# Decision of the European Ombudsman on complaint 1619/2003/JMA against the European Commission
- Author: European Ombudsman
- Date: null
- [URL](https://www.ombudsman.europa.eu/en/decision/en/1973)
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Strasbourg, 2 June 2004   

Dear Ms H.,

On 20 August 2003, you lodged a complaint with the European Ombudsman
against the European Commission on behalf of the DIK Association. Your
complaint concerns the Commission's decision to request the reimbursement
of part of the funds granted to the DIK Association for the implementation
of a Leonardo da Vinci project (S 95/2/179/III.2.a).

On 27 October 2003, I forwarded the complaint to the President of the
Commission. On 29 January 2004, I received the Commission's opinion, which
I forwarded to you with an invitation to submit your observations. No
observations appear to have been received from you.

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

THE COMPLAINT
-------------

According to the complainant, the facts of the case are, in summary,
as follows:

The complainant is the President of the DIK Association, a small professional
organisation and trade union for, among others, librarians, archivists
and museum professionals. Her association was responsible for the development
of a project financed by the European Commission through the Leonardo
da Vinci programme (ref.: S95/2/179/III.2.a).

In 2001, the DIK Association received an invoice from the Commission,
requesting the payment of EUR 50 000, without any further explanation.
After several attempts to find the official responsible for the project,
including a visit to the Commission, the complainant was informed of the
institution's concerns about the project. They involved a number of irregularities
such as the lack of signatures from some of the partners, the need for
the association to cover its own costs, the excessive amount charged by
one of the partners as travel expenses, and the length of time for which
a partner had claimed expenses. The complainant explained that this state
of affairs had come as a result of the fact that the draft report on the
project initially prepared by the project leaders, was not accepted by
the participants, and that an external museum professional had to take
charge of the final drafting of the report.

In view of the concerns raised by the Commission, the complainant made
a number of corrections to the report on the project. It appears that,
as a result of these changes, the Commission reconsidered some of its
objections, and reduced its request for reimbursement to EUR 20 911.09.
The complainant pointed out, however, that the project had been carried
out successfully, and moreover, that the DIK Association's report on the
project had been completed and published. She agreed that the implementation
of the project could have partially deviated from the specifications set
out in the contract, although she contested the amount being requested
by the Commission.

After several exchanges and personal meetings with the responsible officials,
the complainant proceeded to reimburse the requested amount of EUR 20
911.09. She expressed, however, her dissatisfaction with the Commission's
decision, and noted that hers is a small organisation of, among others,
librarians, archivists and museum professionals. The amount of money requested
could not be covered by the association's budget, and therefore caused
havoc to its members.

The complainant stressed that, although the DIK Association was unaware
of some of the rules governing the project, and that their implementation
cost much time and money, it had carried out the project according to
the contract.

In summary, the complainant alleges in his complaint to the Ombudsman
that the Commission did not handle the project properly, in particular
as regards its request for the reimbursement of part of the funding, and
failed to inform the DIK Association of some of the requirements of the
contract.

THE INQUIRY
-----------

**The Commission's opinion**   

In its opinion, the Commission explained that the complainant worked
as a contractor in a project funded through the Leonardo da Vinci programme
(contract S.95.2.179.III.2.a; No 3854). The contract ran from 1 December
1995 to 30 January 1997.

The project had been the subject of numerous contacts between the so-called
Technical Assistance Office (TAO) on behalf of the Commission, and the
contractor, in order to solve the numerous problems arising from the evaluation
of the progress and final reports. The Commission noted that its services
had informed the complainant, both in writing and orally, of these problems.

The Commission pointed out that relations with the contractor were governed
by a contract, to which an administrative and financial handbook was annexed.
This handbook set out the eligibility criteria for project expenditure.
The institution stressed that the contractor had therefore been informed
all along of her contractual obligations.

The institution noted that the reimbursement order, which the complainant
contested, was issued after its services completed the processing of her
second version of the final report, submitted on 6 June 1999. The first
final report had been received by the TAO on 19 February 1998. It had
not been approved because the projected output had not been completed,
thus making an evaluation impossible.

Due to the problems generated by the closure of the TAO and the sealing
of its files by the Belgian judicial authorities, the second version of
the final report was not processed by the Commission until the year 2000.
On the basis of its evaluation, the Commission concluded that the report
was incomplete, and its services, therefore, requested additional information
from the contractor on 17 May and 18 August 2000.

In view of her failure to reply to these requests, the Commission decided
to close the file on 12 December 2000, and to declare ineligible certain
expenditure. In its letter to the complainant dated 12 December 2000,
the Commission justified its position on the following grounds: only expenditure
incurred during the contract period (1 December 1995-30 November 1997)
could be taken into account; the progress reports and the final reports
had not been signed by the same person who signed the contract; there
were inconsistencies in the tables and absence of signature on some of
them; the second version of the final report could not be taken into account
because it was submitted later than 10 months after the end of the contract
period; the complainant had failed to reply to the Commission's requests
for information; and contracts with partners had not been provided. The
file was therefore closed and a debit note, along with explanatory financial
annexes, was sent to the contractor on 31 May 2001.

The DIK Association complained to the Commission on 21 June 2001. In
view of the circumstances surrounding the closing of the TAO, the Commission
assumed that the complainant had never received its request for additional
information dated 17 May 2000, and therefore decided to re-open the file.
Following the complainant's submissions in September 2001 of the additional
information requested, and her letter of 15 October 2001, the Commission
modified its evaluation and accepted part of the expenditure which had
initially been declared ineligible. On the basis of this new evaluation,
the Commission estimated the remaining ineligible costs at EUR 20 911.09
and submitted a proposal to that effect to the contractor.

By letter of 23 October 2001, the contractor formally accepted this proposal.
She paid a sum of EUR 20 911.09 owed to the Commission in respect of the
project on 13 August 2003. In the Commission's view, this payment confirmed
the contractor's agreement with its final decision.
**The complainant's observations**   

The Ombudsman has not received any observations from the complainant.

THE DECISION
------------

**1 Handling of the project by the Commission**   

1.1 The complaint concerns the Commission's decision to request the reimbursement
of part of the funds granted to the DIK Association for the implementation
of a Leonardo da Vinci project. The complainant alleges that the Commission
did not handle the project properly, in particular as regards its request
for the reimbursement of part of the funding, and failed to inform the
DIK Association of some of the contractual requirements. According to
the complainant, although the DIK Association was unaware of some of the
rules governing the project and their implementation cost much time and
money, it had carried out the project according to the contract.

1.2 The Commission argues that its relations with the contractor were
governed by a contract, to which an administrative and financial handbook
was annexed. This handbook set out the eligibility criteria for project
expenditure. The institution stressed that the contractor had therefore
been informed all along of her contractual obligations.

As regards its handling of the contract, the Commission argues that
it requested the reimbursement of certain expenses, having concluded that
the final report sent by the complainant was incomplete.

Upon receipt of additional information sent by the complainant, the Commission
accepted part of the expenditure initially declared ineligible. On the
basis of this new evaluation, the Commission estimated the remaining ineligible
costs at EUR 20 911.09 and submitted a proposal to that effect to the
contractor, who formally accepted the proposal on 23 October 2001.

1.3 According to Article 195 of the EC Treaty, the European Ombudsman
is empowered to receive complaints "concerning instances of maladministration
in the activities of the Community institutions or bodies". The Ombudsman
considers that maladministration occurs when a public body fails to act
in accordance with a rule or principle which is binding upon it[(1)](#(1)){#Footnote1}.
Maladministration may thus also be found when the fulfilment of obligations
arising from contracts concluded by the institutions or bodies of the
Communities is concerned.

1.4 However, the Ombudsman considers that the scope of the review that
he can carry out in such cases is necessarily limited. The Ombudsman is
of the view that he should not seek to determine whether there has been
a breach of contract by either party, if the matter is in dispute. This
question could be dealt with effectively only by a court of competent
jurisdiction, which would have the possibility to hear the arguments of
the parties concerning the relevant national law and to evaluate conflicting
evidence on any disputed issues of fact.

1.5 The Ombudsman therefore takes the view that in cases concerning contractual
disputes it is justified to limit his inquiry to examining whether the
Community institution or body has provided him with a coherent and reasonable
account of the legal basis for its actions and why it believes that its
view of the contractual position is justified. If that is the case, the
Ombudsman will conclude that his inquiry has not revealed an instance
of maladministration.

This conclusion will not affect the right of the parties to have their
contractual dispute examined and authoritatively settled by a court of
competent jurisdiction.

1.6 On the basis of the evidence submitted in the course of the inquiry,
it appears that the contract signed between the Commission and the complainant's
association (S.95.2.179.III.2.a; No 3854) contained a number of annexes,
including an administrative and financial handbook of the project. This
document set out in detail the eligibility criteria for project expenditure.
As the criteria defining the expenses to be paid for by the Commission
constituted an integral part of the contract signed and agreed to by the
complainant, the Ombudsman takes the view that the Commission furnished
the complainant with sufficient information on the rights and obligations
deriving from the contract.

1.7 As regards the Commission's handling of the contract, in particular
the decision to request the reimbursement of part of its funding, it appears
from the available evidence that the Commission justified its requests
for the reimbursement of part of the assistance, on the grounds that some
of the expenses incurred by the complainant were ineligible. The Ombudsman
is mindful of the fact that the Commission has justified its position
by referring to several contractual requirements which do not appear to
have been contested by the complainant, such as, among others, that only
expenditure incurred during the contract period (1 December 1995-30 November
1997) could be taken into account; that the progress and final reports
did not appear to have been signed by the same person who signed the original
contract; or that there were inconsistencies in the tables and absence
of signature on some of them.

1.8 On the basis of the information supplied by the complainant and the
Commission during the inquiry, the Ombudsman considers that the position
taken by the Commission in relation to this issue does not appear to be
unreasonable and that the Commission appears to have informed the complainant
adequately of the reasons for its position.

In these circumstances, the Ombudsman concludes that the inquiry has
not revealed an instance of maladministration.
**2 Conclusion**   

On the basis of the Ombudsman's inquiries into this complaint, there
appears to have been no maladministration by 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

*** ** * ** ***

[(1)](#Footnote1){#(1)} See the European Ombudsman's
Annual Report 1997, p. 22.