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Decision of the European Ombudsman on complaint 1348/2003/JMA against the European Commission


Strasbourg, 2 June 2004

Dear Mr N.,

On 21 July 2003, you lodged a complaint with the European Ombudsman against the European Commission. Your complaint concerned the problems that you were facing in relation to the payment for work you had carried out in a Technical Assistance Project in Burundi (Financial Audit of Ten Coffee Companies) with the financial assistance of the Commission.

On 29 September 2003, I forwarded the complaint to the President of the Commission. On 2 December 2003, I received the Commission's opinion, which I forwarded to you with an invitation to submit observations. No observations appear to have been received from you. In reply to a telephone request made by my services on 14 May 2004, you indicated that the payment due to you had been made.

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


THE COMPLAINT

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

The complainant worked as Senior Auditor of a team in a technical assistance project in Burundi. The team included a number of specialists from different coffee companies. The complainant, jointly with five other members of the team had been hired by the firm AGEG, which had subcontracted work to Euronet Consulting.

Their mission started in March 2002 and was completed in June 2003. Despite the harsh conditions imposed on the complainant, his work was completed in accordance with the needs of the local partners. However, despite the fact that the project's report was accepted without reservations or amendments, he had not received any payment for his work.

The complainant expressed his dissatisfaction with the situation. He noted that despite the enormous effort demanded, no one ensured that the consultants received their dues. In the complainant's view, the situation resulted from a lack of communication between the EU Delegation, its desk officer in Burundi, the contractor and sub-contractors.

In spite of the numerous communications sent by the complainant, no one seemed to assume responsibility, and instead he was informed that the final payment should be approved shortly. Once the approval was given, the complainant was told that the final decision rested with the Ministry of Finance in Burundi.

In summary, the complainant alleges that the Commission failed to ensure that the Ministry of Finance of Burundi complete the payment of the project, despite the institution's stated satisfaction with his team's output. The complainant claims full payment of the outstanding amount due as soon as possible.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first described the factual background of the case. It explained that the Stabex 1992-99 Framework of Mutual Obligation (FMO) for Burundi allocated funds for several studies in the sector of tea, coffee, cotton and staple food crops.

The firm Euronet Consulting submitted an offer for the project on 12 November 2001, which was selected by the evaluation panel. The contract letter (ref. 2001/3733) was signed between the Commission and the Consortium Euronet Consulting on 23 January 2002. The team proposed by Euronet Consulting consisted of six sub-contracted experts. The complainant had been sub-contracted by Euronet Consulting as auditor.

On the same day that the contract was signed, Euronet Consulting sent the first invoice (L1/064/25) for an 80% advance. The payment of the first advance of EUR 155 884 took place on 2 February 2002. The first draft report on the project was received by the beneficiary, the National Authorising Officer (NAO) in Burundi, in November 2002. Following the assessment of the report by the project's Steering Committee, the consultant was asked and agreed to analyse the financial documents of several companies that were missing.

The final report prepared by Euronet Consulting was received by the NAO on 24 April 2003. Its final invoice (L1/064/052) was sent on 12 May 2003. On 5 June 2003, the approval of the report with instructions to issue the final invoice were confirmed to the consultant. The transfer order was issued on 16 July 2003, and the final payment amounting to EUR 36 567 was executed by the bank on 27 August 2003.

As regards the complainant's allegation, the Commission stressed that there was no legal relationship between the complainant and the institution. The contract letter referred to by the complainant was signed between the Commission and Euronet Consulting. The complainant's participation in the study was governed by a contract signed between himself and Euronet Consulting. The Commission therefore concluded that any request for payment by the complainant should have been addressed to his contracting partner, and not to the Commission. The institution noted that the General Conditions applicable to the Framework contract AMS/451 foresee that the contracting authority shall in no case be held responsible for damages caused to the Consultant or its employees arising out of the contract, and that no claims for indemnity or re-instatement relating to such damages may be addressed to the Commission.

Concerning payments, the Commission noted that its first payment had been made well within the 60-day period allowed under the terms of the contract, but that this deadline had not been respected for the final payment. The institution explained that on 12 May 2003 the consultant sent the final invoice number L1/064/052. Following final approval of the report on 5 June 2003, the transfer order was issued on 16 June 2003, and the final payment executed by the bank on 27 August 2003. Accordingly, the Commission acknowledged that Euronet Consulting has grounds to request interest for late payment for a total amount of EUR 78.46. So far, no such request had been received from Euronet Consulting.

The Commission concluded by stating that, in view of the facts of the case, it believed its services had acted properly and with due respect for the principles of good administration.

The complainant's observations

The Ombudsman did not receive any observations from the complainant. However, in reply to a telephone request made by the Ombudsman's Secretariat on 14 May 2004, the complainant indicated that he had received payment of the amount due to him, and that the problem had therefore been settled.

THE DECISION

On the basis of the information gathered in the course of his inquiry, the Ombudsman concludes that the case has been settled by the European Commission to the complainant’s satisfaction.

Against this background, the European Ombudsman decides to close the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS