Strasbourg, 13 May 2008

Dear Mr L.,

On 8 January 2007, you submitted a complaint to the European Ombudsman against the European Commission concerning its response to a letter that you had sent to it on 15 December 2005. The letter concerned a contract with the Commission (WE 151/95-LU-DE).

On 3 May 2007, I forwarded the complaint to the President of the Commission, and I informed you accordingly.

On 27 July 2007, in reaction to the opening of the present inquiry, the Commission sent you a letter intended to reply to your above-mentioned letter of 15 December 2005. In a letter of 27 August 2007, you sent me comments regarding the Commission's reply. The Commission's opinion was sent to the Ombudsman on 26 September 2007, and contained, inter alia, a copy of the above-mentioned letter of 27 July 2007. On 29 November 2007, you submitted your observations.

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

THE COMPLAINT

Background

In December 2006, the European Ombudsman conducted a telephone inquiry into the complainant's complaint 3705/2006/PB. That inquiry was opened in light of, in summary, the following information:

In complaint 3705/2006/PB, the complainant stated that, despite several telephone calls made to the Commission, he had not received any written reply to a letter that he sent to the Institution on 15 December 2005. The complainant expressly stated, as a first point, that he wanted a reply to his letter. He attached to his complaint a postal receipt of his letter of 15 December 2005, as well as a copy of his letter to the Commission. This letter referred to previous correspondence apparently relating to a dispute or simply to discussions concerning a contract (reference WE 151/95-LU-DE) between the Commission and four named private partners (the complainant being one of them).

On 15 December 2006, the Commission sent the Ombudsman a copy of a reply that it had sent to the complainant on 13 July 2006. The Commission's reply reminded the complainant of a previous request that it had made to the complainant, on 25 October 2005, for the final technical and financial reports, made in order to terminate the contract. The Commission noted that the complainant had not submitted these reports, and that the Commission could therefore not determine his entitlement to those payments.

The Ombudsman closed the telephone inquiry on 20 December 2006, concluding that there were no grounds to inquire further into the allegation of a failure to reply.

The present complaint

On 8 January 2007, the complainant wrote to the Ombudsman again. He thanked the Ombudsman for the quick handling of his first complaint, but considered that the Commission's reply of 13 July 2006 had not actually responded adequately to his letter of 15 December 2005.

On 3 May 2007, the Ombudsman opened his present inquiry into the following allegation and claim:

The complainant alleges that the Commission has wrongly failed to reply to the points that he made in his letter of 15 December 2005.

He claims that the Commission should reply to the points that he made in his letter of 15 December 2005.

In his letters to the complainant and the Commission, the Ombudsman pointed out that his inquiry only concerns the above-mentioned allegation about failure to reply, and not the substance of the underlying contractual dispute between the complainant and the Commission.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

I. Background/Summary of the Facts

The complainant is one of the contractors of Contract WE-151-91-LU-DE.

Contract WE 151/95-LU-DE was concluded between the Commission and the following parties:

'Habitat Constructions', represented by Mr Victor Kneip as the Financial Manager;

'Ing. Büro Peters', represented by Mr Jens Peters as the Co-ordinator;

'Nordex Energieanlagen', represented by Mr Borgmeyer; and

The complainant, as Technical Director.

It was signed by the Commission on 29 March 1996. The aim of the project under the contract was to build and operate four wind turbines.

On 28 May 1996 the Commission paid an advance of ECU 262 366 to a company called 'Habitat sari'. The principal contractor was a company called 'Habitat Constructions'. It should be noted that there was a degree of confusion about these two companies but Mr Kneip indicated that they both belonged to him.

On 6 May 1997, the Commission issued a recovery order regarding the sum of ECU 262 366 paid out to 'Habitat sari' on 28 May 1996.

During the time the project was being carried out, more problems and disputes among the contactors arose. The Commission organised a mission to Luxembourg and tried to solve the problems by negotiating an agreement ("the Agreement"), which was signed on 15 January 1998 and was designed to amend the contract.

According to this Agreement, Contract WE 151/95-LU-DE would be carried out with a public limited company 'Wind part op de Hei' (which was to be founded), as the only contractor instead of the previous contractors, namely, Mr Victor Kneip, 'Ing. Büro Peters', 'Nordex Energieanlagen', and the complainant. The parties also agreed to convert 'Wind part op de Hei' into a public limited company ("Aktiengesellschaft") and to include Mr L. as a shareholder.

In Article III of the Agreement, the Commission undertook to withdraw its recovery order against 'Habitat sari' for ECU 262 366, on condition that the contract be amended in accordance with the provisions of the Agreement.

The complainant signed the Agreement but, subsequently, refused to buy shares in the new company.

On 21 June 1999, the Commission decided to annul the recovery order of 6 May 1997 regarding the sum of ECU 262 366 paid out to 'Habitat sari' on 28 May 1996.

On 25 October 2005, the Commission sent a letter (D 2005/116058) to 'Habitat Constructions - Windpark op der Hei', Mr Victor Kneip, 'Ing. Büro Peters', Mr Jens Peters, 'Nordex Energieanlagen' and Mr L. In that letter, the Commission informed the recipients of the said letter of its intention to terminate Contract WE 151/95-LU-DE and asked them to submit final technical and financial reports, as well as information on the respective legal entities.

The complainant responded with the letter dated 15 December 2005 (A/33203). In this letter, the complainant raised many different points but did not submit the requested documents and did not address the issue brought up by the Commission. The other contractors fully responded to the Commission's request.

The Commission was currently processing the information provided by the other contractors with a view to completing its technical and financial assessment.

The Complaint

In his letter to the Ombudsman of 6 December 2006, the complainant states that he has not, to date, received a reply from the Commission to his letter of 15 December 2005 and claims that it should reply to the points he raised in the said letter.

The Ombudsman notes that his inquiry concerns only the above-mentioned allegation about the Commission's failure to reply, and not the substance of the underlying contractual dispute between the complainant and the Commission.

The Commission's Comments on the Complainant's Arguments

Regarding the procedural point on having failed to reply to the complainant's letter of 15 December 2005, the Commission would like to indicate that it did reply to the said letter, albeit with a certain delay.

First, in its response dated 13 July 2006, the Commission addressed the key issue, namely, the fact that the complainant, although he had reacted within the two-month deadline, had not complied with what was requested in order to fulfil the terms of the contract.

Second, in its letter of 27 July 2007 the Commission addressed in detail the points raised by the complainant in his letter dated 15 December 2005. The Commission's letter of 27 July 2007 stated:

"Dear Mr L.,

[I]n your complaint addressed to the European Ombudsman you argue that the Commission has wrongly failed to reply to the points made in your letter of 15 December 2005[.] Furthermore you claim that the Commission should reply to the points raised by you in the letter of 15 December 2005. According to your words your aim is to complete the contract WE 151/95-LU-DE[.]

After having carefully analysed your letter of 15 December 2005 once more two important points can be identified within the text.

The first one concerns your allegation that Habitat Constructions, Mr Kneip and Mr Peters are not contractors of the contract WE 151/95-LU-DE.

The second issue refers to your question whether the Commission is obliged to apply Article III of the Agreement of 15 January 1998 on recovery of the advance payment granted to Habitat sari[.]

Herewith I would like to address these issues explaining the position of the Commission.

1.

With regard to the first allegation that Habitat Constructions, Mr Kneip and Mr Peters are not contractors of the contract WE 151/95-LU-DE, 1 would like to mention the following:

Habitat Constructions (represented by Mr Victor Kneip), Ing. Büro Peters (represented by Mr Jens Peters), Nordex Energieaniagen (represented by Borgmeyer) and Mr L. concluded together the contract WE 151/95-LU-DE with the European Commission, There is no legally effective contract amendment signed by all parties, which would change the composition of the consortium.

After the contract has been signed, it turned out that the Habitat Constructions was in fact a commercial name for Mr Kneip and not a legally independent company. As a result Mr Kneip was for the whole time as a substitute personally responsible for the realisation of the contract. In his declaration has Mr Kneip certified that he is personally and fully responsible for the contract obligations. Therefore, Mr Victor Kneip, Ing. Büro Peters (represented by Mr Jens Peters)[,] Nordex Energieanlagen (represented by Borgmeyer) and Mr L. were and still are considered by the Commission as the contractors of the contract WEI 51/95-1 .U-DE.

2.

As to the second allegation that the Commission has failed to apply Article 111 of the Agreement of 15 January 1998 on recovery of the advance payment granted to Habitat sari, I would like to draw your attention to the following:

The Commission sent the advance payment of 262.366 EURO to a company called Habitat sari. In fact, it was Mr Kneip who was the correct beneficiary of the advance payment sent to this company. The Commission discovered its mistake and on 6/5/1997 issued for that reason the recovery order against Habitat sari, for 262.366 EURO.

During the realisation of the project, more problems and disputes among the contactors started to emerge. The Commission organised a mission to Luxembourg and tried to solve the problems by negotiating an agreement, which was signed on 15 January 1998 aiming at the preparation of a contract amendment.

In Article 111 of the Agreement, the Commission commits to withdraw its recovery order against 'Habitat sari' for 262,366 EURO, under the condition that [the] contract is amended following the provisions of the agreement dated 15 January 1998.

The provisions were:

'The contract should be carried on with the public limited company Wind part op de Hei as the only contractor of the contract WE 15J/95-LU-DE instead of the previous contractors: Victor Kneip, Ing. Büro Peters, Nordex Energieanlagen and Mr L. The parties decided to convert Wind part op de Hei Ltd into [a] public limited company and include Mr L. as a shareholder.'

Due to the dispute among the contractors over the price for the shares, the Agreement of 15 January 1998 has never come into force. Consequently the contract could not be amended following the provisions of the agreement.

In your letter of 15 December 2005 you asked whether the failure of the Agreement triggers an obligation on the Commission's part to apply automatically the Article 111 of the Agreement.

The question whether the Agreement could have forced the Commission to pursue its claim against the 'Habitat sari' is closely connected with the nature and function of the Agreement itself[.]

As you may remember the aim of the agreement was to solve disputes and misunderstandings among the contractors and to complete the project. The Commission committed to withdraw its recovery order against 'Habitat sarl' for 262,366 EURO, under the condition that [the] contract is amended following the provisions of the agreement. This was meant as an incentive to the contractors for inducing them to establish and convert 'Wind part op de Hei Ltd. into a public limited company by shares, which seemed at the time to be a good solution for every interested party also for you.

The gain for the contractors should have been, on the one hand, the shares of the new company and on the other hand the arrangement itself, which would regulate the cooperation and the relationships between them. The main benefit for the Commission would have consisted in clarification of the situation in the consortium and securing of the contract realisation. At the same time the problem with the advance payment would have been solved too and this is why the Commission could offer to withdraw its recovery order.

If the condition would have been fulfilled with the conclusion of the contract amendment, the Commission would have been obliged to withdraw its recovery order. But contrariwise the non fulfilment of the condition could not have triggered any obligation for the Commission with regard to the recovery of 262,366 EURO. It would still have been up to the Commission to decide how to proceed with the recovery order.

The recovery order against Habitat sarl, was issued due to the fact that this company received the advance payment of 262.366 EURO although, in fact, it was Mr Kneip who was the correct beneficiary of the advance payment sent to this company. From the legal point of view, the decision how to proceed with the [recovery order] for 262366 EURO lay entirely under the responsibility of the Commission because it was the Commission which had a claim based on unjust enrichment against Habitat sari. It was also up to the Commission to decide how to carry on with the claim.

The recovery order was withdrawn on 21/6/1999. The corresponding decision was based not directly on grounds which were connected to the Agreement of 15 January 1998. Mr Kneip made on 23/4/1999 a statement, by which he acknowledged the payment sent to Habitat sari as having been executed to him personally. Therewith, the advance payment was considered as having been sent to the right contractor. According to the applicable law, this was satisfactory to annul the recovery order.

Yours sincerely,

(...)".

The Commission's late answer was due to work overload and difficulties in recruiting financial staff. The Commission would like to apologise for the delay.

Conclusions

The Commission replied to the complainant's letter of 15 December 2005 by its letters of 13 July 2006 and 27 July 2007. The Commission would like to apologise for the delay.

The complainant's observations

In a letter sent to the Ombudsmen following receipt of the Commission's reply of 27 July 2007, the complainant stated that he was not satisfied with that reply. First, he pointed out that he had referred, in his letter of 15 December 2005 to the Commission, to other prior letters dated 15 February 2000, 21 August 2003 and 31 August 2004, which, in his view, should also have been replied to by the Commission. Second, he indicated that a question as to how the project could be carried through had been left unanswered.

The complainant submitted subsequently certain information and expressed certain grievances relating to the contract concerned, and asked the Ombudsman to examine the substance of the case and make a proposal.

THE DECISION

1 The allegation that the Commission has wrongly failed to reply to the points that he made in his letter of 15 December 2005

1.1 The complainant alleged that the European Commission has wrongly failed to reply to the points that he made in his letter of 15 December 2005, relating to a contract (WE 151/95-LU-DE).

1.2 In response to the opening of the present complaint, the Commission, on 27 July 2007, sent a reply to the complainant, which was designed to reply to the above-mentioned letter of 15 December 2005. In its letter, the Commission stated that it had identified two important points within the text of the complainant's letter of 15 December 2005, and provided detailed relevant information and explanations.

1.3 The complainant was not satisfied with the Commission's reply of 27 July 2007. First, he pointed out that, in his letter of 15 December 2005, he had also referred to other prior letters dated 15 February 2000, 21 August 2003 and 31 August 2004, which, in his view, should also have been replied to by the Commission. Second, he indicated that a question concerning how the project could be carried through had been left unanswered.

The complainant furthermore submitted, in his observations, certain information and expressed various grievances relating to the contract concerned, and asked the European Ombudsman to examine the substance of the case and make a proposal.

1.4 Having examined the Commission's letter of 27 July 2007, the Ombudsman considers that its content can reasonably be considered to constitute an adequate response to the complainant's letter of 15 December 2005, since it identifies, as noted above, important points to which it gave a detailed response. The complainant has not as such disputed the adequacy of the response to those points. Concerning the dissatisfaction nevertheless expressed by the complainant, referred to above in point 1.3, the Ombudsman notes the following: First, the complainant's letter of 15 December 2005 asked for the stated letters to be "taken into account". It did not ask for a reply to specific questions. At any rate, the Ombudsman has not received copies of those letters, on whose content and relevance he is therefore unable to form an opinion. Second, the Ombudsman has not been able to identify, in the complainant's letter of 15 December 2005, a question specifically on how the project could be carried through(1). In any event, that issue appears essentially to relate, in part, to the substance of the complainant's grievances against the Commission, to which the Ombudsman refers to in his comments in point 2 below.

In light of the foregoing, the Ombudsman considers that there are no grounds for continuing his inquiries into the allegation and the corresponding claim taken up for inquiry.

2 The request for an extension of the present inquiry

2.1 With regard to the complainant's request for an examination of the substance of his dispute with the Commission, the Ombudsman draws attention to Article 2(4) of his Statute:

"A complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint and must be preceded by the appropriate administrative approaches to the institutions and bodies concerned."

The purpose of this requirement is to give the institution or body concerned the possibility to correct its behaviour, or at least to explain itself, before a complaint is made to the Ombudsman. Subsequently, in case a complaint is lodged with the Ombudsman, this requirement enables him to take into consideration the institution's reply when making a decision on the existence of sufficient grounds for opening an inquiry. In the present case, the Ombudsman does not have evidence that the various grievances expressed by the complainant have been the subject of appropriate prior administrative approaches to the Commission. For this reason alone, it is not appropriate to extend the scope of the present inquiry as requested by the complainant. The Ombudsman furthermore points out that, given that most of the facts and events that the complainant refers to go back to the 1990s and early 2000, the examination of the same grievances contained in a potential new complaint will have to be carried out in the light of the time-limit stated in the above-cited provision.

3 Conclusion

In light of the above findings and conclusions, the Ombudsman has decided to close the inquiry.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The letter merely ended with an expression of hope for an early reply, "so that we can achieve an early agreement on the continuation of the project".