Decision of the European Ombudsman on complaint 1786/2002/JMA against the European Commission

Strasbourg, 22 July 2003

Dear Mr S.,

I would first like to inform you that Mr Jacob Söderman, with whom you have previously corresponded concerning your complaint, has retired and that, from 1 April 2003, I am his successor as European Ombudsman.

On 23 September 2002, you lodged a complaint with the European Ombudsman on behalf of the Nordic Centre for Water Products and Technology (NCW). Your complaint concerned the exclusion of NCW from a project financed by the European Commission through the Asia Urbs programme.

You sent a complaint to the Ombudsman concerning the same subject matter (ref.: 1066/2002/JMA) on 4 June 2002. Since it appeared from the available information that the complaint was not addressed against an EC institution or body, I declared it inadmissible on 20 June 2002.

In view of the new information that you submitted on 23 September 2002, I declared your complaint admissible and registered it under a new complaint number: 1786/2002/JMA. On 29 October 2002, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 24 January 2003. I forwarded it to you with an invitation to make observations, which you sent on 31 March 2003.

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

THE COMPLAINT

In September 2002, the managing director of the Nordic Centre for Water Products and Technology (NCW) complained to the European Ombudsman concerning the exclusion of NCW from a project financed by the European Commission through the Asia Urbs programme.

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

The complainant had been contacted by Mr Loew from the city of Vienna on 4 February 1999. In his letter, Mr Loew invited NCW to become a partner in the project "Sustainable socio-economic urban development of the city of Hanoi in Vietnam based on renewal of the water and waste water system of the West Lake Network Area" funded through the Asia Urbs programme. NCW was asked to take a leading role in 11 out of the 26 project activities. On 4 February 1999, NCW agreed to the proposal and began making the necessary preparations.

On 10 February 1999, Mr Loew asked NCW to conclude a formal association agreement with a Swedish governmental partner. Following this request, the complainant contacted the municipality of Dals-Ed, in Sweden, which accepted the proposal and submitted a letter of commitment to the city of Vienna. It was allegedly agreed that NCW would be responsible for the Swedish aspects of the project, whereas the municipality of Dals-Ed would undertake additional tasks.

On 16 February, Mr Loew informed the complainant that as a result of a number of changes in the design of the project, NCW would now be responsible for 7 tasks/activities with a budget of 200.000 €. On 26 February 1999, the city of Vienna formally submitted its proposal with a request for funding to the Asia Urbs programme. The complainant noted that the role and actions of NCW were included in the proposal. In May 2000, the Asia Urbs programme agreed to finance the proposal. In January 2001, the city of Vienna informed NCW that it had concluded a formal agreement with the Asia Urbs programme.

At the time the project was due to start, the municipality of Dals-Ed informed the complainant of its intention to exclude NCW from the project and to seek a replacement through a public tender. Despite NCW's objections, the municipality of Dals-Ed put forward a call for proposals to carry out the tasks originally entrusted to the complainant. Even though the complainant brought the matter to the attention of the city of Vienna, the decision taken by the municipality of Dals-Ed was not challenged. Thus, as a result of the initiatives taken by the municipality of Dals-Ed, NCW was excluded from the project.

The complainant alleges that the Commission, being responsible for the Asia Urbs programme, should have monitored the preparatory process and eliminated the administrative irregularities, unfairness and abuse of power which took place. He argues that his firm lost 40.000 € which had been invested in the project, and therefore claims that the Asia Urbs programme should reimburse this amount.

THE INQUIRY

The European Commission's opinion

In its opinion, the Commission made, in summary, the following comments:

Following a call for proposals launched in connection with the Asia Urbs programme, the Commission signed a grant contract ("Asia Urbs" No ALA/95/21-B7-3010/18) with the City of Vienna as the beneficiary. The Nordic Centre for Water Products and Technology (NCW), helped to draw up the proposal presented by the City of Vienna on 25 February 1999. At a later stage, however, the partners to the project decided to exclude NCW. As a result, the complainant considers that the costs incurred by his firm in drawing up the proposal should be reimbursed by the Commission.

The Commission noted that projects submitted in response to the call for proposals for this programme must be drawn up in accordance with the procedures set out in the Application Guidelines, whereby the only bodies able to act as partners are local governments. In accordance with this criterion, the municipality of Dals-Ed in Sweden was presented as partner of the City of Vienna. The participation of this municipality in the project was confirmed by means of a "Letter of Commitment". Third parties are not bound to the Commission by this letter, which imposes no legal obligation on the institution towards any third party to the contract.

The institution pointed out that the General and Administrative Provisions for contracts provide that the Community recognises no contractual link between itself and the beneficiary's partner(s) or between itself and a subcontractor. The Commission signalled the absence of any contractual link with, or responsibility on the part of, the Commission in its letters to NCW of 9 July and 8 October 2002. Furthermore, by letter of 9 July 2002, the Commission advised the complainant to address his complaint to a national court competent in these cases.

As set out in the programme's General Provisions, to be eligible, costs must have been incurred during the execution of the operation. The Commission was unaware of the difficulties experienced by the complainant in his relationship with the municipality of Dals-Ed. When the complainant lodged his complaint and informed the Commission, the project had already been completed and the contract had expired.

On the basis of the above, the Commission considers that it acted in accordance with all relevant rules.

The complainant's observations

In his observations, the complainant maintained his claim. He conceded however that NCW’s exclusion from the project had been the direct result of actions taken by the municipality of Dals-Ed.

THE DECISION

1 Commission's responsibility in the preparatory process of the Asia-Urbs programme

1.1 The complaint concerns the exclusion of the Nordic Centre for Water Products and Technology (NCW) from a project financed by the European Commission through the Asia Urbs programme. The complainant alleges that the Commission, being responsible for the Asia Urbs programme, should have monitored the preparatory process and eliminated the administrative irregularities, unfairness and abuse of power which took place. He claims repayment of the 40.000 € he invested in the preparatory work of the project.

1.2 The Commission argues that it had no legal obligation towards the complainant, since he was a third party to the contract signed with the city of Vienna. The institution explained that in accordance with the legal basis of the programme, the Community recognised no contractual link between itself and the beneficiary's partner(s) or between itself and a subcontractor.

The Commission pointed out that it advised the complainant to address a national court, which could be competent to deal with this type of case.

1.3 The Ombudsman notes from the documents submitted by the complainant and the Commission that, on 5 April 2001, the Commission agreed to provide finance for a project on the "Sustainable socio-economic urban and rural development of the city of Hanoi, Vietnam". The contract was concluded between the Commission and the city of Vienna, which appeared in the contract as the only beneficiary.

Article 6, paragraph 1 of the contract provides that the General Conditions applicable to European Community grant contracts for external aid should form an integral part of the contract. These General Conditions, included as Annex II of the contract, foresee in Article 1.1.4 that:

"The Community recognises no contractual link between itself and the Beneficiary's partner(s) or between itself and a subcontractor. The Beneficiary alone shall be accountable to the Commission for the implementation of the Operation. The Beneficiary undertakes to ensure that the conditions imposed upon him under this Contract also apply to partners and subcontractors involved."

1.4 On the basis of the available evidence, therefore, the Ombudsman considers that the Commission has no contractual responsibility towards NCW, since this organisation was not a party to the contract concluded between the institution and the city of Vienna as beneficiary. Furthermore, no evidence has been brought forward in the course of the Ombudsman's inquiry to show that the Commission should have been aware, or was in fact aware, of the problems experienced by the complainant, or that the Commission neglected any duty in relation to the preparation of the project in question. The Ombudsman therefore finds no maladministration on the part of 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