Background to the complaint

1. The European Union Delegation to Egypt (‘the Delegation’) signed a contract with a consulting company (‘the contractor’) for an EU-funded project^[1]. In April 2017, the contractor recruited the complainant to work on the project as a ‘Senior Advisor on Monitoring and Evaluation’.

2. By letter of 2 April 2019, the contractor informed the complainant of its decision to terminate her contract, on the request of the Delegation. The Delegation had expressed its dissatisfaction with the complainant’s performance, in particular her failure to complete aspects of her work on time. The termination letter stated that the contractor did not have the power to oppose this decision by the Delegation.

3. Dissatisfied with the contractor’s explanation, the complainant approached the Delegation on several occasions to verify the reason behind the termination of her contract and to request its assistance. She asked the Delegation for clarifications and a copy of all correspondence it had had with the contractor concerning her performance.

4. In its replies, the Delegation confirmed that it had asked the contractor to terminate the contract for the complainant’s work on the project. The Delegation emphasised that the complainant did not have a contractual relationship with it^[2], and that any further enquiries about the matter should be addressed directly to the contractor.

5. Dissatisfied with the Delegation’s response, the complainant turned to the Ombudsman in November 2019.

The inquiry

6. In January 2020, the Ombudsman opened an inquiry into how the Delegation^[3] handled the complainant’s dismissal and request for assistance.

7. The Ombudsman asked the Delegation to clarify the reasons why it was dissatisfied with the complainant’s work, and to provide detailed information on how it dealt with the complainant’s request for assistance.

8. In March and April 2020, the Ombudsman received the Delegation‘s reply and the complainant’s observations on that reply. After a careful analysis of the information provided, the Ombudsman’s inquiry team asked the Delegation to provide additional clarifications as to why the external contractor had terminated the complainant’s contract and how the Delegation had made sure that the complainant’s right to be heard had been respected, that is, that she had been given an opportunity to make her case before her contract was terminated.

9. In July 2020, the European Commission provided the Delegation’s reply. The complainant made comments on the reply in September 2020.

Arguments presented to the Ombudsman

10. The complainant claimed that, despite her efforts to solve the issue, the contractor was not cooperative. The Delegation’s failure to assist the complainant meant that she could not gather reliable evidence to verify the facts set out in the termination letter. The complainant also contended that the reasons put forward in the termination letter did not correspond to the feedback she had received from the Delegation.

11. The complainant said that it was important for her to establish the grounds for her dismissal since, according to her contract, she had different rights depending on the basis for her dismissal (for example, regarding the notice period).

12. In its replies, the Delegation clarified that it had requested the termination of the complainant’s contract for two reasons: (i) its dissatisfaction with the quality and timeliness of the complainant’s work; and (ii) its decision to transform the post she occupied to one based on a short-term local contract.

13. The Delegation had also asked the contractor to cooperate with the complainant and reply to any further queries she may still have regarding her dismissal.

14. In context of the Ombudsman’s inquiry, the Delegation clarified that the complainant’s performance had played a role in its decision to transform the position. It also provided some concrete examples of the reasons why it was not satisfied with the complainant’s work.

15. The Delegation also took the view that it had taken all the appropriate and reasonable steps to inform the contractor of its dissatisfaction with the complainant’s work. The Delegation considered that the contractor had had sufficient time and opportunity to inform the complainant.

16. The complainant disagreed with the Delegation’s assessment of her performance. She argued that the Delegation had based its assessment on one specific event and failed to substantiate its allegations with sufficient proof. She also claimed that she had “never [been] given a chance by the EU to be heard” but received only details of the exchanges between the Delegation and the contractor.

The Ombudsman's assessment

17. The Delegation was not legally obliged to directly grant the complainant a hearing or provide her with the reasons for its request to terminate her contract. However, the Ombudsman has consistently held that, where EU institutions seek the dismissal of a sub-contracted individual, the individual should be heard^[4] before they are dismissed^[5]. Institutions are also expected to provide reasons for their actions, in this case for the request to terminate a contract.

18. At the same time, EU Delegations enjoy broad discretion in assessing the performance of experts working on EU-funded projects. To this end, the Ombudsman’s assessment focused on whether the Delegation had put forward reasonable grounds for requesting the termination of the complainant’s contract and that there was no manifest error.

19. In the course of the inquiry, the Delegation provided clear and detailed accounts of its view on the quality of the work carried out by the complainant. The Delegation substantiated its position with concrete examples of how it considered that the complainant had failed to perform the tasks, duties and responsibilities for which she had been hired. Although the Ombudsman appreciates that the complainant does not agree with the Delegation’s position, the complainant has not put forward any argument or evidence to suggest a manifest error by the Delegation.

20. Nevertheless, the Ombudsman considers that the Delegation failed to demonstrate how it took “all appropriate and reasonable steps to inform [the contractor] about [its] dissatisfaction regarding [the complainant’s] performance” before the complainant was dismissed. Consequently, the Ombudsman cannot but draw the conclusion that the Delegation did not ensure that she had been heard by the contractor. This is regrettable.

21. The Ombudsman urges the Commission and bodies like EU Delegations, which are responsible for the management of EU-funded projects, to respect the commitment to grant individuals in similar situations a fair hearing, particularly in light of the revised rules applicable to such contracts^[6]. However, given that, in the course of this inquiry, the Delegation informed the complainant of the reasons why it requested her dismissal, no further inquiries are justified into this complaint.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

It is regrettable that the Delegation did not reassure itself that the complainant had been heard before her contract was terminated. For the reasons set out above, however, no further inquiries are justified into this complaint.

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

 

Emily O'Reilly
European Ombudsman

Strasbourg, 12/03/2021

 

[1] EuropeAid/138018/DG/SER/EG Support to implementation of strategies to foster MSME development in Egypt”, available at: https://eeas.europa.eu/delegations/egypt_en/43122/Support%20to%20implementation%20of%20strategies%20to%20foster%20Micro,%20Small%20and%20Medium%20Enterprises%20(MiSMESIS)%20development%20in%20Egypt.

[2] See Article 16.6 of the General Conditions for Service Contracts for External Actions financed by the EU (the General Conditions), 2013 version (available at: http://ec.europa.eu/europeaid/prag/previousVersions.do): “No recruitment of an expert by the Contractor can create contractual relations between the expert and the Contracting Authority”.

[3] The inquiry was formally against the European Commission, which was responsible for the funding of the project. However, the inquiry focused on the Delegation’s actions.

[4] In keeping with principle of fairness, set out in the European Code of Good Administrative Behaviour: https://www.ombudsman.europa.eu/en/publication/en/3510.

[5] Decision of the European Ombudsman closing the inquiry into complaint 1515/2012/RT against the European Commission, paragraph 62, available at: https://www.ombudsman.europa.eu/en/decision/en/51853; Decision of the European Ombudsman closing the inquiry into complaint 1854/2016/JAP, paragraphs 15 to 16, available at: https://www.ombudsman.europa.eu/en/decision/en/89508; Decision of the European Ombudsman closing the inquiry into complaint 699/2019/AMF, paragraph 13, available at: https://www.ombudsman.europa.eu/en/decision/en/126131.

[6] See point 17 of Decision of the European Ombudsman in case 699/2019/AMF, referred to in the previous footnote.