Decision of the European Ombudsman on complaint 2201/2003/(BB)PB against the European Commission

Strasbourg, 15 September 2004

Dear Mr X.,

On 17 November 2003, you made a complaint to the European Ombudsman concerning alleged wrongful dismissal from the TACIS project "Support to National Co-ordination Units (NCUs)".

On 25 November 2003, my legal officer then responsible sent you an email, asking you to send three missing attachments referred to in your complaint. You replied on that same date.

On 4 December 2003, you asked me to communicate with you by email, providing the email address referred to above.

On 9 December 2003, you asked my legal officer then responsible when you would be informed about the admissibility of your complaint.

On 9 December 2003, I forwarded the complaint to the President of the European Commission, and informed you accordingly on that same date. You acknowledged receipt of my communication on that date.

The Commission sent its opinion on 23 February 2004.

On 25 February 2004, I informed you that the legal officer henceforth responsible for dealing with your case would be Mr Peter Bonnor. You replied to this communication on 2 March 2004.

On 17 March 2004, I forwarded the Commission's opinion to you with an invitation to make observations, which you sent on 30 April 2004.

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

THE COMPLAINT

The complainant was an EU citizen who worked as an independent consultant. On 1 August 2001, he became employed under a contract with a private consultancy firm as an EU adviser in a project in the country concerned. This project provided technical assistance (TA) and consultancy support to the NCUs in each of the Tacis partner states. The role of an NCU is to act on behalf of the partner state government in identifying and selecting projects for support from the Tacis programme (Technical Assistance to Commonwealth of Independent States).

The project was awarded to a consortium of EU consultancy firms. The contract was for one year, renewable at the discretion of the Commission up to a total possible lifetime of five years. The Terms of Reference required there to be two EU experts and four local experts. The complainant was one of the two EU experts.

In 2003, the Commission required that every country participating in the relevant TACIS programme should approve the continuation of the project by signing an Award Letter. Any country that failed to sign this letter would have the project closed down in that country. By September 2003, the country concerned had failed to sign the Award Letter. According to the complainant, the NCU Director had refused to sign the Award Letter because she insisted that the contracts of the two EU experts (one of them the complainant) should not be renewed. The complainant informed the Commission about this demand, and got the impression that the Commission considered the demand unreasonable. On 17 September 2003 a meeting took place between the NCU Director and the Task Manager in EuropeAid of the Commission. According to the complainant, it was agreed the following day, during a meeting between the Commission and the NCU Director, that he and his EU expert colleague would cease to be employed on the project as from 31 October 2003.

On 28 October 2003, the complainant contacted the Task Manager at the Commission requesting information about the non-renewal of his contract, and asked whether he could obtain a copy of a letter sent by the NCU Director containing the reasons for the non-renewal. According to the complainant, he received a phone call from the Task Manager who said that the Commission would not discuss the contents of such a letter. On this basis, the complainant considered that the Commission had wrongly accepted the NCU's withholding of her approval of his contract renewal, and that the following provision in the "Rules and Procedures for Service, Supply and Works Contracts Financed from the General Budget of the European Communities in the Context of Co-operation with Third Countries" (2002 edition) had been breached: "The beneficiary may not withhold its approval unless it submits duly substantiated and justified objections to the proposed experts in writing to the Commission Delegation within 30 days of the date of the request for approval".

The complainant furthermore remarked that there had been no contact with the central National Co-ordinator, but only with the NCU Director, and that the latter had not been entitled to make the demand that she made. He stated that the Commission should therefore not have acceded to the demand without having consulted with the National Co-ordinator. He referred to the following provision in the Terms of Reference: "[EU] Advisers will be selected in consultation with the National Co-ordinator, to whom they will report on operational matters" (Article 17).

The complainant furthermore considered that several provisions of the European Code of Good Administrative Behaviour had been breached: Article 8.2 (duty not to be guided by political pressure), Article 10.1 (duty to follow normal administrative practices, and to record legitimate grounds when not), Article 11 (impartiality, fairness and reasonableness), Article 12.1 (duty to reply); 12.3 (duty to correct errors); Article 16.1 and 2 (rights of defence); Article 18.1 (reason giving); Article 19 (indication of appeal); Article 5.3 (non-discrimination on the grounds of nationality).

According to the complainant, he had received "advice" not to "cause trouble". He turned to the Ombudsman because he believed that the Commission would not handle his complaint satisfactorily.

In summary, the complainant made the following allegations:

1. wrongful dismissal in breach of Commission regulations and the European Code of Good Administrative Behaviour;

2. discrimination on grounds of nationality.

He claimed the following:

1. guarantee that he will not be discriminated against in any future employment opportunities;

2. disciplinary action against the responsible Commission officials; and

3. compensation and damages.

THE INQUIRY

The Commission's opinion

The complaint was forwarded to the Commission, which submitted the following comments:

Background

The complaint relates to the Tacis project “Support to National Co-ordinating Units” (further on referred to as NCU support project). The National Co-ordinating Units were government structures of the Tacis beneficiary countries in charge of EU and related external assistance programmes. The NCU support project covered all 13 Tacis countries and started on 1 August 2000 for an initial duration of one year. The Terms of Reference foresaw, however, the possibility of four consecutive extensions of one year each. Such extensions were subject to the availability of funding and the signature of an extension contract between the European Commission and the contractor.

The contractor of the project was a consultancy company in consortium with other firms. The contract was awarded to this consortium following a restricted tender procedure concluded in July 2000. The complainant had been working for the contractor as an EU long-term expert on the component of the project in the country concerned, based in its capital since its beginning. The component of the country concerned of the NCU support project had experienced significant implementation difficulties. In reaction to these difficulties, an independent assessment of the situation was found to be needed. This assessment took place in May 2003 and resulted in a monitoring report. The report, issued in early June 2003, highlighted the overall relevance of the assistance but also confirmed the difficulties and urged the Commission to take remedial action. In particular, the monitors stressed the need for a reinforcement of the NCU, regular meetings between the NCU Director and the project team and a higher ‘responsiveness’ of the NCU on project documentation.

The report, however, also stated that there had been ‘a breakdown of trust and co-operation between the contractor’s team, the NCU Director and the EC Delegation’. The monitoring report was distributed to all project stakeholders including the contractor and the counterpart in the country concerned. On 24 June 2003, a meeting took place between the NCU Director and the responsible Commission services. During that meeting the Commission made it very clear that an extension of the project beyond 30 September 2003 (when the contract was due to expire) would be conditional on considerable improvements over the ensuing months in relation to the issues identified in the monitoring report. It was also agreed during that meeting that the relevant Commission services would visit the capital of the country concerned in September 2003 to assess the progress made and whether a further one-year extension of the project would be appropriate.

At a meeting on 17 September 2003 between the relevant Commission services, the Commission Delegation in the capital of the country concerned and the NCU Director, the issues raised in the monitoring report were discussed. The NCU Director confirmed the importance she attached to the project supporting the NCU. She also, however, confirmed, as already observed by the monitor in May 2003, a breakdown of trust between herself and the expert team having a very negative effect on the implementation of the project. The Commission took note of this and stated that, as it had no contractual relationship with the experts, the issue would have to be addressed by the contractor, HIFAB International.

From the discussions with the contractor which took place by phone immediately after the meeting (i.e. on the same day) it emerged that both the Commission and the contractor agreed that given the recent history of the project and the critical monitoring report in particular it would not be beneficial for the project to renew the contracts of the EU experts. The contractor therefore agreed to proceed with the identification and recruitment of new experts for the next contract year, which was scheduled to start on 1 October 2003. The contractor suggested, however, that given the short notice involved for the ‘old’ EU experts, they should be allowed to stay for one additional month until 31 October 2003. This proposal was accepted by the Commission. The contractor subsequently informed the EU experts about this decision. It was understood that in the case of the complainant, who was on holiday at that time, this happened on 18 September 2003.

The Commission's position

The Commission had signed a service contract with the consortium and had no contractual link with the experts employed by this consortium. The Commission did not terminate the complainant's contract and there was therefore no ground for a dispute between the complainant and the Commission.

Furthermore, it was important to note that the expert was not dismissed. In agreement with the Commission his contract was not renewed by the contractor taking into account the request from the counterpart of the country concerned. The counterpart of the country concerned referred in this context to a breakdown of trust vis-à-vis the experts, which was a serious impediment for the successful implementation of the project. The possibility of a non-renewal of the contract was inherent in the contract seeing that the initial contract was only intended to last for one year. The two articles that the Commission allegedly breached (Article 17 in the Terms of Reference and Article II.3.12 of the “Rules and Procedures for Service, Supply and Works contracts financed from the General Budget of the European Communities in the context of Co-operation with Third Countries”) both referred to the procedure prior to the award of a new contract.

With regard to the Code of Good Administrative Behaviour, the Commission was of the opinion that none of the articles quoted by the complainant were violated. The Commission did not act because of political pressure (Article 8.2) but due to significant implementation problems preventing the achievement of project objectives. The Commission did not deviate from normal administrative practices (Article 10.1). As outlined above, the rules concerning approval of experts quoted by the complainant were not applicable in this case. The Commission contested that its actions had lacked impartiality or had been unfair or unreasonable (Article 11). Seeing that the Commission had no direct contractual link with the complainant, articles 12, 16, 18 and 19 were not applicable in this case. The lines of communication were between the Commission and the contractor on the one hand and between the contractor and the complainant on the other.

The Commission had no direct influence on the contractor’s staff policy and could not decide not to renew an expert’s contract of employment with the contractor. It was limited to a quality control of experts and could only intervene with the contractor if the performance of his staff in the execution of his contractual obligations was not satisfactory. It was then for the contractor to take the necessary measures for improving his performance. In the present case, the monitoring report showed a breakdown of trust between the experts and the counterpart in the country concerned, which harmed the successful implementation of the project.

As regards the alleged discrimination on grounds of nationality, the Commission contested that the provisions of the Code for Good Administrative Behaviour concerning unjustified discrimination based on nationality had been violated.

In response to the complainant's claims, and in light of its above conclusions, the Commission remarked that a) it did not see why the complainant would not be given future employment opportunities, b) there was no reason to take disciplinary action against its officials, and c) there was no reason to pay the complainant any compensation.

The complainant's observations

In his observations, the complainant maintained his allegations and claims. He also provided a detailed account of how the "breakdown of trust" referred to in the Commission's opinion had, in his view, been due to serious mismanagement on the part of the NCU Director. The complainant claimed that the Commission had known about this mismanagement long before the decision not to renew his contract was taken.

THE DECISION

1 Alleged breaches of the rules on the programme and good administration

1.1 The complainant worked in a country as a consultant for a consortium that had concluded a contract with the European Commission. The contract related to the TACIS project "Support to National Co-ordinating Units", which was subject to annual renewals. The complainant stated that as part of the annual renewal in 2003, the continuation of the project was dependent on the National Co-ordinating Unit (NCU) signing an 'Award Letter'. According to the complainant, the NCU of the country concerned refused to sign the Award Letter to obtain the removal of himself and a colleague from the project.

Following meetings between the NCU and the European Commission, the complainant was refused renewal of his contract by the partner of the consortium for which he worked.

In his complaint to the Ombudsman, the complainant put forward that the Commission should be made responsible for the consortium's decision not to renew his contract. In his first allegation, he alleged breaches of Commission rules relating to the project, and of the European Code of Good Administrative Behaviour. Specifically, he referred to the 'Terms of Reference' of the project (Article 17) and the "Rules and Procedures for Service, Supply and Works Contracts Financed from the General Budget of the European Communities in the Context of Co-operation with Third Countries" (Article II.3.12). As for the European Code of Good Administrative Behaviour, he referred to Article 8.2 (duty not to be guided by political pressure), Article 10.1 (duty to follow normal administrative practices, and to record legitimate grounds when not), Article 11 (impartiality, fairness and reasonableness), Article 12.1 (duty to reply); 12.3 (duty to correct errors); Article 16.1 and 2 (rights of defence); Article 18.1 (reason giving); Article 19 (indication of appeal).

1.2 In its opinion, the Commission referred to the perceived 'breakdown of trust' between the NCU and the complainant, and noted that it had a responsibility for the implementation of the project. It furthermore stressed that there had been no contract between the Commission and the complainant, and that the decision not to renew the complainant's contract had accordingly been that of the consortium.

As for the complainant's first allegation, the Commission rejected that there had been breaches of Commission rules relating to the programme and the European Code of Good Administrative Behaviour. It stated that the provisions referred to by the complainant in the "Rules and Procedures for Service, Supply and Works Contracts Financed from the General Budget of the European Communities in the Context of the Co-operation with Third Countries" and the Terms of Reference (Articles II.3.12 and 17 respectively) were applicable only to cases where the project in question had not yet started. As for the allegations of breaches of the Code of Good Administrative Behaviour, the Commission stated that it did not act because of political pressure (Article 8.2) but due to significant implementation problems preventing the achievement of project objectives; that it did not deviate from normal administrative practices (Article 10.1); that its actions did not lack impartiality, fairness or reasonableness (Article 11), and that in the absence of any direct contractual link with the complainant, Articles 12, 16, 18 and 19 of the Code were not applicable.

1.3 In his observations, the complainant maintained his allegations and claims. He also provided a detailed account of how the "breakdown of trust" referred to in the Commission's opinion had, in his view, been caused by serious mismanagement on the part of the NCU Director. The complainant claimed that the Commission had known about this mismanagement long before the consortium decided not to renew his contract.

1.4 The Ombudsman notes that there was no contractual relationship between the Commission and the complainant, who was employed by one of the partners of the consortium. It was therefore not the Commission that refused renewal of the complainant's contract. The complainant nevertheless considers that the Commission should be made responsible for the consortium's decision not to renew his contract.

1.5 As regards the allegation of breaches of the rules relating to the project, it appears that the Commission has correctly concluded that Article II.3.12 of the "Rules and Procedures for Service, Supply and Works Contracts Financed from the General Budget of the European Communities in the Context of the Co-operation with Third Countries" and Article 17 of the Terms of Reference did not apply to the situation here concerned. As far as the alleged breaches of the Code of Good Administrative Behaviour are concerned, the Ombudsman finds that he has not been presented with evidence or arguments that would confirm those alleged breaches. On the basis of the above findings, the Ombudsman considers that the complainant's first allegation has not been substantiated, and that there has been no maladministration with regard to this part of the complaint.

2 Alleged discrimination

2.1 In his second allegation, the complainant alleged discrimination on grounds of nationality.

2.2 The Commission disputed that any such discrimination had taken place on its part.

2.3. The Ombudsman finds that he has not been presented with any evidence that would show that the Commission discriminated against the complainant. The allegation has accordingly not been substantiated, and the Ombudsman therefore finds that there appears to have been no maladministration with regard to this aspect of the complaint.

3 The complainant's claims

3.1 The complainant had claimed a guarantee that he will not be discriminated against in any future employment opportunities, disciplinary action against the responsible Commission officials, and compensation and damages.

3.2 In the light of its view on the case, the Commission remarked that a) it did not see why the complainant would not be given future employment opportunities, b) there was no reason to take disciplinary action against its officials, and c) there was no reason to pay the complainant any compensation.

3.3 On the basis of the findings in paragraph 1 and 2, the Ombudsman considers that the complainant's claims are unsubstantiated. It appears, therefore, that there is no maladministration with regard to this aspect of the complaint.

4 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 European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS