Dear Mr X.,

On 17 June 2002, I received a complaint (1141/2002/GG) sent by you that was directed at (1) the European Agency for Reconstruction and (2) the ‘EU Pillar of the UN Mission in Kosovo’. On 17 and 18 June 2002, you sent me a number of documents in relation to this complaint. The complaint against the European Agency for Reconstruction was sent to this institution for its comments on 19 June 2002. On the same day, I informed you that the identity of the second complainee had not been clarified sufficiently. In an e-mail dated 27 June 2002, you informed me that your complaint concerning the ‘EU Pillar‘ was directed at the European Commission. In order to simplify matters, I attributed the above-mentioned new reference to this complaint.

On 8 July 2002, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 8 October 2002 and I forwarded it to you on 16 October 2002 with an invitation to make observations, if you so wished, by 30 November 2002 at the latest. No observations appear to have been received from you.

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

THE COMPLAINT

According to the complaint, the complainant worked as a consultant in Kosovo, first for the European Agency for Reconstruction (on the basis of two contracts) and then for the ‘EU Pillar of the UN Mission in Kosovo’.

The complainant alleged that the ‘EU Pillar’ had failed to provide him with a contract and to pay the invoice he had sent to it. This invoice of 7 May 2002 was addressed to Mr Andy Bearpark, Special Representative of the Secretary-General of the UN Mission in Kosovo and amounted to 55 936.16 €.

A first complaint (1010/2002/GG) was rejected on the grounds that the identity of the complainee had not been clarified sufficiently (Article 2 (3) of the Ombudsman’s Statute).

The complainant then submitted a new complaint (1141/2002/GG) directed at both the European Agency for Reconstruction and the ‘EU Pillar’, submitting a number of documents in two faxes of 17 June (documents relating to the Agency) and 18 June 2002 (documents relating to the ‘EU Pillar’). The complaint was forwarded to the Agency for its comments. In so far as the ‘EU Pillar’ was concerned, the complainant was informed that the identity of the complainee had still not been clarified sufficiently.

The complainant subsequently informed the Ombudsman that his complaint regarding the ‘EU Pillar’ was directed at the Commission. In order to avoid complications, this letter was registered as a new complaint under the above-mentioned reference.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The ‘EU Pillar’ is an integral part of the United Nations Interim Administration mission in Kosovo (UNMIK), which was established by United Nations Security Council Resolution 1244 of 10 June 1999. UNMIK is headed by a Special Representative of the Secretary-General of the UN and consists of four components ("pillars") led by different expert international entities.

The four pillars are:

- Pillar I: Humanitarian Affairs, under the responsibility of the UN High Commissioner for Refugees (UNHCR). Pillar I was phased out at the end of June 2000 and is now replaced by an operation responsible for Justice and Police led by the United Nations;

- Pillar II: Civil Administration, led by the United Nations;

- Pillar III: Democratisation and institution building, led by the OSCE;

- Pillar IV: Economic Reconstruction, recovery and development, led by the EU. Pillar IV is known as the ‘EU Pillar’.

The EU Pillar, led by Mr A. Bearpark, Deputy Special Representative of the Secretary-General of the UN, is entrusted with providing the legal, institutional and policy framework for economic reconstruction, recovery and development of Kosovo.

The Deputy Special Representative of the Secretary-General of the UN is responsible for implementing the proposed activities of the EU Pillar through his administration of the Pillar’s operational budget which is funded by the Community.

Council Regulation (EC) no. 1080/2000 stipulates in Article 1 that the Community shall contribute financially to the establishment and operation of the UNMIK. In accordance with this, the Community’s contribution is to finance the operating costs of the EU Pillar, including the salary costs of local and international staff.

The Grant Agreement between the European Commission and the EU Pillar of UNMIK foresees the EU contribution and its implementation and control mechanisms. Grant agreements have been signed every year since 2000.

According to Article 1 (3) of the Special Conditions of these Agreements, "[t]he Organisation accepts the grant and undertakes to carry out the Operation under its own responsibility. Besides, Article 1 (1) of the General Conditions applicable to these Agreements stipulates that "[t]he Community recognises no contractual link between itself and the Organisation’s partner(s) or between itself and a subcontractor."

Moreover, Article 3 (2) of the General Conditions states that "the Organisation shall assume sole liability towards third parties" and that "[t]he Organisation shall discharge the Community of all liability associated with any claim or action brought as a result of an infringement by the Organisation or the Organisation’s employees or individuals for whom those employees are responsible of rules and regulations, or as a result of violation of a third party’s rights."

Given the above, the Commission took the view that the contractual relationship between the complainant and the EU Pillar of UNMIK did not involve its services which contribute to the running costs of one of the four components of the UN Interim Administration in Kosovo, but are not responsible for implementing the EU Pillar’s activities.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 EU Pillar’s alleged failure to provide contract and to pay invoice

1.1 The complainant, a consultant, alleges that the ‘EU Pillar’ failed to provide him with a contract and to pay the invoice he had sent to it. He suggests that the European Commission should be held responsible for the EU Pillar’s behaviour.

1.2 The Commission explains that the ‘EU Pillar’, led by Mr A. Bearpark, Deputy Special Representative of the Secretary-General of the UN, is an integral part of the United Nations Interim Administration mission in Kosovo (UNMIK), which was established by United Nations Security Council Resolution 1244 of 10 June 1999. It adds that the Deputy Special Representative of the Secretary-General of the UN is responsible for implementing the proposed activities of the EU Pillar through his administration of the Pillar’s operational budget which is funded by the Community. The Commission points at the Grant Agreements between the European Commission and the EU Pillar of UNMIK according to which the EU Pillar shall assume sole liability towards third parties whereas the EU does not recognise any contractual link between itself and the EU Pillar’s partners and subcontractors. On the basis of the above, the Commission takes the view that the contractual relationship between the complainant and the EU Pillar of UNMIK does not involve its services that are not responsible for implementing the EU Pillar’s activities.

1.3 The Ombudsman considers that in the light of the explanations provided by the Commission, the latter’s position appears to be reasonable.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN