Decision of the European Ombudsman on complaint 3917/2005/DK against the European Commission

Strasbourg, 26 July 2007

Dear Mr N.,

On 21 December 2005, you submitted a complaint, on behalf of the MATAMAD Consortium, to the European Ombudsman against the European Commission, concerning your proposal for EU STREP call FP6-2005-LIFESCIHEALTH-7.

On 23 January 2006, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 21 March 2006 and I forwarded it to you with an invitation to make observations, if you so wished, by 15 May 2006. No observations have been received from you.

On 26 September 2006, I sent a letter of further inquiries to the Commission. T he Commission sent its reply to my request for further information on 23 November 2006. I forwarded it to you with an invitation to make additional observations, if you so wished by 21 January 2007. No additional 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 made, in summary, the following submissions:

The complainant submitted a proposal in response to the EU Scientific Targeted Research Project ("STREP") call for proposals - Life Sciences, Genomics and Biotechnology for Health FP6-2005-LIFESCIHEALTH-7(1) ("the Call"). He did so before the deadline of 9 November 2005 at 17:00 had expired, using the Electronic Proposal Submission System ("EPSS") online submission procedure. The complainant's proposal consisted of Part A (forms) and Part B (content).

After the deadline expired, the complainant discovered that the appendix of the proposal, file MATAMAD_part_B_Appendix_091105.pdf ("the Appendix"), uploaded on the EPSS server on 9 November 2005, at 17:00:27, had replaced Part B, file MATAMAD_part_B_091105.pdf ("the Main Proposal"), uploaded on 9 November 2005, at 16:52:32, instead of being attached to it. Given that the deadline had already passed and that the proposal could not be altered on the EPSS server anymore, the complainant contacted by e-mail the EPSS Help Desk on 9 November 2005 at 17:25 in order to seek a solution and attached the Main Proposal to the e-mail. In a further e-mail of 10 November 2005, the complainant contacted the Commission's unit responsible for the call, that is, unit F2 of the Commission's Directorate-General for Research ("DG Research"). He requested that the relevant unit ensure that the Eligibility Committee take into consideration the proposal submitted in a timely manner, namely, the Main Proposal submitted on 9 November 2005 at 16:52:21, and disregard the Appendix, since it was submitted after the deadline, at 17:00:27.

On 13 December 2005, the Director of Directorate F of DG Research informed the complainant that the Eligibility Committee had rejected its above request on the basis of the fact that the EPSS system was fully operational on 9 November 2005. The Director also pointed out that the Call explicitly provided, in point 5, that e-mails were not allowed when submitting proposals, and stated that it therefore was impossible to take into consideration the documents the complainant had provided by e-mail on 9 November 2005, at 17:25. In addition, the Director stated that the Eligibility Committee had also based its conclusion on the information made available by the Commission on the preparation and submission of proposals.

On 21 December 2005, the complainant made the present complaint to the European Ombudsman. The complainant alleged that the Eligibility Committee of the EU STREP calls had unfairly rejected its proposal for the Call.

THE INQUIRY

The Commission's opinion

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

The Commission first recalled the background of the case:

The complainant's proposal was submitted via the EPSS in the framework of the Call, the deadline for submissions to which was 17:00 9 November 2005. According to the EPSS log history of the complainant's proposal, on 9 November 2005, the complainant submitted the Main Proposal for the part of the proposal known as "Part B", that is, the main technical description of the work to be carried out. On the same day, this file was modified several times by the complainant. The last three times when it was updated were (i) at 16:52:21 (submitted 16:52:32), (ii) at 17:00:17 (submitted at 17:00:27) and (iii) at 17:00:53. The modified file submitted at 16:52:21 was the Main Proposal, whereas the other two were the Appendix. The upload of 17:00:53 was interrupted a few seconds later as the deadline for submission expired before the complainant could complete the full upload of the document, that is, submit the document. Each successful subsequent submission was confirmed immediately and automatically by the EPSS.

On 9 November 2005, at 17:25, the complainant telephoned the EPSS Help Desk and at the same time sent an e-mail message, in which he requested that all previous on-line versions of the proposal be replaced by the two files attached to that e-mail, because of the fact that the Main Proposal could not be found in the on-line submission form.

On 9 November 2005 at 18:14, the complainant sent a further e-mail to the EPSS Help Desk and stated that the Main Proposal, uploaded at 16:52:21, did not appear in the downloaded options of Part B, and that only the Appendix, uploaded at 17:00:17, was shown. It therefore asked the Commission to disregard the Appendix and to take into account the Main Proposal, uploaded at 16:52:21, as the complainant's principal submission, unless the files sent by e-mail on the same day at 17:25 could be accepted.

On 10 November 2005, the complainant sent another e-mail to the Commission to explain that its complete proposal had been submitted in time, and that, after having sent an updated version of Part B on 9 November 2005 at 16:52:21, the Appendix was uploaded at 17:00:17. The complainant stated that this Appendix had replaced the Main Proposal, even though the complainant had expected that, since the file names were different, it would have been added to that file. The complainant asked the Commission to disregard the late Appendix and to consider for evaluation the Main Proposal, uploaded at 16:52:21.

On the same day, the complainant sent a second e-mail to the Commission to explain why the Appendix was uploaded. The complainant declared that, according to the confirmation of submission from the EPSS, no annexes had been submitted. The complainant also stated that the provision of the "Guide for proposers" for the call, which states that "[u]nless specified in the call, any further files with annexes (...) will be rejected", was interpreted to mean that the Main Proposal, uploaded at 16:52:21, would not be deleted and that there would be space to add an optional annex. Based on the fact that the two files, that is, the Main Proposal and the Appendix, had different names, the complainant did not expect that the former would be replaced by the latter. The complainant again asked the Commission to disregard the latter and consider the former for the proposal.

Still on the same day, the Commission acknowledged receipt of the complainant's e-mails and informed it that the case would be referred to the Commission's internal Eligibility Committee, which was responsible for reviewing problems related to proposal submissions and other eligibility issues.

On 11 November 2005, the EPSS Help Desk explained, in an e-mail to the complainant, that "every subsequent upload in the Part B area (content area) overwrites the previous file" and that "this is clearly asked to be confirmed while attempting the new upload". The e-mail further clarified that the document submitted at 17:00:27 overwrote the document submitted at 16:52:32; that it was not possible to accept the proposal and the files sent by the complainant in the e-mail of 9 November 2005; and that the incident reported by the complainant would be transferred to the Commission for review.

On 16 November 2005, the complainant inquired about the date when the Eligibility Committee would deliver its conclusions regarding the matter. On the same day, the Commission informed the complainant that the Eligibility Committee would meet by the end of November 2005 and that an answer would be given at the beginning of December 2005.

Still on 16 November 2005, the EPSS Help Desk sent the Commission a list of proposals that had encountered difficulties with the electronic submission for the call, on the basis of which the Commission drew up a list of cases to be discussed by the Eligibility Committee.

On 24 November 2005, the Eligibility Committee examined all such proposals, including the complainant's one. The Eligibility Committee did not find any fault in the functioning of the EPSS on 9 November 2005. It therefore rejected the complainant's request to take into consideration its proposal submitted by e-mail at 17:25 on 9 November 2005. The Eligibility Committee stated that the information received through the EPSS would be submitted for evaluation. On 13 December 2005, the complainant was informed accordingly by e-mail.

On the substance of the complaint, Commission made the following observations:

In accordance with its mission statement and the principle of equal treatment, the Eligibility Committee examined all the cases that had encountered electronic submission problems on the basis of the EPSS report and the information provided by the operational units responsible for each call. All information concerning the complainant's proposal was duly taken into consideration and no related facts were overlooked. The Commission's letter of 13 December 2005, informing the complainant of the Eligibility Committee's decision, specified that the conclusions of the Eligibility Committee were based on (i) the complainant's correspondence regarding the difficulties it had experienced; (ii) the EPSS report on the activity of the proposal on the date the Call was closed; (iii) the fact that the EPSS was fully operational on 9 November 2005; and (iv) the information made available by the Commission concerning the preparation and submission of proposals. Therefore, the complainant's proposal had been thoroughly examined by the Commission services and the decision of the Eligibility Committee was justified.

Contrary to the complainant's allegation, the Eligibility Committee did not reject the complainant's proposal as ineligible. It only stated in its challenged decision that the information received through the EPSS would be submitted for evaluation. Therefore, the last submitted version of the complainant's proposal, that is, the Appendix, uploaded at 17:00:17 (submitted at 17:00:27) was accepted for evaluation.

As regards the overwriting of the subsequent files uploaded on the EPSS, the co-ordinators were clearly informed in the Guidelines on Proposal Evaluation and Selection Procedure(2) that every subsequent upload would overwrite the previously uploaded file, and that the EPSS asked for confirmation of each subsequent upload, whenever a new upload was attempted. In particular, when Part B of a proposal is already uploaded and a new upload is requested, the EPSS informs the co-ordinator by means of a pop-up message that the uploaded Part B is going to be overwritten: "[t]he Part B already exists. Do you want to overwrite it? - OK or Cancel". Therefore, the complainant, having submitted several modified versions of the proposal on 9 November 2005, could not claim that, when uploading the Appendix at 17:00:17 and pressing the "OK" option, it did not understand that it would overwrite the already uploaded file, that is, the Main Proposal. In accordance with the above Guidelines, proposals must contain two parts (Part A and Part B) and no Annexes could be accepted. Therefore, the complainant's assumption that the Appendix would be added to the already uploaded Main Proposal could not be sustained. Given the fact that the functioning of the EPSS on 9 November 2005 was verified and no technical or other problems that would have indicated that the warnings and other provisions relating to the normal submission had not been working at the time of the complainant's submission were identified, the Commission could not be held responsible for the overwriting of the complainant's Main Proposal with the Appendix. It was the co-ordinator's responsibility to ensure the correct submission of a complete proposal and its timely submission.

With regard to the complainant's request of 9 November 2005 that its proposal submitted by e-mail on the same day at 17:25 be considered for evaluation, the Commission stated that, in accordance with the provisions of the Call, proposals submitted by e-mail or fax have to be rejected. In case of successive submissions of the same proposal, the Commission has to examine the last version received before the closure date and time specified in the call. As regards the closure date and time, the Commission may receive, in general, proposals through the EPSS, that is, normal submission, as well as by e-mail and courier, that is, paper submission. Paper submission is possible only after the Commission's explicit approval is given. Since a paper submission is manually received by the Commission and the reception stamp for paper versions only registers full minutes, the equal treatment of the two means of submission requires that proposals arriving before the next full minute of the deadline be accepted. In the present case, proposals submitted before 17:01 on 9 November, that is, until 17:00:59, were therefore eligible. The Commission was not in a position to accept submissions after the closure of the Call and it therefore transferred for evaluation the last version of the complainant's proposal submitted through the EPSS before the deadline.

The Commission concluded that the complainant's request had been treated fairly because the conclusions of the Eligibility Committee were based on (a) a detailed analysis of the case; (b) the information contained in the Call; and (c) the treatment of similar cases in similar circumstances. The Commission's decision was therefore taken in accordance with the rules and procedures for the submission of proposals in force. In view of the principles of non-discrimination and equal treatment, the Commission could not provide preferential treatment or a special exemption regarding the submission of the complainant's proposal by e-mail. No fault could be assigned to its services for the co-ordinator's failure to follow instructions and the clear indications provided in each step of the submission.

The complainant's observations

No observations were received from the complainant by the date set for this purpose.

Further inquiries

After careful consideration of the Commission's opinion, it appeared that further inquiries were necessary. On 26 September 2006, the Ombudsman therefore wrote to the Commission asking it (i) to explain whether and how candidates were informed that the deadline of 17:00 actually meant 17:00:59; (ii) to address, if no such information was provided, the potential implications of this fact for the complainant's case; and (iii) to specify whether submission of proposals on paper was authorised for any applicant as regards this specific call for proposals.

The Commission's reply

In its reply of 23 November 2006, the Commission made, in summary, the following comments:

As regards the Ombudsman's first question, the Commission pointed out that, according to the Call, the submission of a proposal could be done in either of two ways: electronically or on paper. In the latter case, the co-ordinator was required to request permission from the Commission to submit the proposal on paper. The time by which the proposal must reach the Commission was indicated in point 6 of Annex II of the Call, which was "9 November 2005 at 17:00 ( Brussels local time)". This time-limit applied to proposals to be submitted either physically to the Commission's post office(3), that is, on paper by hand, post, or express courier, or electronically via the EPSS. The Commission explained that, when a proposal is delivered at the above post office, an acknowledgement of receipt is stamped with an electronic time clock, which shows the date, the hour and the minute, for example, 06.10.2003 14:22. This electronic time clock only registers full minutes. The acknowledgment of receipt consists of three sheets: one is attached to the proposal envelope, one is returned to the person submitting the envelope and one is filed at the post office. Any proposal receiving the full hour stamp, that is, before the time clock turns to 17:01, will then be considered as received by the Commission in time. Therefore, it is fair and legitimate for the equal treatment of all applicants for grants, regardless of the means of submission, to accept all proposals arriving before 17:01. The Commission acknowledged that the deadline (17:00) only appeared in the Call for proposals and that this might have caused some concern and misinterpretations with the proposer. However, it pointed out that it treated all applicants for grants equally during the Sixth Framework Programme (FP6) and that there were very few, if any, cases where the interpretation of the deadline had been to the disadvantage of the proposer. The Commission added that it would consider adding an unambiguous clarification in this regard in the text of the Call for proposals for the Seventh Framework Programme (FP7).

As regards the Ombudsman's second question, the Commission stated that there was no further information published indicating the time and date of the submission. Nevertheless it pointed out that anyone using the EPSS is informed about the advantages of submitting a proposal electronically, in particular the possibility to submit an early draft to ensure that the format is correct and then be able, before the closure of the call, to submit further versions as many times as one wishes, knowing that the last version is always the one accepted for evaluation. Each new submission overwrites the previous one, which is also true with the paper submissions: only the last one is accepted and evaluated. The electronic submission however is only possible while the EPSS system is still operating, that is, until the deadline. Once the call is closed, electronic submission is no longer possible.

In the complainant's case, the possibility given to the co-ordinator to submit the proposal and subsequently to modify it, shows that the co-ordinator was fully aware that the deadline of the call had still not expired when a successful submission was performed at 17:00:27 and when starting to upload a new submission at 17:00:53, which was interrupted a few seconds later when the deadline expired. The Commission stated that in the framework of the FP6-2005-LIFESCIHEALTH-7 call for proposals, four proposals, including the complainant's one, were submitted between 17:00:00 and 17:00:59.

As regards the Ombudsman's third question, the Commission declared that, although the paper submission of proposals was not excluded, the Commission did not receive, in the Call in question, any request for permission to submit the proposal on paper.

The complainant's observations

No observations were received from the complainant by the date set for this purpose.

THE DECISION

1 The Commission's allegedly unfair rejection of the complainant's proposal for the Call

1.1 On 9 November 2005, the complainant submitted a proposal in response to an EU Scientific Targeted Research Project ("STREP") call for proposals - Life Sciences, Genomics and Biotechnology for Health FP6-2005-LIFESCIHEALTH-7(4) ("the Call"). He did so before the deadline had expired (9 November 2005 at 17:00), using the Electronic Proposal Submission System ("EPSS"), an online submission procedure. The complainant's proposal consisted of Part A (forms) and Part B (content). After the deadline expired, the complainant discovered that the Appendix of the proposal, file MATAMAD_part_B _Appendix_091105.pdf ("the Appendix"), uploaded on the EPSS server on 9 November 2005, at 17:00:27, had replaced Part B, file MATAMAD_part_B _091105.pdf ("the Main Proposal"), uploaded on 9 November 2005, at 16:52:32, instead of being attached to it.

The complainant therefore contacted the Commission and requested that the Eligibility Committee consider its Main Proposal, submitted on 9 November 2005 at 16:52:21, and disregard the late Appendix, submitted after the deadline, at 17:00:17, unless the files sent by e-mail on the same day at 17:25 could be accepted. On 13 December 2005, the Director of Directorate F-Health of the Commission's Directorate-General for Research informed the complainant that the Eligibility Committee rejected the complainant's request. It justified its decision by pointing to (i) the fact that the Call (in point 5) explicitly stated that e-mails were not allowed when submitting proposals and that it was thus impossible to take into consideration the documents the complainant had provided by e-mail on 9 November 2005 at 17:25; (ii) the EPSS report on the activity of the complainant's account on the final day of submission; (iii) the fact that the EPSS system was fully operational on 9 November 2005; and (iv) the information made available by the Commission on the preparation and submission of proposals. In his complaint of 21 December 2005 to the European Ombudsman, the complainant alleged that the Eligibility Committee had unfairly rejected the complainant's proposal.

1.2 In its opinion, the Commission stated that, in accordance with its mission statement and the principle of equal treatment, the Eligibility Committee duly examined all information concerning the complainant's proposal. Its decision to reject the complainant's request was based on (i) the complainant's correspondence regarding the difficulties it had experienced; (ii) the EPSS report on the activity of the account on the date of closure of the Call; (iii) the fact that the EPSS was fully operational on 9 November 2005; and (iv) the information made available by the Commission concerning the preparation and submission of proposals. The Commission also pointed out that, when adopting its challenged decision, the Eligibility Committee did not reject the complainant's proposal as ineligible. It only rejected the complainant's request to consider the proposal submitted by e-mail on 9 November 2005 at 17:25, and indicated that the information received through the EPSS would be submitted for evaluation. In this regard, the Commission referred to the Call and relevant guidelines, which provided that (i) proposals should have two parts (Part A and Part B); (ii) no annexes could be accepted; (iii) every subsequent upload would overwrite the previously uploaded versions; (iv) when attempting a new upload, each subsequent upload had, as EPSS requested, to be confirmed; (v) the deadline for submitting proposals was 9 November 2005 at 17:00; and (vi) proposals submitted by e-mail or fax had to be rejected. Therefore, the complainant's request had been thoroughly examined by the Commission services and the decision of the Eligibility Committee was justified.

1.3 In the context of the Ombudsman's further inquiries, the Commission explained that there were two possibilities for submitting a proposal: either electronically or on paper. In the latter case, the co-ordinator is required to request permission from the Commission to submit the proposal on paper, and the proposal must be delivered to the Commission's post office. When such a proposal is delivered at the post office, an acknowledgement of receipt is stamped with an electronic time clock, which shows the date, the hour and the minute, for example, 06.10.2003 14:22. This electronic time clock only registers full minutes and thus any proposal receiving the full hour stamp, that is, before the time clock turns to 17:01, is considered to have been submitted in a timely manner. Therefore, it is fair and legitimate for the equal treatment of all applicants for grants, regardless of the means of the submission, to accept all proposals arriving before 17:01. With regard to the complainant's submission, it appeared that the co-ordinator was fully aware that the deadline of the call had still not been exceeded when a successful submission was made at 17:00:27 and when the upload of a new submission commenced at 17:00:53 (which was interrupted a few seconds later as the deadline expired). In the framework of the Call, four proposals, including the complainant's proposal, were submitted between 17:00:00 and 17:00:59, while no request for paper submission was received by the Commission.

1.4 The complainant submitted no observations on the Commission's opinion on the complaint and on the additional information provided by the Commission in the context of the Ombudsman's further inquiries.

1.5 As a preliminary point, the Ombudsman notes that the complainant challenges, in essence, the Eligibility Committee's decision to reject his request to consider either (i) the Main Proposal submitted in a timely manner on 9 November 2005 at 16:52:21 and disregard the Appendix, since it was submitted after the deadline, at 17:00:27; or (ii) the proposal that he sent by e-mail on 9 November 2005, at 17:25.

1.6 The Ombudsman would first like to recall the general principle of equal treatment of applicants for grants(5). This principle implies that (i) all applicants are under an equal duty to take care in drawing and submitting their proposals(6) and (ii) applicants are in a position of equality when their proposals are being assessed(7). Hence, when proposals are being assessed, the admissibility criteria must be applied objectively and uniformly to all applicants(8). Τhe principle of equal treatment of applicants of grants also implies an obligation of transparency, in order to enable verification that this principle has been complied with(9). The above requirement means, inter alia, that the admissibility criteria stated in a call for grant proposals must be formulated in such a way as to allow all reasonably well-informed and normally diligent applicants to interpret them in the same way(10). In this context, information made publicly available by the contracting authority to (potential) applicants for grants with regard to the interpretation and application of the admissibility criteria is particularly important. Such information is likely to affect the preparation and formulation of their proposals(11) and is substantially relevant to the significant Community interest of affording applicants the opportunity to compete on an equal footing. Consequently, when the contracting authority examines the proposals submitted to it, it must, in addition to ensuring consistency in its behaviour, have due regard for the information contained in those proposals, at least to the extent that the accuracy or propriety thereof has not been contested by an applicant or is not in manifest violation of the relevant provisions of the call for proposals or of Community law(12).

As regards the case at hand, the Ombudsman first notes that, in accordance with point 4 of the Call for indirect RTD actions, the Commission made available to applicants an "EPSS Online preparation and submission guide"(13) ("the Guide"), which contained information on the preparation and submission of a proposal for an indirect RTD action, and the "Guidelines on Proposal Evaluation and Selection Procedure"(14) ("the Guidelines").

Furthermore, according to point 5 of the Call,

"[p]roposals for indirect RTD actions are invited to be submitted only as an electronic proposal via the web-based Electronic Proposal Submission System (EPSS). (...) Versions of proposals for indirect RTD actions submitted (...) by e-mail or by fax will be excluded."

According to point 6 of Annex 1 to the Call, the closure date for submitting proposals was 9 November 2005 at 17:00 ( Brussels local time). Furthermore, according to point 7 of the Call, "[i]n the case of successive submissions of the same proposal for an indirect RTD action, the Commission will examine the last version received before the closure date and time specified in the call concerned."

According to point 1.8 (Submit proposal) of the Guide,

"[i]n order to complete the proposal submission the proposer must select the "Submit proposal" section. ... The proposal can be modified and submitted up until the closure of the call. Each subsequent submission overwrites the previously submitted version (earlier versions are not archived)." (emphasis in original)

Furthermore, point 1 of Annex J of the Guidelines provides that

"[o]nce successfully submitted, the coordinator receives a message that indicates that his/her proposal has been received and accepted for submission. The coordinator may continue to modify his/her proposal and submit revised versions overwriting the previously submitted one up until the call closure, but will not be able to modify the proposal after call closure".

Furthermore, according to point 1.6.1 of the Guide,

"[u]nless otherwise specified in the call text, only one PDF file comprising the complete technical annex (part B) can be uploaded. Further files with annexes or additional information (...) will be rejected. ... You should not annex any other files unless this is specifically requested in the Call Text."

The Ombudsman also notes that point 5, fifth paragraph, of the Call provides that "[a]ll proposals for indirect RTD actions must contain two parts: the forms (Part A) and the content "Part B)", and that there is no specific request for annexes in the Call.

1.7 As regards the complainant's request to the Commission that all previous on-line versions of the proposal be replaced by the two files attached to his e-mail sent on 9 November 2005, at 17:25, and the decision of the Eligibility Committee not to accept this request, the Ombudsman notes that the Call explicitly stated that proposals submitted by e-mail or fax would be excluded. Consequently, and considering furthermore that the complainant's above e-mail was sent after the deadline provided for in the Call, the Ombudsman finds that the Eligibility Committee acted in accordance with the Call when it rejected the said request and did not act unfairly. In addition, the Commission has provided valid and adequate explanations as regards the reasons for which it could not accept the above-mentioned request of the complainant.

1.8 As regards the complainant's request to the Commission to disregard the Appendix, since it was uploaded at 17:00:27, that is, after the expiry of the deadline, and to consider its Main Proposal, uploaded in a timely manner, at 16:52:21, the Ombudsman notes the following:

1. The Call provided that the deadline for the submission of applications would expire on 9 November 2005 at 17:00 ( Brussels time). The provision did not determine whether the closure time was 17:00 sharp, that is to say, 17:00:00 or the end of the minute of 17:00, that is to say, 17:00:59. The Commission has given explanations with regard to its interpretation of this provision, which have not been contested, in a specific way, by the complainant.
2. On the basis of the information provided by the Commission, which the complainant did not contest, this interpretation appears to have been applied objectively and uniformly to all applicants.
3. According to the Call, only the last version of a proposal received before the closure date and time would be examined by the Commission.
4. By virtue of the principle of non venire contra factum proprium, the complainant cannot invoke effectively, vis-à-vis the Commission and the other applicants, the alleged irregularity of its own actions, namely, its allegedly untimely submission of the Appendix, as a justification for taking into account its Main Proposal, rather than the Appendix which replaced its Main Proposal.
5. The Ombudsman recalls (i) the above provisions of points 5 and 7 of the Call; (ii) the above-mentioned provisions of the Guide and the Guidelines; and (iii) the Commission's explanation, which the complainant did not contest, that the EPSS informed the applicant by means of a pop-up message which appeared when a new upload was being attempted within the prescribed deadline, that Part B, which had already been submitted, would be overwritten. In view of the above, the Ombudsman considers that it should have been clear to the complainant that its uploading the Appendix, at 17:00:27, would overwrite the Main Proposal already uploaded, rather than be added to it.

1.9 In light of the above, the Ombudsman considers that it has not been established that the complainant's request at issue was unfairly rejected by the Eligibility Committee.

1.10 As regards the Commission's statement that it would consider adding an unambiguous clarification about the exact time of the expiry of the deadline for the submission of grant proposals in the text of the call for proposals for the Seventh Framework Programme, the Ombudsman will make a relevant further remark below.

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.

FURTHER REMARK

As noted in point 1.6 of the above decision, the principle of equal treatment of applicants of grants also implies an obligation of transparency, in order to enable verification that this principle has been complied with. The above requirement means, inter alia, that the admissibility criteria stated in a call for grant proposals must be formulated in such a way as to allow all reasonably well-informed and normally diligent applicants to interpret them in the same way. This is particularly important when it comes to the admissibility criterion concerning the time for submission of a grant proposal.

In the present case, the call for proposals provided that the deadline for the submission of applications would expire on 9 November 2005 at 17:00 ( Brussels time). The provision did not determine whether the closure time was 17:00 sharp, that is to say, 17:00:00, or the end of the minute of 17:00, that is to say, 17:00:59 . In the context of the Ombudsman's further inquiries into the case, the Commission stated that it would consider adding an unambiguous clarification concerning this issue in the text of the call for proposals for the Seventh Framework Programme. In light of the principles referred to above, the Ombudsman would like to encourage the Commission to add such a clarification both in the above-mentioned call for proposals and in similar future calls.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2005 C 168, p. 54.

(2) C(2003) 883 of 27 March 2003, as last modified by C(2004) 1855 of 18 May 2004.

(3) At 1, Rue Genève, now changed to DAV1, 3, Avenue du Bourget, 1140 - Evere.

(4) OJ 2005 C 168, p. 55.

(5) See Article 109 of the Financial Regulation applicable to the general budget of the European Communities: "1. The award of grants shall be subject to the principles of transparency and equal treatment." Cf also Case C-57/01 Makedoniki Metro and Mikhaniki [2003] ECR I-1091, paragraph 69 (concerning tenders).

(6) Cf. Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 47 (concerning tender procedures).

(7) Cf. Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 34 (concerning tender procedures).

(8) Cf. See Case C-448/01 Evn and Wienstrom [2003] ECR I-14527, paragraph 48 (referring to award criteria in tender procedures).

(9) Cf. Case C-448/01 Evn and Wienstrom, cited above, paragraph 49.

(10) Cf. Case C-19/00 SIAC Construction [2001] ECR I-7725 paragraph 42 (referring to award criteria in tender procedures).

(11) Cf. Case C-331/04 ATI EAC [2005] ECR I-10109, paragraphs 24, 28, and 29 (concerning tender procedures).

(12) Cf. the Ombudsman's decision on complaint 3693/2005/ID, point 1.3 (regarding tender procedures).

(13) Available on the Cordis website ( http://cordis.europa.eu/documents/documentlibrary/2098EN.pdf).

(14) The Guidelines are available on the Cordis website (ftp://ftp.cordis.lu/pub/documents_r5/natdir0000070/s_1984005_20040909_140012_1984en.pdf).