Decision of the European Ombudsman closing his inquiry into complaint 472/2008/IP against the European Commission

THE BACKGROUND TO THE COMPLAINT

1. This complaint was submitted by the manager of the agency X. It relates to the Commission's decision to close the Euro Info Centre network ('the EIC network')[1] and replace it with the Enterprise Europe network ('the EEN network')[2]. More specifically, the complaint concerns the Commission's alleged failure to inform the complainant in due time of the above decision, and its refusal to allow X to join the EEN network.

2. X was a member of the Bureau des rapprochement des Enterprises ('the BRE network')[3]. In 2003, the Commission decided to close the BRE network and the database which supported it.

3. The complainant, as well as the other former members of the BRE network, had the possibility to request access to the EIC network database, namely, the Business Cooperation Database (BCD). The Commission invited the complainant to sign a declaration concerning the use of the database.

4. On 15 December 2006, the Commission published an open call for proposals[4] to select the partners for the new EEN network.

5. In November 2007, the Commission informed the complainant by e-mail that the BCD database would be closed in January 2008 and replaced by the EEN network database. Access to the EEN network database would be granted only to those of its partners who were selected under the above-mentioned call for proposals.

6. On 15 February 2008, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

7. The Ombudsman's understood the complainant's allegations and claims to be the following.

Allegations

1. The Commission abused its power, since it was not entitled to cancel unilaterally the 'convention'[5] signed by the complainant in order to use the BCD database.
2. The Commission failed to inform the complainant in due time of the call for proposals to participate in the new network, namely, the EEN network.

Claim

The Commission should allow X to join the EEN network.

THE INQUIRY

8. On 1 April 2008, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complainant's allegations and claim. In his letter opening the present inquiry, the Ombudsman asked the institution to provide information on: (i) whether and how the former BRE members using the BCD database were informed of the closure of the EIC network; and (ii) whether the Commission advertised the call for proposals to the members of the EIC network, including those who were former BRE members. The Commission's opinion was forwarded to the complainant, from whom the Ombudsman received observations on 21 October 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of abuse of power

Arguments presented to the Ombudsman

9. The complainant alleged that the Commission abused its power when it decided to cancel unilaterally the 'convention' he signed regarding the use of the BCD database. In support of this allegation, the complainant argued that the Commission did not act in accordance with the Code of Good Administrative Behaviour[6].

10. The complainant also pointed out that the Commission had continuously monitored its input into the BCD database in 2007. The complainant felt that the Commission's monitoring of this activity indicated that the institution intended to allow X to continue to use the BCD in 2008.

11. In its opinion, the Commission explained that, after the BRE network was closed in 2003, its former members had the possibility to request access to the database of the EIC network[7]. The complainant submitted such a request, which the Commission subsequently granted. The Commission, however, underlined that it had no contractual relationship with the former members of the BRE network.

12. The Commission emphasised that it did not sign any 'convention', in a contractual sense, with the complainant. It merely asked the complainant to sign a declaration in order to obtain the latter's written recognition of the rules applicable to the use of the BCD database. By signing the declaration, the complainant accepted that X was not linked to the Commission by contract. He also agreed that X's access to, and participation in, the BCD would be subject to a systematic control of the profiles it entered into the database. Moreover, the Commission retained the right to refuse the complainant access to the database, if it so wished.

13. With regard to the complainant's argument mentioned above in paragraph 10, the Commission explained that it had indeed monitored the quantity and quality of the cooperation profiles posted by the complainant in the BCD database in 2007. This kind of control was carried out by the institution's services on a regular basis, in order to evaluate whether BCD users complied with the BCD working rules. Such monitoring was not specifically aimed at evaluating the complainant's activity for the purpose of determining whether X should be granted access to the BCD database in 2008.

14. In his observations, the complainant maintained his allegation.

The Ombudsman's assessment

15. The complainant used the term 'convention' in his complaint. However, the Ombudsman understands that he in fact intended to refer to the above-mentioned declaration that he signed on October 2004 in order to have access to the BCD database[8].

16. With regard to the status of this declaration, the Ombudsman notes that it was a standard form which contained a description of the working rules of the BCD. By signing the declaration, the complainant confirmed, among other things, that X: (i) agreed to take part in the BCD of the EIC network in the same spirit as the EIC network members; (ii) was not linked to the Commission by contract; (iii) agreed that its participation in the BCD would be subject to a systematic control of the profiles it entered into the database; and (iv) could be denied access to the database, if the Commission so wished.

17. The declaration did not establish any contractual relationship as such between the complainant and the Commission. Accordingly, if the allegation here concerned were to be read as including an argument to the effect that a breach of contract occurred, it must be concluded that no such breach could have taken place in this case.

18. It remains, therefore, to be examined whether the Commission specifically abused its powers in the normal sense of this term, when it decided to close the BCD database.

19. The Community Courts have consistently held that abuse, or misuse, of power occurs when the Administration appears, on the basis of objective, relevant and consistent factors, to have adopted a measure for an illegitimate purpose[9]. Furthermore, Article 7 of the European Code of Good Administrative Behaviour (Absence of abuse of power) provides that "powers shall be exercised solely for the purposes for which they have been conferred by the relevant provisions. The official shall in particular avoid using those powers for purposes which have no basis in the law or which are not motivated by any public interest."

20. The complainant has not provided any concrete arguments to demonstrate that the closure of the BCD database was specifically carried out for an illegitimate purpose. After a thorough examination of the circumstances of the case, the Ombudsman finds that no such illegitimate purpose was pursued by the Commission. On the contrary, it appears that the BCD database was closed solely in the context of the closure of the network for which it had been created. It was, therefore, a natural consequence of another decision (to close the said network), the legality of which was not questioned by the complainant.

21. Finally, with regard to the complainant's argument mentioned in paragraph 10 above, the Ombudsman considers that the Commission's relevant explanation in paragraph 13 is entirely reasonable. Specifically, the Ombudsman cannot see how the Commission's stated monitoring activity for 2007 could be interpreted as implying that the institution intended to guarantee the complainant's participation in the replacement database in 2008.

22. In light of his above findings, the Ombudsman considers that there has been no maladministration corresponding to the complainant's first allegation.

B. Allegation that the Commission failed to inform the complainant in due time of the call for proposals

Arguments presented to the Ombudsman

23. On 15 December 2006, the Commission published an open call for proposals to select the partners for the EEN network. This network was meant to replace the existing EIC network and its database, the BCD, to which the complainant (who was a member of the former BRE network, closed by the Commission in 2003) had access since October 2004. The complainant alleged that the Commission failed to inform him in due time of the publication of this call for proposals.

24. In its opinion, the Commission first set out the following background information.

25. The situation of the members of the EIC network and that of the former members of the BRE network, including the complainant, was not comparable. The members of the EIC network, who unlike the members of the BRE network had a contractual relationship with the Commission, knew that the network was only financed for a limited time period. They were informed about its phasing-out during two EIC Steering Committee meetings in June and November 2006.

26. However, the former BRE network members, including the complainant, were also aware of the developments occurring within the EIC network, since they were granted ad hoc access to a section of the electronic message system of the EIC network, the 'BCD Conference'.

27. With specific regard to the complainant's allegation, the Commission explained that the call for proposals in question was published in the Official Journal on 16 December 2006, in accordance with point 2 of Article 167 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities ('the Financial Regulation')[10]. Additionally, it was posted on the official website of the European Union[11] from which the relevant documents could be downloaded. Furthermore, on 12 January 2007, an information day on the call for proposals was held in Brussels. The event could also have been followed live on the Internet. Finally, an online 'Questions and Answers' facility was operational prior to the call closure date to answer any question raised regarding the services relating to the call. The answers to the questions were posted on the call website and were, therefore, available to any potential applicants. The Commission could not disclose any more specific information about this call for proposals before its publication because it may have breached both the Public Procurement rules and the principle of equal treatment among all potential stakeholders and future partners of the new network, the EEN network.

28. In his observations, the complainant stated that the members of the former BRE network were not aware of the information concerning the phasing out of the EIC network which was discussed during the meetings of June and November 2006. They did not have access to the minutes of these meetings and they were only informed of the closure of the EIC network at the end of November 2007.

The Ombudsman's assessment

29. The Ombudsman understands that, when the complainant alleged that the Commission failed to inform him in "due time", he meant that the Commission failed to inform him directly of the publication of the call for proposals before the call for proposals was actually published. It appears that he made this allegation on the understanding that the members of the EIC network had in fact been given such information before the call was published. He referred to the two above-mentioned meetings, held in June and November 2006, during which the members of the EIC network were informed of the phasing out of the network.

30. The Ombudsman notes that the tender procedures of the Community institutions must follow two fundamental principles: (i) the principle of sound financial management, as provided for in Article 274 of the EC Treaty, and in Article 3 and 27 of the Financial Regulation; and (ii) the principle of equal treatment and non-discrimination. The Ombudsman further notes that the principle of equal treatment of tenderers is a general principle of Community law[12]. In accordance with this principle, tenderers must be in an equal position when they formulate their tenders[13]. As the Commission has indicated, it is fundamentally incompatible with these rules and principles to give targeted potential bidders specific and privileged information on a public call for tenders prior to publication of that call.

31. The complainant essentially argued that the Commission appeared to have informed the members of the EIC network of such specific and privileged information. He, therefore, felt that he should have been informed as well.

32. The Ombudsman emphasises that, even if the Commission had expressly given privileged prior information to the members of the EIC network, this could not in itself have entitled the complainant to receive such information. Moreover, the Ombudsman cannot accept the above-mentioned view of the facts that the complainant appears to have adopted. The minutes of the above-mentioned meeting in June 2006 stated that: "[in] order to respect the rules governing public tenders, the Commission is unable to disclose detailed information [about the call] to the EIC network at this stage". A similar statement was made in the minutes of the meeting held in November 2007: "[s]ince the call has not been published, the Commission is unable to disclose specific information to the EIC network. This would breach public procurement rules". In light of the above, it emerges that, even though the members of the EIC network were informed of the phasing out of this network, they did not receive any relevant specific information about the call for proposals here concerned.

33. In light of the above, the Ombudsman considers that there has been no maladministration corresponding to the second allegation.

C. The complainant's claim that the Commission should allow X to join the EEN network

34. Relying on his above allegations, the complainant claimed that the Commission should allow X to join the EEN network.

35. Given the Ombudsman's finding of no maladministration regarding the complainant's allegations, the complainant's claim cannot stand.

D. Conclusion

On the basis of his inquiries into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration corresponding to the complainant's allegations. Accordingly, his claim cannot stand.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 11 November 2009

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[1] A network of business consultants, who assisted small and medium sized enterprises (SMEs) with specific services in their search for cross-border cooperation. According to the Commission's website, the EICs "[a]re the result of a partnership between the European Commission and the local, regional or national organisations that host them. These can be Chambers of Commerce, regional governments, banks. They provide significant financial and logistical support, as well as access to their databases and information sources. These organisations are selected for their excellent integration in the local business environment, and the quality of their work. They are linked to the Commission by a contractual agreement" (http://www.enterprise-europe-network.ec.europa.eu/index_en.htm).

[2] According to the Commission's website, the EEN "[c]ombines and builds on the former Innovation Relay Centres and Euro Info Centres. The new integrated network offers a 'one-stop shop' to meet all the information needs of SMEs and companies in Europe (http://www.enterprise-europe-network.ec.europa.eu/info/about_network_en.htm).

[3] This refers to a transnational cooperation project launched by the European Commission to assist SMEs in their cross-border activities. The project ran until 2003, when the Commission decided to close the BRE network and its related database.

[4] OJ 2006 C 306/07, pp. 17-23.

[5] The Ombudsman understands that, when the complainant referred to the 'convention', he intended to refer to the declaration that he signed in October 2004, on the Commission's request, in order to use the BCD database.

[6] The complainant did not specify in his complaint whether he referred to the Code of Good Administrative Behaviour for staff of the European Commission in their relation with the public (The Commission's Code of Conduct), OJ 2000 L 308, pp.32-34, or to The European Code of Good Administrative Behaviour, which is available on the website of the European Ombudsman: http://www.ombudsman.europa.eu.

[7] The network was based on a Framework Partnership Agreement (FPA) defining the framework of cooperation between the institution and each individual member. Additionally, a Specific Grant Agreement (SGA) set out the financial and contractual conditions for this cooperation.

[8] This is supported by the fact that, in his complaint, the complainant referred to the 'convention' as the document setting out the BCD working rules. This document is, in fact, the declaration mentioned by the Commission in its opinion.

[9] See Paul Craig, EU Administrative Law, Academy of European Law European University Institute, Oxford University Press 2006, p. 462.

[10] OJ 248 L 48, p. 1.

[11] http://europa.eu

[12] See Case C-57/01 Makedoniko Metro [2003] ECR I-1091, paragraph 69.

[13] See Case C-448/01 EVN and Wienstrom [2003] ECR I-14558, paragraph 47.