Decision of the European Ombudsman closing his inquiry into complaint 1806/2009/(BU)ELB against the European Commission

THE BACKGROUND TO THE COMPLAINT

1. The present complaint was lodged by an NGO. The complainant signed several grant agreements with the Commission, including contract A and contract B. On 5 January 2009, the Commission announced its intention to recover money paid to the complainant for the two projects because of alleged irregularities by a member of its staff.

2. In July 2009, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

3. The Ombudsman opened an inquiry into the following allegations and claim.

Allegations:

(1) The Commission failed to inform the complainant of the state of progress and the outcome of the investigations which it opened against it and its staff member's organisation.

(2) The Commission violated its contractual obligations under contracts A and B. In support of this allegation, the complainant argued the following:

(a) As regards contract A, only the first cost statement was subject to the audit. In the absence of any decision by the Commission to terminate the contract, nothing entitles it to refrain from processing the remaining cost statements or to request reimbursement of the whole advance payment made to the complainant.

(b) As regards contract B, the Commission should have remedied the situation by either (i) accepting the deliverables produced by its staff member or (ii) terminating the contract.

Claim:

The Commission should cancel the suspension of the payments to the complainant.

THE INQUIRY

4. On 9 July 2009, the complainant addressed its complaint to the Ombudsman. On 15 September 2009, the Ombudsman opened an inquiry. The Commission sent its opinion to the Ombudsman on 4 December 2009. The opinion was forwarded to the complainant, who submitted its observations on 23 February 2010.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Alleged failure to provide information, as well as alleged breach of contractual obligations and the related claim

Arguments presented to the Ombudsman

5. In its opinion to the Ombudsman, the Commission stated that the issues in dispute in the present complaint were pending before the General Court[1].

The Ombudsman's assessment

6. The Ombudsman notes that, according to information published in the Official Journal, Case X relates to two debit notes. One of these debit notes concerns contract B. This debit note is the same debit note at issue in the present inquiry.

7. The Ombudsman notes that another case before the General Court, Case Y, deals with the Commission's other debit note concerning contract A. This debit note is the same debit note at issue in the present inquiry.

8. The Ombudsman recalls that, according to Article 228 of the Treaty on the Functioning of the European Union (TFEU):

"The Ombudsman shall conduct inquiries for which he finds grounds...except where the alleged facts are or have been the subject of legal proceedings."

Furthermore, Article 2(7) of the Statute of the European Ombudsman stipulates that:

"When the Ombudsman, because of legal proceedings in progress or concluded concerning facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any inquiries he has carried out up to that point shall be filed without further action."

9. Given that there are cases pending before the General Court which concern the same facts as those that have been put forward in the present complaint, the Ombudsman, in accordance with Article 2(7) of the Statute of the European Ombudsman, terminates his consideration of the complaint without taking any further action.

10. In its observations, the complainant pointed out that it wished its complaint to be treated confidentially and that it should therefore be anonymised. The Ombudsman confirms that the complaint is confidential. He would like to specify that this means that there will be no public access to the documents contained in the present complaint file. However, the Commission will receive a copy of the present decision and an anonymised version will be published on the Ombudsman's website.

B. Conclusion

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

The Ombudsman terminates his consideration of this complaint, given that there are cases pending before the General Court which concern the same facts as those that have been put forward in the complaint.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 16 September 2010

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[1] Formerly known as the Court of First Instance.