Decision of the European Ombudsman on complaint 1551/2005/GG against the European Commission

Strasbourg, 12 December 2006

Dear Mr X,

On 14 April 2005, you submitted to me a complaint against the European Commission, which concerned the Commission's handling of a report. This report concerned a mission carried out by you which had the aim of reviewing the support given to the Prevention of Corruption Bureau in Tanzania. On 28 April 2005, you submitted further documents concerning your complaint to me.

On 4 May 2005, I forwarded the complaint and the further documents you had sent on 28 April 2005 to the President of the European Commission. You were informed accordingly the same day.

On 7 July 2005, you asked my Office to provide you with another copy of my letter of 4 May 2005 to you. My Office forwarded this copy to you the same day.

The Commission sent its opinion on 3 August 2005. I forwarded it to you on 18 August 2005 with an invitation to make observations, which you sent on 5 September 2005.

On 23 September 2005, I asked the Commission for further information in relation to your case. You were informed accordingly the same day.

In an e-mail sent on 9 November 2005, you asked me about the current status of the inquiry. On 15 November 2005, I informed you that the Commission's reply to my request for information (that had been requested for 31 October 2005) had not yet arrived but that it would be forwarded to you as soon as it had been received. In your reply sent the same day, you thanked me for this information.

The Commission sent its reply to my request for information on 23 November 2005. I forwarded it to you on 24 November 2005 with an invitation to make observations, which you sent on 15 December 2005.

In an e-mail sent on 30 January 2006, you asked me about the current status of the inquiry. In my reply sent on 1 February 2006, I informed you that I was examining how to proceed in your case and that I hoped to be able to inform you about the result of this examination by mid-March 2006.

On 10 March 2006, I asked the Commission for a copy of the report drawn up by the new expert in this case. I pointed out that if the Commission were to consider this report to be confidential, I would ask for access to its file. You were informed accordingly the same day.

I had asked the Commission to reply by 15 April 2006 at the latest. On 24 April 2006, the Commission asked for an extension of time until 31 May 2006. In an e-mail sent on 1 May 2006, you asked whether I had received the Commission's reply. By letter of 3 May 2006, I granted the extension of time requested by the Commission. You were informed accordingly the same day.

On 9 June 2006, the Commission informed me that although the internal consultation procedure had reached an advanced stage, it regretted that it was not yet possible to forward its reply to the Ombudsman. The Commission added that it would do its utmost to send this reply as soon as possible.

In an e-mail sent on 12 June 2006, you asked whether any reply had yet been received from the Commission. In my reply of 16 June 2006, I informed you that this was unfortunately not the case. I also forwarded to you the information the Commission had sent to me on 9 June 2006.

On 7 July 2006, the Commission replied to my request for further information of 10 March 2006. Since the Commission expressed the view that it felt unable (at least for the time being) to disclose the report drawn up by the new expert, I informed it, by letter of 13 July 2006, that I considered it necessary to inspect the Commission's file. You were informed accordingly the same day, and a copy of the Commission's reply was forwarded to you on that occasion.

On 25 September 2006, my services inspected the Commission's file. A copy of the report on this inspection was sent to the Commission on 30 September 2006. Another copy was sent to you, with an invitation to make observations.

In an e-mail sent on 4 October 2006, you asked me whether any decision had yet been taken. In my reply of 9 October 2006, I referred to my letter to you of 30 September 2006 which had manifestly not yet reached you when you wrote to me on 4 October 2006.

On 30 October 2006, you informed me that you had no observations on the report on the inspection and that you were expecting my decision.

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

THE COMPLAINT

Background

In the period from 2000 to the end of September 2003, the EU funded the "Support to the Prevention of Corruption Bureau project" (the "PCB" project) in Tanzania with EUR 2 million. The PCB is an authority set up by the Tanzanian authorities in order to deal with problems relating to corruption. The objective of the EU project was institutional strengthening of PCB's headquarters in Dar es Salaam and the six zonal offices in Tanzania. The project included management consultancy, training activities, awareness campaigns and the refurbishment of the Dar es Salaam office.

In 2004, a contract with the title "Review of the Support to the Prevention of Corruption Bureau" was awarded to a consortium (the "Consortium") in order to review the relevance, effectiveness and efficiency of the PCB project and to define future assistance in the anti-corruption area. This contract was signed on 19 November 2004 by the Consortium and the Commission's Delegation in Tanzania (the "Delegation"). The Delegation signed on behalf of the Tanzanian Ministry of Finance, that is to say the National Authorising Officer (the "NAO").

The contract, which commenced on 22 November 2004, specified that the service was to be carried out by the complainant, an anti-corruption expert. The complainant's contract was with a firm of consultants (the "Consultants") that provided services to the Consortium.

The complainant's contract with the Consultants foresaw a total of up to 33 working days (up to 3 days in Europe and up to 30 days in Tanzania). Still according to this contract, the complainant had to submit a draft and a final report. If the Commission failed to make any comments or recommendations on this draft report within three weeks of receiving it, the draft report would be deemed to be approved and would thus lead to the submission of the final report.

According to the terms of reference of the contract awarded to the Consortium, the review was to

"1. assess relevance and effectiveness of implemented activities of the PCB project;

2. assess the implementation of the national anti-corruption strategic action plan."

The latter point referred to Tanzania's national anti-corruption strategic action plan ("NACSAP").

The complaint

In her complaint to the Ombudsman, the complainant presented the relevant facts as follows:

Her mission had been completed in February 2005 and a draft report had been submitted by her. Given that no comments had been received from the Commission, she had then submitted a final report. This final report had been rejected by the official in charge at the Commission. No reasons had been given by the Commission, although she had expressly asked for such reasons. At the request of her firm, an independent senior expert had carried out a counter-expertise of the report and had considered that it fulfilled the standards and responded to the terms of reference.

The official in charge at the Commission had refused to respond to her explicit request for explanations.

The complainant alleged that the Commission's behaviour "clearly violates the Code of Conduct as well as the aim of independent expertise". She claimed that her report should be officially accepted and made public and that the official in charge at the Commission should apologise and be sanctioned for misconduct.

The complainant mentioned that she had also contacted OLAF (the European Anti-Fraud Office), since she suspected that the reason for the alleged misconduct was corruption.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

Facts

On 24 November 2004, the complainant received all relevant reports and documents required for the first mission to Tanzania. The complainant started this mission at the beginning of December. On 21 December 2004, she received the documents required for the second mission, which was foreseen for mid-January.

On 17 January 2005, the complainant informed the Delegation that she was unaware of the fact that she also needed to submit a Financing Proposal. In a meeting that took place that day, staff from the Delegation explained her contractual obligations.

On 2 February 2005, the complainant submitted a first draft report to the Delegation as well as to the NAO. The report did not address large parts of the terms of reference and was sub-standard. It was therefore not accepted. The Consortium, which was informed of this outcome by telephone on 14 February 2005, suggested the possibility of carrying out an internal quality control of the report.

On 1 March 2005, the Delegation received the revised Financing Proposal and the draft report. The Consortium informed the Delegation that the expert in charge of the quality control was Mr A.

On 3 March 2005, the Delegation informed the Consortium that the revised report remained unacceptable. The NAO and the Delegation felt that notwithstanding a certain improvement, the report should be entirely redone. In reply to this request, the Consortium offered to send a new consultant and made two proposals as to the person to be chosen for this purpose.

On 8 March 2005, the Delegation informed the consortium that Mr A. had been chosen. The new expert started his work on 17 April 2005, and the draft review report was submitted to the Delegation on 2 May 2005. This draft was accepted by the Delegation on 16 May 2005, subject to minor corrections.

The complainant's arguments

The relevant contract was concluded with the Consortium. There was therefore no contractual relationship between the Commission and the complainant.

Contrary to what the complainant alleged, the Delegation did act after receiving the draft report. Both the Delegation and the NAO analysed the draft report.

In its comments submitted on 14 February 2005, the NAO pointed out that the documents submitted by the complainant left many questions open and that it was "strongly suggested to review the submitted documents entirely". As regards the draft report as such, the NAO noted that the "overall impression is that that substantial improvement is needed to make this report a working document". With regard to the Financing Proposal, the NAO's conclusion was as follows: "The document is unfinished and important parts are missing. The financial part appears rather cumulative, details are missing. In its present form, it is not seen as [a] valid working document."

Similarly, the Delegation's assessment concluded that "the draft report is very weak in its analysis and does not constitute a proper assessment of neither [sic] the former project to support PCB nor the design of a future intervention."

According to this assessment, the documents submitted by the complainant "have the following general shortcomings:

* no assessment of implementation of NACSAP (2. point in ToR under expected output of review)

* no direct incorporation of NACSAP objectives/strategies in review of achieved outcome of project

* 80 % of specific questions of consultant's ToR remain largely unaddressed

* poor analytical linkage between review and suggested new project design".

The Delegation concluded "that a few amendments/changes in the report are insufficient to raise the analytical value of the report to an acceptable level. We suggest requesting a new consultant to redo the review and recommendations."

As mentioned above, the assessment of the draft documents submitted by the complainant was also the subject of a meeting of the NAO and the Delegation on 14 February 2005. The consortium was informed of the outcome of the meeting on the very same day. The Delegation therefore gave its comments on the draft within the period foreseen in the contract.

The complainant had not substantiated her allegation that an independent senior expert had carried out a counter-expertise of her draft report and found that it fulfilled the standards and responded to the terms of reference. She had even gone further by seeming to refer to "corruption" as the reason for the alleged "misconduct" of the official dealing with the matter at the Delegation. In this regard it should be noted that, on the one hand, both the Delegation and the NAO had agreed on the assessment made of the complainant's drafts, and that, on the other hand, the complainant's employer had never contested the fact that improvements were needed. The report submitted by the new expert did address the issues raised in the original terms of reference to the satisfaction of the Delegation. This new report was placed at the Ombudsman's disposal, should he consider that an inspection of the file was required.

As regards the complainant's allegation that the official in charge "refused to respond to her explicit request for motivation", it should be noted that the Commission received that e-mail message on 7 March 2005 (and not in February 2005 as suggested by the complainant). A reply had been sent on 8 March 2005. In this reply, the complainant had been advised to contact her employer. Indeed, all communications took place between the Commission and the Consortium, as contractually agreed.

Conclusion

The Commission considered that its services had acted properly and that they had respected the rules and principles binding upon it in this case.

The complainant's observations

In her observations, the complainant pointed out that she did not agree with what she perceived to be the Ombudsman's conclusion that there had been no maladministration.

The complainant submitted that the Commission's view that her report had been clearly sub-standard and not even a working document was abusive, given that it had been deemed fully acceptable by an independent expert. The complainant invited the Ombudsman to refer to her professional record, pointing to the CV she attached to her observations.

According to the complainant, the assessment of her drafts had, to the best of her knowledge, not been communicated to the Consultants before 17 March 2005. The complainant submitted a copy of a letter from the Consultants dated 9 March 2005, which informed her that, in the absence of any comments within the period of three weeks foreseen by the contract, her draft report was accepted as a valid final report by the Consultants.

As regards the second point of the terms of reference (the assessment of the NACSAP), the complainant submitted that the official in charge at the Commission had agreed that the first point of the terms of reference should be the main one and that the second point was only a 'cut and paste' exercise, given that there was a recent UNDP (United Nations Development Programme) report on the NACSAP. According to the complainant, the NAO had furthermore confirmed that a full assessment of the NACSAP would take several months.

As regards the Financing Proposal, the complainant submitted that it was not serious to make such a proposal on the basis of recommendations. The complainant argued that she had made her proposal only because the official in charge at the Commission had insisted.

According to the complainant, it was incorrect to say that her draft report had been sub-standard. The complainant asked the Ombudsman to evaluate the report.

In the complainant's view, she had in her report quite directly addressed the management issue to which the Commission had referred, but what she had submitted was not to the taste of the official in charge at the Commission. The complainant submitted that it was not possible to do a job taking several months (namely a serious assessment of the NACSAP) within a few days. She also stressed that, as an independent expert, she had the right to have her own views as to what was the best way to solve the internal management issue. The criticism of the Commission thus reflected a lack of community of views rather than an assessment of quality. In her view, this violated the principle of independent expertise.

The complainant admitted that the Consortium had accepted to send a new consultant but suggested that these firms were fully dependent on good relations with the Delegations.

Further inquiries

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

The first request for further information

On 23 September 2005, the Ombudsman therefore asked the Commission to comment on two statements made by the complainant in her observations, namely (1) that the official in charge at the Commission had agreed that the first point of the terms of reference should be the main one and that the second point (the assessment of the NACSAP) was only a "cut and paste" exercise and (2) that the NAO had furthermore confirmed that a full assessment of the NACSAP would take several months.

In his letter informing the complainant of this request for information, the Ombudsman also explained that the complainant appeared to have misunderstood his letter of 18 August 2005 forwarding the Commission's opinion to her. The Ombudsman pointed out that he only takes a view on a case after having given the complainant the possibility to make observations on the opinion of the institution concerned. The fact that he had forwarded the Commission's opinion to the complainant for her observations did not thus mean that he had already examined and accepted the arguments that the Commission used.

The Commission's reply

In its reply to the Ombudsman's request for further information, the Commission made the following comments:

Evaluating the PCB project had indeed been the main point of the relevant contract. Indeed, the terms of reference had been clear in this regard: "The Consultant shall assess in priority relevance, efficiency and effectiveness of the project, paying particular attention to the effectiveness and efficiency criteria: (...)".

Notwithstanding the above, the fact that there was a recent UNDP report on the NACSAP did not justify the complainant's disregard for the second point of the terms of reference. Indeed, when the complainant started her assignment, the Delegation had provided her with the relevant documents concerning NACSAP activities. On this occasion, the complainant had also been informed about the existence of the UNDP report and the fact that this could be an important document in her NACSAP assessment. However, at no point had the official in charge at the Commission agreed to the assessment of this part of the terms of reference as a 'cut and paste' exercise of the UNDP document only. On the contrary, the complainant had been requested to meet the relevant government and UNDP officials, as well as other stakeholders including the donors supporting the NACSAP intervention of the UNDP.

It should be noted that in December 2004, an Addendum extending the period for the implementation of the project had been signed without any changes being made as regards the content and output of the consultancy.

Once the complainant's assignment had finished, the Delegation had repeatedly informed the Consortium about its expectations regarding the assessment of the NACSAP. This had been done by the Delegation's e-mails of 8 March, 17 March, 31 March and 1 April 2005.

As to the complainant's statement that the NAO had confirmed to the complainant that a full assessment of the NACSAP would have taken several months, the Commission regretted to say that no Delegation staff had been present during this conversation.

It should however be noted that the new consultant had addressed the issue of the NACSAP assessment in his final report. This report had thus sufficiently complied with the second point of the terms of reference.

The complainant's observations

In her observations, the complainant maintained her complaint and made the following further comments:

The Commission's e-mails addressed to the Consortium had been sent well after the period of three weeks foreseen for making comments. She had never been given a chance to respond and to explain her position before turning to the Ombudsman. The Ombudsman should read the new report. She did not believe that the expert could have made an evaluation of the NACSAP. The Commission itself had noted that, due to time constraints, the NACSAP issue had only been covered "superficially" in the new report.

It was true that no official from the Delegation had been present at her meeting with the NAO. However, a person from the EDF had been present. This person had also pointed out another inconsistency in the terms of reference, namely that it made no sense to produce a Financial Proposal without having a project.

Given (a) that the donors of the NACSAP had been largely absent, (b) that making an own investigation of NACSAP had been objectively unfeasible within the given time-frame, (c) that there had been no concrete plan for a continuation of the NACSAP, (d) that her understanding had been that the PCB had to play a central role in anti-corruption and (e) that she had performed a very detailed and critical evaluation of the previous EU programme for the PCB and had worked out a serious proposal for a new programme, she believed she had answered the terms of reference in a competent and professional way.

The second request for further information

On 23 September 2005, the Ombudsman asked the Commission for a copy of the report drawn up by the new expert in this case. The Ombudsman pointed out that if the Commission were to consider this report to be confidential, he would ask for access to its file. A copy of the complainant's observations on the Commission's reply to the first request for further information was forwarded to the Commission on this occasion.

The Commission's reply

In its reply, the Commission informed the Ombudsman that it felt unable to disclose the report drawn up by the new expert without having obtained the approval of the Tanzanian authorities. The Commission noted that it had asked the Tanzanian authorities by letter of 13 April 2006 whether they agreed with the disclosure of the report but that no reply had been received so far. However, the Commission repeated that the Ombudsman was welcome to inspect the document concerned.

The Commission also made further comments on the substance of the case. In particular, it stressed that since it had no contractual relationship with the complainant, it had had no obligation to inform her directly. The Commission added that the report provided by the new expert addressed the evaluation of the NACSAP but that it was natural, given the circumstances, that the new expert was unable to provide an in-depth analysis of the NACSAP. According to the Commission, the new expert had nevertheless been able to address the requested terms of reference in a more acceptable way.

The inspection of the file

Since the Commission had expressed the view that it felt unable (at least for the time being) to disclose the report drawn up by the new expert, the Ombudsman informed it, by letter of 13 July 2006, that he considered it necessary to inspect the Commission's file.

This inspection of the file took place on 25 September 2006. The Ombudsman's services in particular examined the report that had been drawn up by the new expert. It comprised 43 densely-written pages (62 pages with annexes).

The complainant's e-mail of 30 October 2006

A copy of the report on the inspection was forwarded to the complainant for her observations. In an e-mail sent on 30 October 2006, the complainant informed the Ombudsman that she had no observations to make on this report and that she expected the Ombudsman's decision. The complainant stressed, however, that she maintained her complaint and that she considered the Commission's behaviour as constituting abuse of power.

THE DECISION

1 Alleged failure properly to handle an expert's report

1.1 Between 2000 and 2003, the EU funded the "Support to the Prevention of Corruption Bureau project" (the "PCB" project) in Tanzania with EUR 2 million. The PCB is an authority set up by the Tanzanian authorities in order to deal with problems in relation to corruption. The objective of the EU project was institutional strengthening of PCB's headquarters in Dar es Salaam and the six zonal offices in Tanzania. The project included management consultancy, training activities, awareness campaigns and the refurbishment of the Dar es Salaam office. In 2004, a contract with the title "Review of the Support to the Prevention of Corruption Bureau" was awarded to a consortium (the "Consortium") in order to review the relevance, effectiveness and efficiency of the PCB project and to define future assistance in the anti-corruption area. This contract was signed on 19 November 2004 by the Consortium and the Commission's Delegation in Tanzania (the "Delegation"). The Delegation signed on behalf of the Tanzanian Ministry of Finance, that is to say the National Authorising Officer (the "NAO").

1.2 The contract specified that the relevant services were to be carried out by the complainant, an anti-corruption expert. The complainant's contract was with a firm of consultants that provided services to the Consortium (the "Consultants").

It was foreseen that the complainant should submit a draft report and a final report(1). If the Commission failed to make any comments or recommendations on the draft report within three weeks of receiving it, the draft report would be deemed to be approved and would thus lead to the submission of the final report.

According to the terms of reference of the contract awarded to the Consortium, the review was to

"1. assess [the] relevance and effectiveness of implemented activities of the PCB project;

2. assess the implementation of the national anti-corruption strategic action plan."

The latter point referred to Tanzania's national anti-corruption strategic action plan ("NACSAP").

1.3 The complainant submitted a draft report in February 2005. According to the complainant, no comments on this draft were received from the Commission, and she therefore submitted a final report. However, this final report was rejected by the official in charge at the Commission. According to the complainant, no reasons were given by the Commission, although she had expressly asked for such reasons. The complainant submitted that at the request of her firm, an independent senior expert subsequently carried out a counter-expertise of her report and considered that it fulfilled the standards and responded to the terms of reference.

1.4 In her complaint to the Ombudsman, the complainant alleged that the Commission's behaviour "clearly violates the Code of Conduct as well as the aim of independent expertise". She claimed that her report should be officially accepted and made public and that the official in charge at the Commission should apologise and be sanctioned for misconduct. The complainant mentioned that she had also contacted OLAF (the European Anti-Fraud Office), since she suspected that the reason for the alleged misconduct was corruption.

1.5 In its opinion, the Commission explained that on 2 February 2005, the complainant had submitted a first draft report to the Delegation as well as to the NAO. According to the Commission, the report did not address large parts of the terms of reference and was sub-standard. It was therefore not accepted. The Commission noted that the Consortium had been informed of this outcome by telephone on 14 February 2005. A revised version of the draft report was also rejected. In the end, a new expert was asked to take over. The new expert submitted his draft review report to the Delegation on 2 May 2005. According to the Commission, this draft was accepted by the Delegation on 16 May 2005, subject to minor corrections.

1.6 As regards the substance of the case, the Commission stressed that the relevant contract had been concluded with the Consortium and that there was therefore no contractual relationship between itself and the complainant. The Commission further submitted that, contrary to what the complainant alleged, the Delegation did act after receiving the draft report. Both the Delegation and the NAO had analysed the draft report. The Commission noted that in its comments submitted on 14 February 2005, the NAO had pointed out, as regards the complainant's draft report, that the "overall impression is that that substantial improvement is needed to make this report a working document". It added that similarly, the Delegation's assessment had concluded that "the draft report is very weak in its analysis and does not constitute a proper assessment of neither [sic] the former project to support PCB nor the design of a future intervention." The Commission noted that the Delegation had taken the view "that a few amendments/changes in the report are insufficient to raise the analytical value of the report to an acceptable level. We suggest requesting a new consultant to redo the review and recommendations."

The Commission stressed that the complainant's employer had never contested the fact that improvements were needed. According to the Commission, the report submitted by the new expert did address the issues raised in the original terms of reference to the satisfaction of the Delegation. This new report was kept at the Ombudsman's disposal, should he consider that an inspection of the file was required.

As regards the alleged failure to respond to the complainant's explicit request for reasons, the Commission noted that it had received the relevant e-mail message on 7 March 2005 and that a reply had been sent on 8 March 2005. In this reply, the complainant had been advised to contact her employer. The Commission noted that, as contractually agreed, all communications indeed took place between the Commission and the Consortium.

The Commission concluded that it considered that its services had acted properly and that they had respected the rules and principles binding upon it in this case.

1.7 In her observations, the complainant submitted that the Commission's view that her report had been clearly sub-standard and not even a working document was abusive, given that it had been deemed fully acceptable by an independent expert. As regards the second point of the terms of reference (the assessment of the NACSAP), the complainant submitted that the official in charge at the Commission had agreed that the first point of the terms of reference should be the main one and that the second point was only a 'cut and paste' exercise, given that there was a recent UNDP (United Nations Development Programme) report on the NACSAP. According to the complainant, the NAO had furthermore confirmed that a full assessment of the NACSAP would take several months. The complainant submitted that it was not possible to do a job taking several months (namely a serious assessment of the NACSAP) within a few days. She asked the Ombudsman to evaluate her report.

As regards procedural aspects, the complainant noted that, to the best of her knowledge, the assessment of her work had not been communicated to the Consultants before 17 March 2005.

The complainant further submitted that in her report she had expressed views that had not been to the taste of the official in charge at the Commission. She stressed that, as an independent expert, she had the right to have her own views as to what was the best way to solve the relevant issues. According to the complainant, the criticism of the Commission thus reflected a lack of community of views rather than an assessment of quality. In her view, this violated the principle of independent expertise.

The complainant admitted that the Consortium had accepted to send a new consultant but suggested that these firms were fully dependent on good relations with the Delegations.

1.8 Having carefully examined the Commission's opinion and the complainant's observations, the Ombudsman considered that further inquiries were necessary. On 23 September 2005, he therefore asked the Commission to comment on two statements made by the complainant in her observations, namely (1) that the official in charge at the Commission had agreed that the first point of the terms of reference should be the main one and that the second point (the assessment of the NACSAP) was only a "cut and paste" exercise and (2) that the NAO had furthermore confirmed that a full assessment of the NACSAP would take several months.

1.9 In its reply, the Commission acknowledged that evaluating the PCB project had indeed been the main point of the relevant contract. The Commission submitted, however, that the fact that there was a recent UNDP report on the NACSAP did not justify the complainant's disregard for the second point of the terms of reference. It added that at no point had the official in charge at the Commission agreed to the assessment of this part of the terms of reference as being merely a 'cut and paste' exercise. On the contrary, the complainant had been requested to meet the relevant government and UNDP officials, as well as other stakeholders including the donors supporting the NACSAP intervention of the UNDP. In this context, the Commission noted that in December 2004, an Addendum extending the period for the implementation of the project had been signed without any changes being made as regards the content and output of the consultancy.

As to the complainant's statement that the NAO had confirmed to the complainant that a full assessment of the NACSAP would have taken several months, the Commission regretted to say that no Delegation staff had been present during this conversation.

1.10 In her observations on this reply, the complainant maintained her complaint. She insisted that she had never been given a chance to respond and to explain her position before turning to the Ombudsman. The complainant suggested that the Ombudsman should read the new report. She did not believe that the expert could have made an evaluation of the NACSAP. The complainant pointed out that the Commission itself had noted that, due to time constraints, the NACSAP issue had only been covered "superficially" in the new report.

1.11 In light of the further arguments submitted by the parties, the Ombudsman considered that he needed further information in order to be able to deal with this case. On 23 September 2005, the Ombudsman therefore asked the Commission for a copy of the report drawn up by the new expert in this case. The Ombudsman pointed out that if the Commission were to consider this report to be confidential, he would ask for access to its file.

1.12 In its reply, the Commission informed the Ombudsman that it felt unable to disclose the report drawn up by the new expert without having obtained the approval of the Tanzanian authorities. The Commission noted that it had asked the Tanzanian authorities by letter of 13 April 2006 whether they agreed with the disclosure of the report but that no reply had been received so far. However, the Commission repeated that the Ombudsman was welcome to inspect the document concerned.

The Commission also made further comments on the substance of the case. In particular, it stressed that since it had no contractual relationship with the complainant, it had had no obligation to inform her directly. The Commission added that the report provided by the new expert addressed the evaluation of the NACSAP but that it was natural, given the circumstances, that the new expert was unable to provide an in-depth analysis of the NACSAP. According to the Commission, the new expert had nevertheless been able to address the requested terms of reference in a more acceptable way.

1.13 On 13 July 2006, the Ombudsman asked the Commission for access to its file. This inspection of the file took place on 25 September 2006. The Ombudsman's services in particular examined the report that had been drawn up by the new expert. It comprised 43 densely-written pages (62 pages with annexes)(2).

1.14 A copy of the report on the inspection was forwarded to the complainant for her observations. In an e-mail sent on 30 October 2006, the complainant informed the Ombudsman that she had no observations to make on this report and that she expected the Ombudsman's decision. The complainant stressed, however, that she maintained her complaint and that she considered the Commission's behaviour as constituting as abuse of power.

1.15 The Ombudsman notes that the present case concerns both procedural aspects and the substance of the approach adopted by the Commission in this case.

1.16 As regards procedural aspects, the Ombudsman notes that the complainant does not dispute that she did not have a contractual relationship with the Commission and that the Commission's relationship was with the Consortium. In the Ombudsman's view, it is thus clear that any comments that the Commission considered necessary as regards the draft report submitted to it had to be made to the Consortium, and not to the Consultants or to the complainant directly. It emerges from the information and the documents provided by the Commission that the latter did indeed inform the Consortium of its objections within the period of three weeks to which the complainant has referred. Given that the Commission had duly informed its contractual partner, it cannot be held responsible for any possible delay on the part of the Consortium in forwarding this information to Consultants and the complainant.

Furthermore, as regards the Commission's alleged failure to reply to an explicit request for information, the Ombudsman notes that the complainant does not dispute the Commission's argument that this request was made in an e-mail sent by the complainant on 7 March 2005 and that a reply was sent on 8 March 2005. It is true that this reply limits itself to stating that the Commission had entered into a contract with the Consortium and that the complainant was therefore advised to contact her employer as regards any queries she might have. However, given that the complainant herself had, in her e-mail, only stated that she wished to remind the Commission of the contractual rules concerning the absence of any comments or recommendations on the draft report (which she cited in her e-mail), without raising any explicit questions, the Ombudsman considers that the way in which the Commission reacted cannot be criticized. Given that the relevant issue concerned the relationship between the Commission and the Consortium, the advice provided by the Commission was in any event correct.

1.17 In these circumstances, the Ombudsman takes the view that there was no maladministration on the part of the Commission as regards the above-mentioned procedural issues.

1.18 As regards the substance of the Commission's approach in the present case, regard must be had to the fact that the Commission acted on the basis of a contract it had entered into with the Consortium. Although there is no direct contractual relationship between the Commission and the complainant, the contract between the Commission and the Consortium is clearly of decisive importance for the assessment of the present case.

1.19 According to Article 195 of the EC Treaty, the European Ombudsman is empowered to receive complaints "concerning instances of maladministration in the activities of the Community institutions or bodies". The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule or principle binding upon it(3). Maladministration may thus also be found when the fulfilment of obligations arising from contracts concluded by the institutions or bodies of the Communities is concerned.

1.20 However, the Ombudsman considers that the scope of the review that he can carry out in such cases is necessarily limited. In particular, the Ombudsman is of the view that he should not seek to determine whether there has been a breach of contract by either party, if the matter is in dispute. This question could be dealt with effectively only by a court of competent jurisdiction, which would have the possibility to hear the arguments of the parties concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact.

1.21 The Ombudsman therefore takes the view that in cases concerning contractual disputes it is justified to limit his inquiry to examining whether the Community institution or body has provided him with a coherent and reasonable account of the legal basis for its actions and why it believes that its view of the contractual position is justified. If that is the case, the Ombudsman will conclude that his inquiry has not revealed an instance of maladministration. This conclusion will not affect the right of the parties to have their contractual dispute examined and authoritatively settled by a court of competent jurisdiction.

1.22 In the present case, the Commission essentially argues that the draft report that had been submitted by the complainant did not meet the requirements with which it had to comply under the relevant contractual arrangements, that is to say, the terms of reference governing the complainant's work.

1.23 The Ombudsman notes that the complainant has suggested that he should examine her own report and the report produced by the expert that was retained subsequently. In the Ombudsman's view, it is clear that the appraisal of such documents is primarily a matter for the parties involved, that is to say the Commission, the NAO and the Consortium. The Ombudsman considers that it would not be proper to substitute his own appraisal for that of these parties. The Ombudsman is thus limited to examining whether the explanations provided by the Commission in this context are reasonable and coherent.

1.24 The Ombudsman notes that in the present case, both the Delegation and the NAO were very critical of the quality of the draft report prepared by the complainant. He further notes that the Consortium does not appear to have disputed the views expressed by these two bodies. The Ombudsman accepts that the Consortium's acquiescence with the demands made by the NAO and the Commission may also be influenced by other considerations. However, the fact remains that all three parties involved in the main contract agreed that the draft report prepared by the complainant did not meet the requirements and that another expert had to be commissioned to draw up a new report.

1.25 The Ombudsman further notes that the alleged weaknesses of the complainant's draft report are set out in some detail in the documents drawn up by the Delegation and the NAO at the relevant time. One of the main issues raised in these documents concerns the question whether the complainant's draft report adequately covered point two of the terms of reference, according to which the implementation of the NACSAP needed to be assessed.

1.26 As regards this issue, the Ombudsman notes that the complainant does not seem to dispute that her draft report did not contain a full and detailed assessment of the NACSAP. Instead, she submits (i) that she was informed by a Commission official that this was only a 'cut and paste' exercise, given that there was a recent UNDP report on the NACSAP, and (ii) that a full assessment of the NACSAP would, as the NAO had confirmed, have taken several months. As regards the first argument, the Commission has disputed that any such advice was given. The Ombudsman notes that the complainant has not supplied any evidence concerning the information she claims to have been given. Regard should also be had to the fact that if the said information had indeed been given, this would effectively have meant that the second point of the terms of reference no longer needed to be addressed in earnest. Since this would have constituted an important change as regards the tasks to be carried out by the complainant, it would be logical to assume that the complainant had asked for written confirmation in this regard or that she had at least mentioned this information when submitting her draft report. However, no such confirmation appears to have been sought, and the draft report does not appear to refer to the information the complainant claims to have been given. In these circumstances, the Ombudsman considers that the complainant has not established that she was informed that the second part of the terms of reference would require no more than a 'cut and paste' exercise.

As regards the second argument, the Ombudsman considers that it is not necessary to try and ascertain (if this was indeed possible for him) whether the NAO had expressed the view that an evaluation of the NACSAP would require a disproportionate amount of time. Even if this should have been the NAO's view, the fact remains that the complainant was bound to submit a draft report fulfilling the requirements set out in the terms of reference. If after starting her work the complainant should have formed the view that it was not possible to assess the implementation of the NACSAP within the time that was at her disposal, she could have been expected to bring this to the attention of the parties concerned and to suggest an amendment to the relevant provisions. However, no such suggestion appears to have been made.

1.27 The Ombudsman notes that the complainant has argued that an independent senior expert carried out a counter-expertise of her draft report and considered that it fulfilled the standards and responded to the terms of reference. In its opinion, the Commission pointed out that the complainant had not provided any evidence in this context. Notwithstanding this remark, the complainant abstained from submitting such evidence in her further observations. The Ombudsman therefore considers that this argument cannot be considered to have been established.

1.28 In her complaint, the complainant argued that the Commission's approach was incompatible with the "aim of independent expertise". In her observations on the Commission's opinion, the complainant provided further explanations in this context. The complainant suggested that her draft report contained certain remarks that were not appreciated by the Commission. She stressed that the criticism of the Commission thus reflected a lack of community of views rather than an assessment of quality. In her view, this violated the principle of independent expertise.

1.29 The Ombudsman agrees that experts have the role to provide expertise to the best of their knowledge, regardless of whether the body that has commissioned their work is happy with the findings or not. Any suggestion that an expert's work might have been rejected on the grounds that the views expressed by this expert displease the Community administration would therefore raise serious issues. For this reason, the Ombudsman's services have carefully examined the report drafted by the second expert with a view to ascertaining whether the criticism that the complainant had expressed, in her draft report, as regards certain aspects of the PCB project had possibly been diluted or even removed. The result of this examination was negative. If anything, the report drafted by the new expert appeared to be more rather than less critical in this regard than the draft report prepared by the complainant. The Ombudsman therefore considers that the complainant has not established her allegation that the Commission's behaviour in the present case was abusive.

1.30 In her complaint, the complainant pointed out that she suspected that the reason for the misconduct alleged by her was corruption. The Ombudsman considers that this is a serious accusation. However, no further explanations were provided by the complainant in this context, nor did she submit any evidence to support her accusation. In view of these circumstances, the Ombudsman considers that the complainant has not substantiated her allegation of corruption. The Ombudsman notes that the complainant in any event appears to have turned to OLAF concerning this issue.

1.31 The complainant has invited the Ombudsman to refer to her professional record, pointing to the CV she attached to her observations. On the basis of the documents submitted by the complainant, the Ombudsman has no reason to doubt that the complainant is a very experienced and capable expert. However, this does not prove that the Commission acted incorrectly as regards the specific case to which the present case relates.

1.32 In order to verify the information given by the Commission in its opinion and as requested by the complainant, the Ombudsman proceeded to an inspection of the report drawn up by the second expert in the present case. As mentioned above, the Ombudsman would not find it proper to substitute the assessment of the parties concerned by his own assessment. However, it may be useful to note that the report drawn up by the second expert indeed appears to be of a much better quality than the complainant's draft report. Furthermore, this report contains an assessment of the NACSAP which would appear to comply with the requirements that had to be fulfilled.

1.33 In view of all these considerations, the Ombudsman considers that the Commission has put forward a coherent and reasonable account of the reasons for which it believes that its approach is correct. No maladministration is therefore found as regards the allegations put forward by the complainant.

1.34 In view of this finding, the complainant's claim that her report should be officially accepted, that it should be made public and that the official in charge at the Commission should apologise and be sanctioned for misconduct must therefore fail.

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

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(1) It appears that the complainant also had to submit a 'Financing Proposal'. Given that the arguments submitted by the Commission and the complainant mostly concerned the draft report (and not the 'Financing Proposal'), the present decision will only focus on the Commission's handling of the draft report.

(2) It may be useful to note that the draft report submitted by the complainant comprised 34 pages (plus an annex - the 'Financing Proposal' - of 7 pages).

(3) See Annual Report 1997, pages 22 sequ.