Decision of the European Ombudsman on complaint 1356/2002/OV against the European Commission

Strasbourg, 19 May 2003

Dear Madam,

On 17 July 2002, you made a complaint to the European Ombudsman concerning the non-payment by the Commission of a sum of 3.500 € for two tasks you carried out in the framework of a contract for the supply of expert services.

On 30 August 2002, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 29 November 2002 and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.

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

THE COMPLAINT

According to the complainant, the relevant facts were as follows:

The complainant, a professor at the University of Brussels, concluded a contract for the supply of expert services with the Commission. This contract was subdivided in two sections, namely a) a forum of experts and representatives of the civil society and of the Euro-Mediterranean governments, and b) a regional forum on the theme "Economy and sustainable development : participation of women".

The first section of the contract (reference VC/2001/0203) had as its objective the preparation of a report and participation in a preparatory meeting on 16 June 2001 in Brussels. The second section of the contract (reference VC/2001/0204) concerned the preparation of a report on Council Regulation 2636/98 and its impact on the project of a Euro-Mediterranean Space in the field of integration of questions concerning the equality of sexes. After the execution of both tasks, the complainant received from the Director General for Employment and Social Affairs a notification of an "order for supplies and works" dated 26 July 2001. This document specified that the invoices of 2.500 € and 1.000 € would be paid within 3 months, i.e. the latest on 26 October 2001.

After one year, and notwithstanding several reminders made by telephone and by letter, the complainant had still not received the payments, nor any acknowledgement, explanation or excuse.

On 17 July 2002, the complainant lodged the present complaint with the Ombudsman. The complainant claims the payment of a) the principal sum of 3.500 € (2.500 + 1.000 €), b) interest since 26 October 2001 and c) damages ex aequo et bono for one day of work, namely 500 € (telephone calls, drafting of correspondence, consultation of bank accounts, photocopies and sending the present complaint).

THE INQUIRY

The Commission's opinion

In its opinion, the Commission observed that, in July 2001, the complainant concluded two orders for supply of expert services with the Commission's DG Employment and Social Affairs (VC/2001/0203-SI2.321636 and VC/2001/0204-SI2.321785) in order to prepare two reports concerning the works of the Regional Euro-Mediterranean Forum on the theme "Economy and sustainable development : participation of women".

According to articles 23 and 24 of the General terms and conditions applicable to supply contracts, "a separate invoice for each consignment or part-consignment shall be addressed to the Commission (…)". This implied the presentation by the complainant of two separate invoices, or one invoice showing that the payment to be made concerned two different sums, namely € 2.500 and € 1.000.

On 5 July 2001, the complainant addressed to the Commission a single "claim declaration" which did not correspond to the presentation above. The responsible service informed the complainant by telephone on several occasions that she had to submit two distinct invoices or one appropriately presented invoice.

The document sent by the complainant on 7 March 2002 is not valid because she again asked the payment of the total sum of € 3.500 without distinguishing the sums corresponding to each of the two orders for supply of services. The responsible service again contacted the complainant by telephone and sent on 29 March 2002 a reminder of the unsigned "claim declaration". The document was sent by the complainant without a date and was registered by the responsible service on 16 April 2002.

The payments were made on 19 July 2002 for VC/2001/0204 (amount of € 1.000) and 23 July 2002 for VC/2001/0203 (amount of € 2.500).

The Commission observed that the complainant was entitled to interest only from 16 June 2002 onwards, given that the payment conditions foresee a period of 60 days from the date of reception of the invoice. These interests are € 5,73 for the order VC/2001/0204 and € 16,01 for the order VC/2001/0203 which makes a total of € 21,74.

The Commission finally stated that the complainant was not entitled to claim damages as she never provided invoices as foreseen in articles 23 and 24 of the general terms and conditions applicable to supply contracts, but only "claim declarations" which were not in conformity with the Commission's rules.

The complainant's observations

The complainant did not submit observations

THE DECISION

1 The claim for payment of the principal sum, interest and damages

1.1 The complainant, a professor at the University of Brussels, concluded a contract for the supply of expert services with the Commission. The complainant claims the payment of a) the principal sum of 3.500 € (2.500 + 1.000 €), b) interest since 26 October 2001 and c) damages ex aequo et bono for one day of work, namely 500 € (telephone calls, drafting of correspondence, consultation of bank accounts, photocopies and sending the present complaint).

1.2 As regards the claim for payment of the principal sum, the Commission indicates in its opinion that the sums of 1.000 € and 2.500 € were paid on 19 and 23 July 2002 respectively. It therefore appears that the Commission has met this claim.

1.3 As regards the claim for interest, the Commission argues that the complainant sent one single "claim declaration", which did not correspond to the presentation required by articles 23 and 24 of the General terms and conditions applicable to supply contracts. According to the Commission, the responsible service informed the complainant by telephone on several occasions that she had to submit two distinct invoices, or one appropriately presented invoice. The Commission finally paid the principal sum and observed that the complainant was entitled to interest only from 16 June 2002 onwards, given that the payment conditions foresee a period of 60 days from the date of reception of the invoice.

1.4 The Ombudsman notes that article 23 of the General terms and conditions applicable to supply contracts provides that "a separate invoice for each consignment or part-consignment shall be addressed to the Commission in five copies; it shall be drawn up in euros and quote the reference and date of the contract". Article 24 of the General terms and conditions provides that "save as otherwise provided, payments shall be made against invoices in euros within sixty days of receipt".

1.5 It appears from the file that the complainant first sent to the Commission one single claim declaration and not two distinct invoices for each consignment as required by Article 23 of the General terms and conditions of the contract. On 16 April 2002, however, the complainant submitted a document which the Commission accepted. Although payment should therefore have been made within 60 days , i.e. by 16 June 2002, the Commission did not in fact make payment until 19 July 2002 and 23 July 2002 for the first and second sections of the contract respectively. The Commission has accepted to pay interest from 16 June 2002 to these dates. The Ombudsman considers that the Commission can reasonably take the view that interest is only payable from 16 June 2002 and that the Commission has therefore responded adequately to the complainant’s second claim.

1.6 As regards the claim for damages, the Commission argued that the complainant is not entitled to damages as she never provided invoices as foreseen in articles 23 and 24 of the General terms and conditions applicable to supply contracts, but only "claim declarations" which were not in conformity with the applicable rules. The Ombudsman considers that this argument, which was not contradicted by the complainant, appears to constitute a reasonable justification for the Commission’s refusal to pay damages.

1.7 On basis of the above considerations, the Ombudsman found no instance of maladministration by the Commission.

2 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,

 

P. Nikiforos DIAMANDOUROS