3 December 1998 and another letter to the complainant on 7 December 1998 informing him that his complaint had been formally registered with the Commission's Secretariat-General.

Regarding the alleged failure to reply to the complainant's letters of 25 January 2000, 3 February 2000, 17 March 2000 and 27 March 2000, the Commission explained that it contacted the complainant's lawyer by phone on 4 April 2000. The Commission moreover sent a substantive reply to the complainant on 13 April 2000 informing the latter that it had addressed a letter of formal notice to Belgium on to ask it to clarify the legal position as to whether Belgium had failed to fulfil its obligations by infringing Directive 92/50/ECC as amended. The Commission also informed the complainant in this letter that it had sent a complementary request for information to Belgium on 4 February 2000 following the questions asked by a MEP and that the file was currently being examined by the Commission services. The Commission furthermore had a meeting with the complainant on 5 May 2000 where its services invited him to discuss the alleged irregularities and to provide the information deemed necessary.

The Commission therefore considered that it had provided the complainant with all the information necessary as regards the on-going inquiries relating to his complaint and that it had replied to his letters.

The complainant's observations

In his observations, the complainant requested access to the contents of the letters of formal notice of 4 November 1999 and 4 February 2000 addressed to the Belgian government. Since this aspect is not part of the original complaint and as the institution has not had the opportunity to comment on it, the Ombudsman does not deem it appropriate to consider this aspect in respect of this inquiry.

The complainant furthermore requested a meeting between himself, the Commission and the Ombudsman. The Ombudsman does however not consider the request for a meeting as appropriate at this stage of the inquiry.

THE DECISION

1 Failure to inform of the outcome of the complaint SG(98)D/37729

1.1 The complainant alleges that the Commission has failed to inform him of the outcome of his registered complaint as at 12 April 2000.

1.2 In its opinion, the Commission informed the Ombudsman that it had provided all the necessary information in respect of the complainant's file in a letter to the complainant of 24 November 1998. The Commission had moreover informed the complainant's lawyer of these facts on 3 December 1998 and informed the complainant that his complaint had been registered on 7 December 1998. The Commission apologised to the complainant in the letter of 24 November 1998 for the delay in replying and provided a substantive reply of the inquiries undertaken in relation to his complaint.

1.3 The Ombudsman recalls that the Commission has repeatedly recognised that complaints from individuals remain the most important source on which the Commission bases its task of monitoring Member States' obligations under the Treaty and that such complaints should normally be dealt with within one year from registration(2). In the present case, the Ombudsman notes that the Commission initiated proceedings within this delay on 4 November 1999 and informed the complainant thereof.

1.4 There appears therefore to be no maladministration in relation to this aspect of the case.

2. Failure to reply to letters

2.1 The complainant alleged that the Commission had failed to reply to his letter of 25 January 2000, 3 February 2000, 17 March 2000 and 27 March 2000.

2.2 The Commission explained that a phone conversation between the complainant's lawyer and the service concerned took place on 4 April 2000 and that it had provided a substantive reply to the complainant on 13 April 2000 in which it outlined the developments of its inquiries in relation to his complaint. Its services had furthermore organised a meeting with the complainant to discuss the alleged irregularities on 5 May 2000.

2.3 The Ombudsman notes that there is a general obligation to answer letters. In this case however, the Commission appears to have explained to the complainant all necessary measures which it has undertaken for the follow-up of the infringement proceedings against Belgium in question both by letter and by phone to the complainant, his lawyer and by meeting the complainant himself.

2.4 In view of the above findings of fact, there appears to be no maladministration in relation to this aspect of the case.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN


(1) Council Directive 92/52/EEC of 18 June 1992 relating to the co-ordination of procedures for the award of public service contracts, OJ L209/1 of 24.07.1992 as amended by European Parliament and Council Directve 97/52/EC of 13 October 1997, concerning the co-ordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively, OJ L328/1 of 28.11.1997.

(2) See the Ombudsman's Annual Report for 1997, p. 270, Own initiative inquiry Decision 303/97/PD.