The background to the complaint

1. In 2009, the European Commission's Directorate General ('DG') Employment, Social Affairs and Equal Opportunities published a call for tender for a project ('the Project') entitled "Production of a non-binding modular guide to best practice with a view to improving the application of the Community Directives on the protection of the health and safety of workers in the fisheries sector sailing on vessels less than 15 m length" ('the Guide').

2. The Commission awarded the contract to a private company ('the main contractor'). The complainant worked as a subcontractor of the main contractor for the Project.

3. In August 2010, the complainant wrote to the Commission regarding the implementation of the Project. He complained that the main contractor had failed to pay him for his work in July 2010, in accordance with the contract concluded between himself and the main contractor.

4. The Commission replied to the complainant's letter.

5. In September 2010, the complainant wrote again to the Commission. The Commission did not reply.

6. The complainant turned to the Ombudsman.

The subject matter of the inquiry

7. The Ombudsman opened an inquiry into the following allegation, which the complainant submitted in his original complaint.

Allegation:

The Commission acted negligently by failing properly to supervise the work of the main contractor for the Project.

8. In his observations, the complainant submitted a new allegation and a new claim.

He alleged that the main contractor committed fraud because it failed to make the corresponding payments to the complainant for his work under the Project, although it was paid by the Commission in due time.

In this respect, the complainant pointed out that the main contractor (i) failed to pay him for his work under the Project; (ii) assigned him tasks that differed from those provided in the contract, and (iii) failed to treat him properly.

He claimed that the Ombudsman should investigate the alleged fraud committed by the main contractor.

9. The Ombudsman decided not to include the above allegation and claim in his present inquiry because, as he understood it, the complainant's new allegation was directed against the main contractor, and not against the Commission. The Ombudsman recalls that he is empowered to investigate allegations of maladministration in the activities of the Union institutions, bodies, offices and agencies. No action by any other authority or person may be the subject of a complaint to the Ombudsman. Thus, he considers that the complainant's new allegation falls outside his mandate because it is not directed against an EU institution or body (Article 228 TFEU). As regards the complainant's new claim, he takes the view that the complainant could consider addressing his concerns to the European Anti-Fraud Office (OLAF).

The inquiry

10. On 19 October 2010, the Ombudsman opened an inquiry and asked the Commission to provide an opinion by 31 January 2011. Upon receipt, the Commission's opinion was forwarded to the complainant with an invitation to submit observations. The complainant sent his observations on 1 and 25 February 2011.

The Ombudsman's analysis and conclusions

A. Allegation of negligent behaviour

Arguments presented to the Ombudsman

11. In support of his allegation, the complainant argued that the Commission failed to reply to his e-mail of 7 September 2010, which set out detailed criticisms of the main contractor. The complainant pointed out that both the main contractor and the responsible Commission services had failed to respect the Lisbon Treaty ('the Treaty'). In this respect, he argued that the Treaty recommends that all EU policies should promote health, whereas the Project observes only those Directives which concern health and safety in fishing. According to the complainant, the Commission failed properly to monitor the work done by the main contractor. The complainant also expressed his concerns as regards the main contractor's "lack of professional competence" in the area concerned. He stated that the Project's expected use in practice was not documented in any way.

12. In its opinion, the Commission stated that it replied on 10 November 2010 to the concerns which the complainant put forward in his e-mail of 7 September 2010.

13. The Commission further explained that its main objectives in the area under discussion are to prepare, present, and negotiate EU action programmes and proposals for legislation on specific and high-risk activities at work, and to ensure that governments and social partners support its initiatives. The Commission stated that this is done through the Advisory Committee on Safety and Health at Work ('the ACSH')[1].

14. The ACSH established a number of working parties (currently 12) to deal with specific technical issues, and organises workshops and seminars on specific topics.

15. In 2007, the Commission published a document entitled "Improving quality and productivity at work: Community strategy 2007-2012 on health and safety at work". The aim of that document was to achieve a sustained reduction in the number of occupational accidents and diseases in the EU by implementing a series of actions at both European and national level. It aimed to introduce these actions in a number of ways. For example, by (i) improving and simplifying existing legislation; (ii) using non-binding instruments to enhance the implementation of legislation in practice; (iii) encouraging the exchange of good practices; (iv) arranging awareness-raising campaigns, and (v) providing better information and training.

16. To this end, in November 2007, the ACSH created a Working Group ('the WG') which was responsible for monitoring the preparation of a non-binding guide for the protection of workers in the fisheries sector, sailing on vessels less than 15m in length. The WG advised the Commission on the specific technical aspects which needed to be included in the Guide.

17. In 2008, the Commission published a call for tender for the production of the Guide. Given that no offers were received, in 2009 the Commission republished the call for tender. On 11 December 2009, the contract was awarded to a private company, in this case, the main contractor.

18. The Commission explained how the Project is supervised. In this respect, a Monitoring Committee (composed of members of the WG) and the Commission’s services jointly supervise the main contractor's work. At the end of the contract, the WG will prepare an opinion on the finalised Guide, which will be presented to the plenary of the ACSH. If the ACHS issues a favourable opinion on the Guide, it is considered to be finalised. Once finalised, the Commission services arrange for the document to be published and disseminated in all the official languages. The finalised Guide will then become available, free of charge, to end users.

19. The Commission emphasized that its contract with the main contractor stipulated the requirements with which the latter had to comply, such as specific deadlines for the performance of the various tasks. In this respect, during the first meeting with the main contractor, the Commission submitted a spreadsheet. The spreadsheet contained a summary of the contract schedule, a definition of milestone deliverables, and indicated when meetings were to be held. The main contractor and the Monitoring Committee approved and accepted the spreadsheet. In the Commission’s view, this constitutes clear evidence of a robust management overview of the Project.

20. The Commission further stated that, in addition to the first meeting, by December 2010 three meetings had been held to enable the Monitoring Committee to comment on the Project's progress. The Commission pointed out that the work of the Monitoring Committee is vital in the development of good practice guides, given that the members of the Monitoring Committee have an in-depth technical knowledge of the subject concerned. This enables the Commission's services to maximize the quality of a document produced by a contractor and to ensure the effective supervision and management of contract deliverables, since its services can use the Monitoring Committee's input.

21. The Commission further outlined that the Monitoring Committee's comments had, so far, been very positive with regard to the deliverables presented by the main contractor. In this respect, it enclosed with its opinion copies of the draft documents produced by the main contractor in drawing up the Guide.

22. As regards the issue of health promotion, the Commission noted that the list of issues [for consideration] was compiled in a fully transparent manner by the members of the WG, who are acknowledged experts in the field. In the Commission’s view, the issue of the health promotion of fishermen was adequately dealt with in the tender specifications[2], as well as in the draft Guide, which the main contractor submitted in November 2009. The Commission took the view that, contrary to the complainant’s opinion, these sections of the draft Guide had a wider scope than Directives 92/29/EEC and 93/103/EC. The Commission added that one of the Guide's aims was that it could be used for vessels less than 15m in length, which are not covered by Directive 93/103/EC.

23. As regards the complainant's argument that there is no documentation to show how the Project can be used in practice, the Commission pointed out that it intends to translate the Guide into all official languages for further dissemination.

24. The Commission concluded that (i) it had put in place all the necessary supervision arrangements; (ii) the main contractor's work was of the expected quality; and (iii) the work was carried out in exact compliance with the contract timeline. Thus, the complainant’s claim submitted in his e-mail of 7 September 2010 that the contract should be cancelled cannot be sustained.

25. In his observations, the complainant did not submit any comments regarding the implementation of the Project or the Commission's supervision of the work carried out by the main contractor.

The Ombudsman's assessment

26. The Ombudsman first notes that the Commission's opinion on the present complaint provides a detailed and thorough explanation of the work carried out by the main contractor in order to implement the Project. It also replied to all the points raised by the complainant in this respect. It therefore duly supplemented the information it provided in its reply to the complainant dated 10 November 2010. The Ombudsman considers that the Commission provided reasonable and comprehensive explanations.

27. Moreover, the Commission put forward arguments to show that it adequately supervised the implementation of the Project by the main contractor. He also notes that, in his observations, the complainant did not submit any further comment regarding the implementation of the Project, or the Commission's supervision of the work carried out by the main contractor.

28. In these circumstances, the Ombudsman takes the view that the Commission adequately replied to the complainant’s concerns raised in his complaint. Thus, he considers that there was no instance of maladministration in relation to the complainant’s allegation and closes the case.

B. Conclusions

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

There has been no maladministration.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 17 June 2011

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[1] The ACSH is a tripartite body set up in 2003 by a Council Decision (Council Decision of 22 July 2003 setting up an Advisory Committee on Safety and Health at Work OJC218. 13.9.2003, p. 1-4) It comprises representatives of government, trade unions and employers' organisations for each EU Member State. The ACSH assists the Commission in the preparation, implementation and evaluation of activities in the fields of safety and health at work. In this respect, it provides the Commission with opinions on EU initiatives in the area of occupational safety and health.

[2] According to the Tender specifications: "The draft guide should pay special attention to: (4) Risks related to the consumption of alcohol, drugs as well as fatigue on board".