Strasbourg, 16 July 2007

Dear Mr X,

On 9 February 2006, you submitted a complaint to the European Ombudsman on behalf of Y Ltd against the European Commission, concerning the submission procedure for proposals provided for in a specific call for proposals under the Sixth Framework Programme(1) ("FP6").

On 28 April 2006, I forwarded your complaint to the President of the Commission.

The Commission sent its opinion on 25 July 2006. I forwarded it to you with an invitation to make observations. No observations were received from you.

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

THE COMPLAINT

The complaint was submitted on behalf of Y Ltd ("the complainant"), who wished to participate in the final FP6 Call for proposals dedicated to small and medium-sized enterprises ("SMEs") FP6-2005-LIFESCIHEALTH-7(2) ("Call for proposals"). The Call for proposals provided that the proposals must have comprised Part A and Part B. The proposals could be prepared either off-line or on-line, and had to be submitted on-line. The deadline for submission of proposals was 9 November 2005.

According to the complainant, it used the Electronic Proposal Submission System tool ("EPSS")(3) to submit its proposal but it experienced a problem when trying to add a required document. The problem experienced during the submission of the proposal and the steps which it had taken were, according to the complainant, the following:

The complainant had prepared the proposal off-line using the EPSS tool. On 9 November 2005 it had already uploaded Part A of the proposal when it tried to add Part B to the proposal. However, the EPSS would not accept the file and an error message kept appearing, explaining that "the pdf name should not have (, ), - etc in the title". The complainant stated that "after three attempts at renaming the file and removing all brackets, dates, dashes, etc" it telephoned the EPSS Help Desk at 15:50 (UK time) and was told that the space between "Part" and "B" had to be removed. After it was re-named, the file could then be successfully added to the proposal package. This operation took a further five minutes to validate and send. The complainant tried to upload the complete proposal but nothing happened and the page went back to the log-in. After re-logging, the complainant tried again to upload the proposal but nothing happened until a message, stating that the call was closed, appeared. The complainant immediately contacted the EPSS Help Desk and explained the problem. The person at the Help Desk asked the complainant to send the proposal, together with an explanation of problems encountered, by e-mail to the Help Desk so that it could be forwarded to the Commission. The complainant did so by e-mail on the same day describing the error message received and the technical problem, namely, that the website timed out and would not reload. It asked the EPSS Help Desk to submit the enclosed proposal to the Commission as promised in a telephone conversation prior to the e-mail.

Ms K. of the EPSS Help Desk responded to the complainant's e-mail on 11 November 2005 informing it that the incident had been recorded and that all the relevant information would be transferred to the Commission for review. Before doing so, Ms K. asked the complainant to clarify what exactly happened during the unsuccessful submission.

By e-mail of 14 November 2005, the complainant described the details of its proposal submission attempts. By e-mail of the same day, Ms K. explained to the complainant that the fact that the filename of Part B could not contain spaces was mentioned in a relevant guide and that the error message had explained which characters were not allowed. She stated that the issue would be transferred to the Commission.

By letter of 13 December 2005, the Commission informed the complainant that the Eligibility Committee came to the conclusion that its proposal was to be considered as not received. The Committee based its conclusion on (i) the correspondence regarding the difficulties with the electronic submission; (ii) the EPSS report about the activity on the complainant's account on the final day for the submission of proposals; (iii) the fact that the EPSS was fully operational on 9 November 2005; and (iv) the information made available by the Commission on the preparation and submission of proposals. After having analysed the complainant's case, the Committee concluded that the reason why the proposal could not be submitted was not a failure or deficiency for which the Commission could be held responsible. The Committee stated that it fully understood the complainant's dissatisfaction but that, in light of the aforementioned and the absolute requisite of equal treatment of all proposers, it was not able to accommodate the complainant's request to admit its proposal.

On 15 December 2005, the complainant wrote to Mr F. of the Commission's services concerning the aforementioned decision of the Eligibility Committee. The complainant wished to make a formal appeal and asked for advice on how to do that. The specific aspect on which the complainant wished to base the appeal was the information made available by the Commission on the preparation and submission of proposals (point (iv) above) since the need to remove the space in the title of Part B had allegedly not appeared in the error message when saving the submission. The complainant also requested the EPSS report on the activity of its account on the final day of submission since this should show an initial log-in one hour ahead of the Call closure deadline. Finally, the complainant considered it important to provide feedback on this discouraging development, which affected not only the complainant but had implications for other life science SMEs in which the complainant's Board members and consortium members were involved. The complainant stated that there was considerable scepticism within many companies about the time and resources required to engage in this process. There were therefore considerable internal barriers to overcome in order to gain internal approval to make such proposals in the first place. Technical difficulties during submission seemed an inappropriate criterion to dismiss outright the scientific content and societal benefit of a project. The complainant asked to be informed if it was in any way possible to improve the FP6 application process in future.

On 23 December 2005, Mr F. informed the complainant that, in cases where a project proposer was not satisfied with the conclusions of the Eligibility Committee, a complaint could be submitted either to the Secretariat-General of the Commission for breach of the Code of Good Administration in relations with the public; the European Ombudsman for "maladministration"; or the Court of Justice of the European Communities. He went briefly to describe each possibility.

In his complaint to the Ombudsman, the complainant alleged that the Commission had wrongly rejected its proposal under the Call for proposals. The complainant argued, in particular, that (i) the need to remove spacing in the title of the proposal file, which was the reason for the delay in submitting the proposal, had not appeared in the error message when saving the file in EPSS, and (ii) the Commission should not have been so rigid in deciding on the admissibility of proposals when the proposer had experienced genuine problems in uploading files such as the ones here concerned.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

Background

The Call for proposals was launched on 8 July 2005 and closed on 9 November 2005 at 17.00 ( Brussels local time). In the Guide for Proposers for Specific Targeted Research Projects FP6-2005-LifeSciHealth-7(4) ("Guide for Proposers") it was indicated on the first page that the proposals could only be submitted electronically ("Electronic submission only").

Potential proposers were advised to prepare the proposals on-line. Alternatively, proposals could be prepared off-line using special software to be downloaded and installed on their computers. The complainant prepared its proposal off-line via the Electronic Proposal Tool of EPSS, an internet-based application providing a secure work space for a consortium to prepare and submit a proposal jointly, which could be accessed on-line(5). According to paragraph 4 of Point 5 of the Call for proposals, the proposals must have comprised Part A (the forms), and Part B (the content) which had to be submitted in PDF format. On page 15 of the detailed Offline Electronic Proposal Tool User Guide ("EPT User Guide")(6), a template was provided to assist in the creation and uploading of Part B. On the same page, it was also stated that the "Part B filename should not contain any special characters or spaces." Once the proposal had been prepared with the EPT and in accordance with the instructions of the EPT User Guide, the user had to return to the EPSS to submit the proposal.

According to the EPSS log history(7), the complainant started to create Part A of its proposal on 7 November 2005. On 8 November 2005, there was no register of any attempt by the complainant to connect to the EPSS. On 9 November 2005 at 16:21:52 Brussels time, the complainant logged in but did not succeed to package the proposal file and got successive error messages explaining what the problem was. The complainant telephoned the EPSS Help Desk at 16:50, when it was informed that the space between "Part" and "B" should be removed. After the complainant had renamed Part B, it added it to the proposal package. However, when it tried to upload the file, the connection timed-out. The complainant logged in again at 17:09:06 Brussels time, at a time, that is, when the Call had been closed and it was no longer possible to upload the proposal. The complainant contacted the EPSS Help Desk again and was asked to send the proposal by e-mail. The e-mail, containing the proposal package with the timestamp 16:08 UK time, was sent at 17:16 Brussels time. On 11 November 2005, the EPSS Help Desk sent an e-mail to the complainant informing it that the incident had been recorded and that all relevant information would be transferred to the Commission for review. The complainant was also informed that the EPSS Help Desk did not follow up the cases raised with the Commission. At the same time, the complainant was asked to provide more detailed information on what had happened during the attempted proposal submission on 9 November 2005, which the complainant did by e-mail of 14 November 2005. The complainant stated that the information about the Part B filename neither appeared in the error messages received nor was it contained in the instructions material.

On 16 November 2005, the coordinator of the Call for proposal at the Commission received from the EPSS helpdesk a list of proposals which had encountered difficulties with the electronic submission of proposals. On the basis of that list and of other cased identified by the Commission, the Call coordinator drew up a list of all the cases to be discussed by the internal Eligibility Committee, which reviewed the problems related to submission of proposals and other eligibility issues. The Committee met on 24 November 2005 and, amongst other things, examined the complainant's case. It did not find any fault in the functioning of the EPSS and considered that no proposal had been received on time. It was therefore not able to meet the complainant's request to accept the proposal. The complainant was informed of the Committee's decision by letter of 13 December 2005. Further to this information, the complainant sent an e-mail on 15 December 2005 to the Call coordinator requesting information on how to make a formal appeal against the decision of the Committee. By e-mail of 23 December 2005, the Call coordinator informed the complainant of various means of appeal.

Application procedures for FP6

According to Article 9(1) of the Rules for the participation of undertakings, research centres and universities in, and for the dissemination of research results for, the implementation of the FP6(8), "proposals for indirect actions shall be submitted under the terms of calls for proposals." According to Point 2 of the Call for proposals in question, the Call comprised a general part and specific conditions which were described in the annexes. In particular, the annexes indicated the dates of closure for the submission of proposals for indirect RTD actions. In accordance with Point 4 of the Call, the Commission made available guides for proposers which contained information on the preparation and the submission of a proposal for an indirect RTD action. In the same point, it was also mentioned that the guide, as well as other information relating to the Call, could be obtained from the Commission either by mail or via the CORDIS website(9). This supporting documentation consisted of an "Information Package" composed of the following: (i) Call for proposals, (ii) FP6 Work Programme extract from the Thematic Priority 1, (iii) FP6 in Brief (an overview of the basic features of the programme), and (iv) Guide for Proposers. Additional documentation was made available and accessible on the CORDIS website. Thus all the terms and conditions concerning the preparation of proposals were made available to potential proposers. On the CORDIS website, applicants were also referred to the instructions for the submission of proposals via the EPSS. All the relevant documentation could be downloaded from the website.

As specified in paragraph 5 of Point 5 of the Call for proposals, "proposals for indirect RTD actions [could] be prepared off-line or on-line and submitted on-line". The same was provided in Annex J of the Guidelines and in Point III of the Guide for Proposers. To prepare the proposal off-line, the proposers had to download an off-line version of the EPSS tool and to prepare their proposals following the instructions in the EPT User Guide, which described this process step by step. It was clearly specified on page 15 of the EPT User Guide that Part B filename "should not contain any special characters or spaces. It [could] only contain Latin letters (a-z), digits (0-9), the underscore (_), the dash (-) and the dot (.) character." Such restrictions were required for reasons of compatibility of the proposals with the central system (UNIX) used by the Commission. The option of allowing the proposers to submit their proposals in any possible format would require the Commission to maintain an arsenal of software in different versions which was not possible. Therefore, according to the supporting instructions and guidelines available for preparing a proposal off-line, which clearly specified the format and limitations concerning Part B of a proposal, the complainant could not allege that sufficient and clear information had not been made available.

Moreover, when packaging a proposal, a validation was carried out. If errors were registered, the submission stopped and warnings appeared. During the attempted uploads of its proposal, the complainant received many times the following error message regarding Part B of its proposal: "Invalid character ' ' for filename. The filename must only contain characters: a-z, A-Z, 0-9, '.', '-' and '_'". The functioning of the EPSS was verified and, at the time the complainant attempted to submit its proposal, no technical or other problem was identified that would indicate that the warnings and other measures relating to the normal submission of proposals were not functioning. The Commission could not be held responsible for the difficulties encountered by the complainant in uploading Part B because explicit information on the Part B format had been provided and the warning system functioned correctly.

Inflexibility of the Commission to consider the problematic submission

The Commission has clear, transparent and strict rules which it must apply equally to all applicants:

(i) According to Point 6 of the Call for proposals, the "[p]roposals for indirect RTD actions have to reach the Commission at the latest on the closure date and at the time specified in the call concerned. Proposals for indirect RTD actions arriving after this date and time will be excluded."

(ii) On page 4, the Guide for Proposers provided that "[c]all deadlines are absolutely firm and are strictly enforced. Proposals must be received before or on the deadline as it is specified in the Call for proposals. Proposers are reminded that it is their own responsibility to ensure the timely submission of their proposal. Proposals arriving at the Commission after the deadline are not eligible for evaluation. No extenuating circumstances will be taken into consideration."

(iii) Point III.4 of the Guide for Proposers provided that "[e]lectronically submitted proposals must be submitted to the EPSS system before the call deadline, at which time the access to the EPSS for this call will close."

The Commission repeatedly reminded the potential proposers that it was in their interest not to start submitting proposals at the last moment. Both on page 4 and in Point III.4 of the Guide for Proposers, the proposers were reminded that it was their own responsibility to ensure the timely submission of their proposals. The proposers were also reminded that "[i]f [they] wait until too near to the close of call to commence uploading your proposal, there is a high probability [they] will not be able to submit in time". Furthermore, in the ETP User Guide, proposers were informed that they could create and submit a proposal as many times they wished, before the deadline. Thus, according to Point III.3 of the Guide for Proposers, "[e]rrors discovered in proposals submitted by the EPSS (...) can be rectified by simply submitting a corrected version. So long as the call is not yet closed, the new submission will overwrite the previous one". Furthermore, Point V provided that

"[i]t [was] strongly advised to submit a first version of a proposal well in advance of the deadline (i.e. at least several days before), and then to continue to improve it with regular resubmissions, so that in case of technical or other problems close to the deadline there is a valid version already submitted."

Consequently, the proposers were informed of the possibility to submit a proposal several times and well in advance of the deadline in order to have time to solve any problems. In addition, a number of help desks were set up, notably the EPSS Help Desk, which was at the disposal of proposers experiencing technical difficulties. Despite the fact that the complainant was aware that problems occurred with the Part B filename and that the successive attempts to upload remained unsuccessful, it did not contact the EPSS Help Desk until 16:50. The complainant had put itself in a position which did not permit it rapidly to remedy any potential difficulty that might have arisen during the submission of its proposal so close to the deadline.

The selection and possible funding of a proposal that would not be eligible with regard to its own rules could not be justified. The Commission could also not justify making an exception for this proposal whereas, in other cases, it had always applied the eligibility rules with the same strictness. However, the Commission had provided advice and assistance to applicants in order to prevent technical difficulties from arising or to solve them. In case of difficulties leading to complaints, the Commission services grant utmost attention to each case, in order to determine if the institution could bear any responsibility for the problem encountered by an applicant.

Conclusions

The complainant had been duly informed of the submission rules and deadlines. It was clear that it was the sole responsibility of the complainant to ensure the correct and timely submission of a complete proposal. The Commission had provided advice and services that would normally have enabled the complainant to solve the difficulties in time, had it followed the advice. No fault could be attributed to the Commission for the complainant's failure to follow the instructions at each step of the submission. In the absence of any malfunctioning of the EPSS, and bearing in mind the requirement to treat all proposals equally, the Commission was not in a position to accept the submission of the proposal by e-mail after the deadline.

The submission of the complainant's proposal was examined with utmost attention. The conclusion of the Eligibility Committee was not to accept the complainant's request to admit its proposal. This conclusion was based on a detailed analysis of the case, the information provided in the Call for proposals and in related documents, and the treatment of similar cases in similar circumstances. Therefore, the Commission's decision was taken in accordance with the rules and procedures in force for the submission of proposals. In light of the Commission's application of the principle of equal treatment of proposers, it could not accord preferential treatment or a special exception regarding the submission of the proposal by e-mail.

Of the 357 proposers who submitted a proposal under the Call for proposals here concerned, only 1% did not manage to submit their proposal on time. Therefore, potential allegations that the Commission might have set up a complicated or "user-unfriendly" process, making it difficult for SMEs with limited means to submit a proposal, could not reasonably be sustained.

The complainant did not submit any observations on the Commission's opinion.

THE DECISION

1 Allegedly wrong rejection of the complainant's proposal under the FP6 Call for proposals

1.1 The complainant wished to participate in the final Sixth Framework Programme ("FP6") Call for proposals for small and medium-sized enterprises FP6-2005-LIFESCIHEALTH-7(10) (the "Call for proposals"). The Call for proposals provided that the proposals must have comprised Part A and Part B. The proposals could be prepared either off-line or on-line, and submitted on-line . The deadline for submission of proposals was 9 November 2005. According to the complainant, it used the Electronic Proposal Submission System ("EPSS")(11) to submit its proposal but experienced a problem when trying to add a required document to the submission and received several error messages, none of which explained what the actual problem was. The complainant stated that it had managed to obtain this information at the last moment from the EPSS Help Desk and had tried to upload the final file. However, the complainant missed the deadline by five minutes and could not use the opportunity to submit its proposal and participate in the Call.

The complainant alleged that the Commission had wrongly rejected its proposal under the FP6-2005-LIFESCIHEALTH-7 Call for proposals for small and medium-sized enterprises. The complainant argued, in particular, that (i) the instruction to remove spacing in the title of the proposal file, which was the reason for the delay in submitting the proposal, had not appeared in the error message, when the file was being saved in EPSS, and (ii) the Commission should not have been so rigid in deciding on the admissibility of proposals when the proposer had experienced genuine problems in uploading files such as the ones here concerned.

1.2 As regards the argument under point (i) above, the Commission pointed out in its opinion that the Call for proposals was launched on 8 July 2005 and closed on 9 November 2005 at 17.00 (Brussels local time). In accordance with Point 4 of the Call, the Commission made available guides for proposers which contained information on the preparation and the submission of a proposal(12). This "Information Package" consisted of four documents, amongst which the Guide for Proposers for Specific Targeted Research Projects FP6-2005-LifeSciHealth-7(13) ("Guide for Proposers"). As specified in paragraph 5 of Point 5 of the Call and in Point III of the Guide for Proposers, "proposals for indirect RTD actions [could] be prepared off-line or on-line and submitted on-line" via the EPSS, which was accessible on the CORDIS website. Proposers preparing their proposals off-line had to follow the instructions contained in the Offline Electronic Proposal Tool User Guide ("EPT User Guide")(14), which described this process step by step. It was clearly specified on page 15 of the EPT User Guide that Part B filename "should not contain any special characters or spaces. It [could] only contain Latin letters (a-z), digits (0-9), the underscore (_), the dash (-) and the dot (.) character." Moreover, when packaging a proposal, a validation was carried out. If errors were registered, the submission stopped and warnings appeared. During the attempted uploads of its proposal, the complainant received many times the following error message regarding Part B of its proposal: "Invalid character ' ' for filename. The filename must only contain characters: a-z, A-Z, 0-9, '.', '-' and '_'". The functioning of the EPSS was verified and no technical or other problem was identified at the time the complainant attempted to submit its proposal that would indicate that the warnings and other measures relating to the normal submission of proposals were not functioning.

As regards the argument under point (ii) above, the Commission stated in its opinion that the proposers were duly informed of the submission rules and deadlines(15). The Commission repeatedly reminded potential proposers that it was in their interest not to start submitting proposals at the last moment(16). Furthermore, in the ETP User Guide, proposers were informed of the possibility to submit a proposal several times and well in advance of the deadline in order to have time to solve any problems(17). The Commission had provided advice and services that would normally have enabled a proposer to solve the difficulties in time, had it followed the advice . In addition, a number of help desks were set up, notably the EPSS Help Desk, which was at the disposal of proposers experiencing technical difficulties. According to the EPSS log history, the complainant started to create Part A of its proposal on 7 November 2005. On 8 November 2005, there was no register of any attempt by the complainant to connect to the EPSS. On 9 November 2005 at 16:21:52 Brussels time, the complainant logged in but did not succeed in packaging the proposal file and got successive error messages explaining what the problem was. The complainant telephoned the EPSS Help Desk at 16:50 Brussels time when it was informed that the space between "Part" and "B" should be removed. After the complainant renamed Part B, it was added to the proposal package. However, when it tried to upload the file, the connection timed-out. The complainant logged in again at 17:09:06 Brussels time. At that point in time, however the Call had been closed and it was no longer possible to upload Part B.

Despite the fact that the complainant was aware that problems occurred with the Part B filename and that the successive attempts to upload remained unsuccessful, it did not contact the EPSS Help Desk until 16:50. The complainant thus put itself in a position which did not permit it rapidly to remedy any potential difficulty that might have arisen during the submission of its proposal so close to the deadline. Consequently, the Commission could not justify the admission of a proposal that would not be eligible under its own rules. It could also not justify making an exception for this proposal whereas, in other cases, it has always applied the eligibility rules with the same strictness.

1.3 The complainant did not submit any observations on the Commission's opinion.

1.4 The Ombudsman would first like to recall the general principle of equal treatment of applicants for grants(18). This principle implies (i) that all applicants are under an equal duty to take care in drawing up and submitting their proposals(19), (ii) that w hen proposals are being assessed, the admissibility criteria must be applied objectively and uniformly to all applicants(20), and (iii) an obligation of transparency(21), which means, inter alia, that the admissibility and award criteria stated in a call for proposals or in a document to which the call makes reference must be formulated in such a way as to allow all reasonably well-informed and normally diligent applicants to interpret them in the same way(22). In this context, provisions in the call or in a document to which the call makes reference and made publicly available to the potential applicants, concerning when and how the proposals should be submitted are particularly important. Such provisions affect the preparation and formulation of the proposals and are substantially relevant to the significant Community interest of affording applicants the opportunity to compete on an equal footing. Consequently, when the contracting authority examines the proposals submitted to it, due regard must be had to the content of such provisions, at least to the extent that their content, or their application in particular circumstances, does not violate overriding legal rules or principles of good administration.

1.5 As regards the present case, the Ombudsman notes that Point 6 of the Call for proposals provided that the "[p]roposals (...) have to reach the Commission at the latest on the closure date and at the time specified in the call concerned. Proposals for indirect RTD actions arriving after this date and time will be excluded." According to Point 6 of Annex 2 to the Call for proposals, the closure date for submitting proposals was 9 November 2005 at 17.00 (Brussels local time).

Furthermore, the Ombudsman also notes that, in accordance with Point 4 of the Call for proposals(23), the Commission made available to potential proposers the Guide for Proposers and the EPT User Guide, which contained detailed, step by step information on how to submit a proposal. The Guide for Proposers provided that

"[c]all deadlines are absolutely firm and are strictly enforced. (...) Proposers are reminded that it is their own responsibility to ensure the timely submission of their proposal. Proposals arriving at the Commission after the deadline are not eligible for evaluation. No extenuating circumstances will be taken into consideration."

Point III.4 of the Guide also provided that "[e]lectronically submitted proposals must be submitted to the EPSS system before the call deadline, at which time the access to the EPSS for this call will close." Lastly, the Ombudsman notes that the EPT User Guide comprised 25 pages setting out in a clear and systematic manner the relevant steps to be followed when submitting a proposal. In particular, the table of contents contained, under the title "PROPOSAL EDITOR", a section entitled "PART B" in which it was clearly stated that "[t]he Part B filename should not contain any special characters or spaces. It can only contain Latin letters (a-z), digits (0-9), the underscore (_), the dash (-) and the dot (.) character."

1.6 As regards the complainant's argument under point (i) above, that the need to remove spacing in the title of the proposal file had not appeared in the error message when saving the file in EPSS, the Ombudsman first points out that the relevant section of the EPT User Guide clearly provided that "[t]he Part B filename should not contain any special characters or spaces" (emphasis added) and set out the characters allowed. Moreover, the Ombudsman notes that, as stated in the Commission's opinion on the present complaint, the EPSS validation system, for which no functional problems were reported for the period in which the complainant attempted to submit the proposal, repeatedly sent to the complainant the following message, in response to his unsuccessful attempt to upload Part B of his proposal: "Invalid character ' ' for filename. The filename must only contain characters: a-z, A-Z, 0-9, '.', '-' and '_'" . The complainant has not made any observations contesting the factual accuracy of the above statement. The Ombudsman considers the foregoing message to have been quite clear, even more so in light of the information provided beforehand in the Guide for Proposers. The Ombudsman also notes that the Commission set up a help desk, which, once contacted by the complainant, advised it promptly on how to solve the problem, but that the complainant contacted the EPSS Help Desk only ten minutes before the deadline for the submission of proposals was due to expire. Consequently, the Ombudsman considers that the complainant's first argument in support of its allegation cannot be upheld.

1.7 As regards the complainant's argument (ii), that the Commission should not have been so rigid in deciding on the admissibility of proposals when the proposers had experienced genuine problems in uploading files, the Ombudsman recalls the principles and requirements referred to in point 1.4 of the present decision. Hence, the Commission, when examining the admissibility of the proposals, had to comply with the provisions of the Call and the Guides to which Point 4 of the Call referred as regards the time and manner of submitting the proposals. Moreover, it has been neither argued, in a specific way, nor demonstrated that the content of these provisions, or their application in the particular circumstances, violated overriding legal rules or principles of good administration. For these reasons, the complainant's argument cannot be sustained.

1.8 In light of the above, the Ombudsman considers that the complainant's allegation that the Commission had wrongly rejected its proposal has not been substantiated.

2 Conclusion

On the basis of the Ombudsman's inquiry in this case, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Decision No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 concerning the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) (OJ 2002 L 232, p. 1).

(2) Calls for proposals for indirect RTD actions under the specific programme for research, technological development and demonstration: Integrating and strengthening the European Research Area - Thematic priority area Life sciences, genomics and biotechnology for health ( OJ 2005 C 168, p. 54).

(3) The EPSS is a system made available by the Commission for electronic preparation and submission of proposals under the FP6 (source: http://cordis.europa.eu/fp6/stepbystep/electronics.htm).

(4) The Guide for Proposers is available at the following website on the Europa domain: http://cordis.europa.eu/lifescihealth - under "Calls" / " FP6-2005-LIFESCIHEALTH-7".

(5) This application is available on the Cordis website (http://www.cordis.lu/fp6).

(6) The Offline Electronic Proposal Tool User Guide is available on the Cordis website.

(7) In the case of an off-line preparation, the EPSS was not able to follow the proposal step by step as it could in the case of an on-line preparation. This was so because the application ran on the user's local hardware without the need for on-line connection. In the present case, the EPSS Help Desk was only able to track the on-line submission phase recorded in the proposal's EPSS log history.

(8) Regulation (EC) No 2321/2002 of the European Parliament and of the Council of 16 December 2002 concerning the rules for the participation of undertakings, research centres and universities in, and for the dissemination of research results for, the implementation of the European Community Sixth Framework Programme (2002-2006) OJ 2002 L 355, p. 23.

(9) In the Call, the Commission postal address (European Commission, The FP6 Information Desk, Directorate General RTD, B-1049 Brussels) and CORDIS' internet address (http://fp6.cordis.lu/lifescihealth/calls.cfm) were provided.

(10) Calls for proposals for indirect RTD actions under the specific programme for research, technological development and demonstration: Integrating and strengthening the European Research Area - Thematic priority area Life sciences, genomics and biotechnology for health (OJ 2005 C 168, p 54).

(11) The EPSS is a system made available by the Commission for electronic preparation and submission of proposals under the FP6 (source: http://cordis.europa.eu/fp6/stepbystep/electronics.htm).

(12) In the same point, it was also mentioned that the guides, as well as other information relating to the Call, could be obtained from the Commission either by mail or via the CORDIS website. In the Call, the Commission's postal address (European Commission, The FP6 Information Desk, Directorate General RTD, B-1049 Brussels) and the CORDIS' internet address ( http://fp6.cordis.lu/lifescihealth/calls.cfm) were provided.

(13) The Guide for Proposers is available at the following website on the Europa domain: http://cordis.europa.eu/lifescihealth - under "Calls" / " FP6-2005-LIFESCIHEALTH-7".

(14) The Offline Electronic Proposal Tool User Guide was available on the Cordis website.

(15) Point 6 of the Call for proposals provided that the "[p]roposals (...) have to reach the Commission at the latest on the closure date and at the time specified in the call concerned. Proposals for indirect RTD actions arriving after this date and time will be excluded." The Guide for Proposers provided that

"[c]all deadlines are absolutely firm and are strictly enforced. Proposals must be received before or on the deadline as it is specified in the Call for proposals. Proposers are reminded that it is their own responsibility to ensure the timely submission of their proposal. Proposals arriving at the Commission after the deadline are not eligible for evaluation. No extenuating circumstances will be taken into consideration."

Point III.4 of the Guide for Proposers provided that "[e]lectronically submitted proposals must be submitted to the EPSS system before the call deadline, at which time the access to the EPSS for this call will close."

(16) Both on page 4 and in Point III.4 of the Guide for Proposers, the proposers were reminded that it was their own responsibility to ensure the timely submission of their proposal. The proposers were also reminded that "[i]f [they] wait until too near to the close of call to commence uploading [their] proposal, there is a high probability [they]will not be able to submit in time".

(17) According to Point III.3 of the Guide for Proposers, "[e]rrors discovered in proposals submitted by the EPSS (...) can be rectified by simply submitting a corrected version. So long as the call is not yet closed, the new submission will overwrite the previous one". Furthermore, Point V provided that:

"[i]t [was] strongly advised to submit a first version of a proposal well in advance of the deadline (i.e. at least several days before), and then to continue to improve it with regular resubmissions, so that in case of technical or other problems close to the deadline there is a valid version already submitted."

(18) Article 109 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1): "1. The award of grants shall be subject to the principles of transparency and equal treatment." Cf also Case C-57/01 Makedoniki Metro and Mikhaniki [2003] ECR I-1091, paragraph 69 (concerning tenders).

(19) Cf. Case T-19/95 Adia Interim v Commission [1996] ECR II-321, paragraph 47 (concerning tender procedures).

(20) Cf. Case C-448/01 Evn and Wienstrom [2003] ECR I-14527, paragraph 48 (referring to award criteria in tender procedures).

(21) Case C-448/01 Evn and Wienstrom, cited above, paragraph 48.

(22) Cf Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 42 (concerning tender procedures).

(23) Point 4 of the Call for proposals provides the following: "The Commission makes available to proposers guides for proposers relating to the calls which contain information on the preparation and the submission of a proposal for an indirect RTD action. The Commission also makes available Guidelines on Proposal Evaluation and Selection Procedures (...)."