Decision of the European Ombudsman on complaint 2069/2002/GG against the European Commission

Strasbourg, 10 July 2003

Dear Mr L.,

On 26 November 2002, you made, on behalf of Kreissparkasse Esslingen-Nürtingen, a complaint to the European Ombudsman concerning the European Commission’s alleged failure to pay amounts of money that were due to Prisma GmbH under a Phare contract and that Prisma GmbH had ceded to the complainant.

On 9 December 2002, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 18 February 2003. I forwarded it to you on 19 February 2003 with an invitation to make observations, which you sent on 26 February 2003.

On 6 March 2003, I wrote to the Commission to ask for further information in relation to the present complaint. The Commission sent its reply on 16 April 2003. I forwarded it to you on 22 April 2003 with an invitation to make observations by 31 May 2003. No observations have been received from you.

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

THE COMPLAINT

The complainant is a German savings bank. On 22 September 2000, one of its customers, Prisma GmbH (a German company), ceded two claims for payment it alleged to have against the European Commission for 350 000 DM (invoice of 9 February 2000) and 60 000 DM (invoice of 21 July 2000) respectively to the complainant. According to Prisma GmbH, these claims were based on a Phare contract with the reference "Phare 4683-17-RC-VI".

On 21 May 2002, the complainant wrote to the Commission to inform it about the transfer of the claims and to ask for the amounts to be paid to it. By fax of 16 July 2002, the Commission informed the complainant that its letter had been forwarded to its Directorate-General (DG) Enlargement. On 30 September 2002, DG Enlargement informed the complainant that it did not recognise the reference mentioned by the complainant. The Commission therefore asked the complainant to provide complementary information (for example, a copy of the contract). In its reply of 29 October 2002, the complainant stressed that it had already provided the reference of the contract and asked the Commission to deal with the matter.

By fax of 31 October 2002, the Commission again asked for further information in order to allow it to identify the contract.

On 26 November 2002, the complainant turned to the Ombudsman for help. According to the complainant, the Commission had failed to pay amounts of money that were due to Prisma GmbH under a Phare contract and that Prisma GmbH had ceded to the complainant.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The Commission first became aware of the issue surrounding the relevant contract when the complainant had sent a letter requesting payment of the two invoices dated 9 February 2000 and 27 July 2000. On 1 August 2002, the complainant had been asked for complementary information since the only reference that had been provided was a reference number ("Phare 4683-17-RC-VI").

Phare contracts were not numbered in this way. The reference given was not one that was identifiable. A copy of the contract would allow the identification of the relevant service of the Commission that actually had the relationship with the complainant or with Prisma GmbH. Without the correct contract number, it was impossible to proceed to a payment. The reference required would be in the format 01-0025, the first two digits denoting the year.

Internal databases had been searched but had not revealed any contracts relating to either the complainant or Prisma GmbH.

A further letter asking for information had been sent to the complainant on 22 January 2003. Unfortunately, however, the necessary information had not been provided by the complainant.

The complainant's observations

In its observations, the complainant pointed out that it had contacted the lawyer of Prisma GmbH in order to obtain further information. The complainant submitted copies of a fax sent to Prisma GmbH on 21 August 2000 by the Industrie- und Handelskammer (Chamber of Industry and Commerce) Bayreuth and of a letter dated 2 October 2001 sent by a German lawyer to Prisma GmbH. According to these documents, the matter had been discussed with a Dr. Truijens of DG Agriculture (formerly DG VI) and a Mr Gösta Persson of the Commission’s services in 2000/2001. The complainant expressed the view that it should be possible to clarify the matter on the basis of this information.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

Request for further information

The Ombudsman therefore asked the Commission whether it was able to identify the relevant contract on the basis of the additional information contained in the complainant’s observations.

The Commission’s reply

In its reply, the Commission pointed out Dr. Truijens and Mr Gösta Persson were no longer employed by the Commission. It took the view that if any written correspondence with the persons concerned was available, it would be on the relevant files of the Commission (which was not the case) or in the possession of the complainant.

The Commission stressed again that the contract reference provided by the complainant was not recognisable, and that a copy of the contract would enable the Commission to clarify the matter. It added that it had asked the complainant to provide the documentation which it needed in order to verify whether any amounts were due from the Commission. According to the Commission, in the absence of the information that had been requested by the Commission’s services, a continuation of the correspondence with the complainant did not appear to be useful.

The complainant’s observations

A copy of this reply was forwarded to the complainant. No observations were received from the complainant.

THE DECISION

1 Failure to pay sums allegedly due under Phare contract

The complainant, a German bank, alleged that the Commission had failed to pay two amounts of money that were due to a German company, Prisma GmbH, under a Phare contract and that Prisma GmbH had ceded to the complainant.

The Commission replied that neither the contract reference that the complainant had provided ("Phare 4683-17-RC-VI") nor the further information submitted by the latter during the course of the Ombudsman’s inquiry had allowed it to identify the contract. According to the Commission, a copy of the relevant contract was thus required, and the Commission had asked the complainant to provide this document on several occasions.

The Ombudsman notes that the Commission appears to have endeavoured to identify the contract on the basis of the limited indications provided by the complainant without however being able to do so. In these circumstances, the Commission’s view that the complainant should submit a copy of the relevant contract in order to allow it to verify whether any amounts were due by the Commission appears to be reasonable.

On the basis of the above, the Ombudsman concludes that there is 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 European Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS