Strasbourg, 29 May 2008

Dear Mr G.,

On 12 June 2007, acting on behalf of the Spanish environmental association "Asociación de Naturalistas del Sureste" ("ANSE"), you submitted a complaint to the European Ombudsman against the European Commission. The complaint concerned the Commission's refusal of a LIFE-Environment application presented by the Association in accordance with Call for Proposals LIFE 2005-2006 of 21 June 2005.

On 20 August 2007, I informed the President of the Commission of your complaint and asked him to submit an opinion on it by 30 November 2007. On 12 October 2007, I informed you that, for reasons of internal organisation, your complaint had been assigned to a different legal officer. On 22 October 2007, it sent its opinion in English. On 5 November 2007, the Commission sent a translation of the opinion into Spanish, which was forwarded to you on 16 November 2007, with an invitation to make observations, if you so wished. On 5 December 2007, you sent your observations on the Commission's opinion.

By letter dated 27 March 2008, I forwarded your observations to the Commission and announced that my services intended to inspect the Commission’s file on the case. On 15 April 2008, my services carried out the inspection. A copy of that report was forwarded to both you and the Commission on 22 April 2008.

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

THE COMPLAINT

The complaint was submitted on behalf of the Spanish environmental association "Asociación de Naturalistas del Sureste" ("the Association"). The facts of the case according to the complainant are, in summary, as follows:

In line with the instructions contained in the Call for Proposals LIFE 2005-2006(1) dated 21 June 2005, the complainant submitted a LIFE-Environment proposal involving the development of a waste management project(2) to the responsible Spanish authorities, so that they could forward it to the Commission. On 11 October 2005, the Spanish authorities informed the complainant that the application contained a number of errors which had to be corrected. Once the complainant carried out these corrections, the revised application was sent to the Commission by the Spanish authorities.

The Commission registered the application under reference LIFE06 ENV/E/000068, and acknowledged its receipt by letter dated 20 December 2005. The letter informed the complainant that its application would first be reviewed by the responsible services in order to establish whether or not it was eligible, and if so, it would undergo a further evaluation procedure.

By decision of 9 February 2006, the Commission considered that the complainant's application was ineligible, on the grounds that some mandatory documents, namely, the audit report, the profit and loss statement and the yearly settlement of accounts, were missing.

On 14 March 2006, the Spanish representative in the LIFE Committee addressed a letter to the responsible Commission services concerning the complainant's proposal. In his letter, the Spanish representative explained that, having reviewed the information that the Spanish authorities had sent with the project, it appeared that the complainant's application included all the necessary documents. By letter of 14 March 2006, the complainant was informed by the Spanish representative of his contacts with the Commission.

The complainant argued that the project which was sent to the Commission did in fact include all documents required in Call for Proposals LIFE 2005-2006.

The allegation and claim on which the European Ombudsman asked the Commission to submit an opinion were the following:

The Association alleges that the Commission's decision of 9 February 2006 to reject the LIFE-Environment application for a project (reference LIFE06 ENV/E/000068) presented by the Association through the Spanish government in accordance with Call for Proposals LIFE 2005-2006 of 21 June 2005 on the grounds that several documents were missing, is inappropriate, since the application was submitted in accordance with the relevant instruments and all the required documentation was included.

The Association claims that the Commission should review the Association's application and revoke its decision to declare it ineligible.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission described the background to the case. It explained that the complainant had submitted a proposal to obtain financial assistance from the EU environmental programme LIFE 2005-2006. The application was filed under reference LIFE06 ENV/E/000068. As set out in the rules of the programme (LIFE-Environmental Application File for 2006 (part II)), private applicants were required to submit (i) the profit and loss account and the balance of the last financial year for which the accounts had been closed, and (ii) an external audit report produced by an approved auditor. The Commission attached to its opinion a copy of Part II of the Application Guide for the programme LIFE-Environment ("Presenting a LIFE-Environment Project Proposal") dated May 2005.

The Commission further noted that the file sent by the complainant, both in paper and electronic form, did not include either the audit report, or the profit and loss account balance sheet of the last financial year. The complainant was informed on 9 February 2006 that his application was not eligible, as it did not comply with the eligibility criteria. Moreover, on 14 March 2006, the Spanish authorities wrote to the Commission, requesting an explanation as to why the complainant's application had been declared ineligible. The Commission made a third check of the proposal in question which confirmed that the required mandatory annexes had not been included in the complainant's application. It informed the Spanish authorities of its conclusion by letter of 24 March 2006.

The Commission therefore took the view that the complainant had not included with its submission some of the required mandatory annexes and, as a result, the application had been duly rejected under the LIFE eligibility criteria.

The complainant's observations

In his observations of 5 December 2007, the complainant underlined that his application did in fact include all the documents required in the relevant notice of the LIFE programme, in particular his Association's audit report and account balance.

The inspection of the file

After carefully examining the Commission's opinion and the complainant's observations, the Ombudsman concluded that it was appropriate to carry out an inspection of the file. The Ombudsman wrote therefore to the Commission on 27 March 2008, stating that, in accordance with Article 3(2), first indent, of his Statute, he considered it necessary for his services to inspect the file, in particular, the copies of the complainant's submission forwarded to the Commission by the responsible Spanish authorities.

The inspection took place at the Commission’s premises in Brussels on 15 April 2008. The Ombudsman's services reviewed the file, which contained both a hard copy and an electronic version of the complainant's submission. The file contained: (a) declarations of the technical and financial commitments of the parties; and (b) Forms F0 to F 11 (which concerned a budget breakdown). The file did not contain (d) the profit and loss account and the balance of the last financial year for which the accounts had been closed; and (e) an external audit report produced by an approved auditor.

The Ombudsman's services drafted a report to the Ombudsman concerning the inspection of the file, a copy of which was forwarded to both the Commission and the complainant on 22 April 2008.

THE DECISION

1 Commission's decision to reject the complainant's application

1.1 The complaint concerns the application made by the "Asociación de Naturalistas del Sureste" ("the Association") for a project (reference LIFE06 ENV/E/000068). In accordance with Call for Proposals LIFE 2005-2006 of 21 June 2005, the Association presented its application to the Spanish authorities. The submission was forwarded to the Commission by the responsible Spanish authorities. By decision of 9 February 2006, the European Commission rejected the above application on the grounds that several documents were missing. The complainant alleges that the Commission's decision is inappropriate, since the application was submitted in accordance with the relevant instruments and all the required documentation was included.

The complainant claims that the Commission should review the Association's application and revoke its decision to declare it ineligible.

1.2 The Commission argues that the complainant's submission, as forwarded to the Commission by the responsible Spanish authorities, did not include, both in the paper and electronic versions, a number of annexes such as (i) the profit and loss account and the balance of the last financial year for which the accounts had been closed, and (ii) an external audit report produced by an approved auditor. As set out in the rules of the programme (LIFE-Environmental Application File for 2006 (part II)), these documents had to be submitted along with the application.

The Commission notes that, on 9 February 2006, it informed the complainant of the reasons for its decision. The Commission further notes that, in reply to a request from the Spanish authorities dated 14 March 2006, it made a third check of the complainant's proposal which confirmed that the required mandatory annexes had not been included.

1.3 On the basis of the available information, it appears that the complainant's application was submitted in the framework of the LIFE 2005-2006 programme. The general criteria applicable to call for proposals LIFE 2005-2006 were set out in the Official Journal of 21 June 2005(3). Those general criteria provided that proposals had to be written on specific application forms, and be accompanied by a number of mandatory documents. Both the standard application form and the mandatory annexes were described in the Commission website devoted to the LIFE programme(4), which included an Application Guide for the programme LIFE-Environment. Part II of that Guide, dated May 2005, concerned the presentation of project proposals ("Presenting a LIFE-Environment Project Proposal"). Section II.1(1) of Part II of the Guide listed the following documents which had to be annexed to any submission:

"* Declaration(s) of technical and financial commitment by the partner(s);

* Declaration(s) of financial commitment by the co-financer/(s);

For a private organisation (applicant only):

1) the profit and loss account and the balance sheet of the last financial year for which the accounts have been closed

2) where the EU contribution requested exceeds €300 000, an external audit report produced by an approved auditor. That report shall certify the accounts of the applicant for the last financial year available. In case the auditor has a doubt about the applicant's financial viability through the project period, his/her opinion in that respect should be explicitly expressed in the report."

1.4 In the course of his inquiry, the Ombudsman has carefully reviewed all available information. On the basis of that review, the Ombudsman notes that no conclusive evidence has been brought to his attention which might have revealed that the additional documents allegedly forwarded to the Commission by the responsible Spanish authorities in relation to the complainant's application, namely, (i) the profit and loss account and the balance of the last financial year for which the accounts had been closed, and (ii) an external audit report produced by an approved auditor, had in fact been included in the file received by the Commission.

Following the inspection carried out by the Ombudsman’s Secretariat on 15 April 2008 on the Commission's file containing both a hard copy and an electronic version of the complainant's submission, it appears that the file pertaining to the complainant's application did not contain either (i) the profit and loss account and the balance of the last financial year for which the accounts had been closed; or (ii) an external audit report produced by an approved auditor, as required in Section II.1(1) of Part II of the Application Guide for the programme LIFE-Environment ("Presenting a LIFE-Environment Project Proposal") dated May 2005.

On the basis of the available evidence, the Ombudsman cannot conclude that the Commission mishandled the file or that it did not take account of part of the documents annexed to it. The Ombudsman considers therefore that the Commission acted within its legal authority when it decided to exclude the complainant's application on the grounds that some mandatory annexes had not been included therein. The Ombudsman also notes that the Commission informed the complainant of the reasons for its decision by letter dated 9 February 2006.

In view of the above, the Ombudsman has therefore concluded that there appears to be no maladministration as regards this case.

2 Conclusion

On the basis of his inquiries into this case, the Ombudsman finds that there appears to be no maladministration on the part of 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) OJ 2005 C 149, p. 20.

(2) In particular, the project involved the "management of the waste of the seagrass Posidonia oceanica in coastal erosion prevention and in restoration of coastal areas".

(3) OJ 2005 C 149, p. 20.

(4) http://www.europa.eu/comm/environment/life/home.htm