Decision of the European Ombudsman on complaint 1661/2000/OV against the European Commission
Case 1661/2000/OV - Opened on Wednesday | 31 January 2001 - Decision on Thursday | 23 August 2001
Dear Mr Z.,
On 15 December 2000, you made a complaint to the European Ombudsman against the Commission concerning your alleged unjustified dismissal from the post of regional expert in the PHARE Project "Bulgaria - Regional Development Support Policy".
On 31 January 2001, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 22 March 2001. I forwarded it to you with an invitation to make observations, which you sent on 23 May 2001. On 20 June 2001 you sent additional documents.
I am writing now to let you know the results of the inquiries that have been made.
The complainant is a Greek regional expert who was dismissed in August 1999 from his post in the framework of a PHARE project. According to the complainant, the relevant facts were as follows:
Ni-Co Limited (UK) and E.I.R. Development Partners (GR) which formed a consortium were awarded the PHARE-project "Bulgaria - Regional Development Support Policy, number BG 9704-0103. Balk Invest Consult Limited (B.I.C.) was sub-contracted by EIR to provide the "decentralised regional development expert". The complainant was contracted for this post for a period of 14 months.
The project started in October 1998. The project was supervised by Mr Christos Makridis, acting Head of the Commission Delegation in Bulgaria. The project progressed very satisfactorily and the complainant established excellent relations with the Minister in charge of Regional Development, the governors of the districts and the heads of various national institutions.
On 13 July 1999, the complainant was asked by the Commission Delegation to draft a plan of activities. The complainant however replied on 14 July 1999 that this was not in his job description, but the responsibility of the directors of the project.
On 28 July 1999, the complainant received a letter from the Commission supervisor Mr Makridis asking urgently for a plan of activities by 6 August 1999. The complainant replied on 3 August 1999 stating that they should contact the Team Leader and the Project Director as they were responsible. Mr Makridis replied on 18 August 1999 asking clarifications from the complainant. He added that he would obtain the plan from the Project Manager/Team leader of the project.
On 20 August 1999, the complainant was informed orally that he had been dismissed at the demand of the Delegation. No written communication was presented to him.
Subsequently, the complainant has twice been rejected for new projects. He believes that the Commission has blacklisted him from co-operation in future projects.
On 15 December 2000, the complainant wrote to the Ombudsman alleging that:
- at the demand of the Acting Head of the Commission Delegation in Sofia, Mr Makridis, he was unjustifiably dismissed from his post of regional expert in August 1999;
- the Commission Delegation failed to provide him with a written explanation for its request to have him dismissed;
- The Commission has banned him from co-operation in future projects.
THE INQUIRYThe Commission's opinion
In its opinion, the Commission observed that the tender evaluation committee selected the offer presented by NI-CO (Northern Ireland Public Sector Enterprises Limited). In this offer, the complainant was proposed as an expert on decentralised regional development initiatives. His responsibility was the provision of ongoing on-the-spot advice and assistance for the development of national regional policy in Bulgaria, and the promotion of decentralised regional development.
The contract was initially a centralised one (the Commission signed it on behalf of the candidate country). However, with deconcentration, the management of the project was transferred to the European Commission Delegation in Sofia. The implementation of the project started in 1998.
As regards the complainant's first allegation, the Commission observed that the significantly modified legislative environment concerning regional development at the time when the complainant started to work led the Delegation to adapt the project to actual needs. In this context, NI-CO was requested to inform the Delegation on day-to-day progress of the project. The Delegation reached an agreement with the complainant that he should submit one-page weekly reports assessing the activities undertaken during the contracting period and that he should indicate a working plan for each subsequent week. The agreement with the complainant was even more important since he was responsible for dealing with regional actors in two selected macro regions (whereas another person was responsible for dealing with the central ministries in Sofia) and since the Delegation had the obligation to ensure that the complainant's activities in the regions really contributed to the objectives of the project. Therefore, under this project, the decentralised regional development initiatives expert was a key interlocutor in the field, and it was imperative that he establish close relations with the Delegation.
Despite this agreement, the Delegation could not, during project implementation, obtain from the complainant a clear overview of the planning of the implementation of the project. For a period of time, the Delegation had very little information about the planned activities of the complainant. Despite repeated requests by the Delegation (through phone calls, but also in written form), the complainant failed to provide the information asked for, thus compromising the success and the quality of the implementation of the project. Dissatisfaction concerning his performances and his work method was communicated (also in written form) to the complainant over an extended period of time, without any results. Aware of the dissatisfaction of the Delegation, the management of NI-CO (Mr John McGrillen) informed the Delegation that they had the same view concerning the performance of the complainant, pointing out that there was a communication problem with him and that they were considering the possibility of dismissing him (there were indications that the Bulgarian authorities were also dissatisfied with his performance). A possible dismissal of the complainant was to be decided by the management of NI-CO itself. Finally, NI-CO suggested the replacement of the complainant, to which the Delegation agreed.
As regards the complainant's second allegation, the Commission observed that it was not the Commission that had dismissed (or ordered the dismissal of) the complainant. There is no contractual relationship between the Commission and the complainant. The Commission Delegation merely expressed its disappointment about the complainant's performance to the main contractor (NI-CO), which dismissed the complainant. The Delegation had however made clear its concerns that value for money needed to be ensured through a clear definition of the planned activities of the complainant.
As regards the complainant's last allegation, the Commission observed that it is not aware of any "ban" against the complainant being employed in future projects. As far as the selection of consultants under the Phare programme is concerned, the Commission is committed to ensure that the procurement process is made in a transparent, fair and competitive manner in order to ensure equal opportunity and value for money.The complainant's observations
The complainant maintained his complaint. He observed that, had the request for information been genuine, then the Acting Head of the Delegation should have addressed it directly to the Project Director.
As regards the first allegation, the complainant observed that, contrary to the Commission's claim, the Delegation did not reach any agreement with him that he should submit one-page weekly reports and indicate a working plan for each subsequent week. The Commission Delegation had only an agreement dated 4 November 1998 with Mr Johnston of NI-CO for the provision of information on day-to-day basis. The complainant observed that the terms of reference did not provide for any direct reporting by the regional expert to the Commission Delegation, but only provided for support by the regional expert to the Team Leader who was responsible for reporting. The assistant head of Delegation was aware that the complainant was neither responsible nor empowered to provide information directly to the Delegation.
The complainant observed that, prior to 28 July 1999, he was not aware of any documents addressed to him over an extended period of time (as claimed by the Commission) relating to the dissatisfaction about his performance and work method. On the contrary, up to 27 July 1999 the complainant was lead to believe that his performance and work method were considered to be good and of assistance to the Delegation. The complainant also rejected the Commission's claim that the management of NI-CO had the same view as the Commission as regards his performance. The complainant referred to various documents which did not contain any sign of dissatisfaction with regard to his performance.
In conclusion the complainant stated that the Commission has not adequately explained its position and refused to explain the actions of 28 July 1999 and 18 August 1999.
THE DECISION1 The alleged unjustified dismissal of the complainant
1.1 The complainant was employed by a sub-contractor in the framework of a Phare project. He alleged that, at the demand of the Acting Head of the Commission Delegation in Bulgaria, he was unjustifiably dismissed from his post of regional expert in August 1999.
1.2 According to the Commission, its Delegation in Bulgaria could not obtain from the complainant a clear overview of the planning of the implementation of the project. The complainant failed to provide the information requested, thus compromising the success and quality of the project. However, the dismissal of the complainant was decided by the contractor NI-CO and the Commission Delegation agreed with it.
1.3 The Ombudsman notes from the documents in the file that it was NI-CO that finally requested the dismissal of the complainant in a letter of 27 August 1999 addressed to its partner E.I.R. which employed the complainant. However, it is obvious that the Commission's dissatisfaction with the complainant's work played an important role in the contractor's decision.
1.4 In its opinion, the Commission explained the reasons why it was not satisfied with the complainant's work. The Ombudsman's inquiry has revealed no evidence to show that the Commission was not entitled to reach the conclusion that it did concerning the complainant's work. Nor is the Ombudsman aware of any rule or principle which could prevent the Commission from communicating to the contractor its dissatisfaction with the complainant's work. No instance of maladministration was therefore found with regard to this aspect of the case.2 The alleged failure to provide a written explanation for the dismissal
2.1 The complainant alleged that the Commission Delegation failed to provide him with a written explanation for its request to have him dismissed. The Commission observed that it was not the Commission that had dismissed or ordered the dismissal of the complainant and that there is no contractual relationship between the Commission and the complainant. The Commission Delegation merely expressed its disappointment about the complainant's performance to the main contractor (NI-CO).
2.2 The evidence available to the Ombudsman is that the Acting Head of the Commission Delegation in Bulgaria wrote to the complainant on 28 July 1999 and 18 August 1999, informing him of the Commission's dissatisfaction with his work and of the reasons for that dissatisfaction, thereby also giving the complainant the opportunity to present his point of view. No instance of maladministration was therefore found with regard to this aspect of the case.3 The alleged ban from future projects
3.1 The complainant alleged that the Commission has banned him from co-operation in future projects. The Commission observed that it is not aware of any ban against the complainant being employed in future projects.
3.2 The Ombudsman notes that the complainant did not provide any supporting evidence for his allegation that the Commission has banned him from co-operation in future projects. No instance of maladministration was therefore found with regard to this aspect of the case.4 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.