The background to the complaint

1. The complainant, a consortium, had a service contract with EULEX Kosovo for the provision of services in Pristina, Kosovo.

2. In January 2013, the Head of Mission of EULEX Kosovo suspended the service contract with the complainant, alleging that the complainant had not lived up to its contractual obligations.

3. Following a review of the alleged irregularities, the Head of Mission lifted the imposed suspension in March 2013. EULEX Kosovo resumed use of the services provided by the complainant.

4. The complainant informed EULEX Kosovo that it strongly believed that the suspension was unjustified. The complainant requested EULEX Kosovo to clear its record and pay for the services that it had to keep in full operational status during the period of suspension of the contract.

5. EULEX Kosovo rejected the complainant's request.

6. The complainant's further attempts to settle the matter amicably with EULEX Kosovo, without the intervention of a third party, were not successful.

7. On 26 June 2013, the complainant turned to the European Ombudsman.

The inquiry

8. The Ombudsman opened an inquiry against the Commission[1], concerning the following allegations and claims:

Allegations

1) EULEX Kosovo's suspension of the complainant's contract was unjustified.

In support of this allegation, the complainant argued that the alleged irregularities in the carrying out of its contractual obligations were minor and partially caused by EULEX Kosovo itself.

2) EULEX Kosovo failed to provide reasons in good time for the suspension of the contract.

In support of this allegation, the complainant argued that EULEX Kosovo gave specific reasons as to the kind of alleged irregularities only on 6 March 2013.

Claims

1) Given that EULEX Kosovo's own evaluation of the irregularities showed that there was no serious misconduct which would have justified a suspension, it should clear the complainant's record.

2) EULEX Kosovo should pay in full the monthly service fee for the suspension period because the complainant had to maintain its services operational at full cost during that period.

9. The Ombudsman invited the Commission to provide an opinion on the above allegations and related claims. In response, the Commission stated that it was not in a position to issue an opinion on the substance of the complaint. It stated that Common Foreign and Security Policy missions, like EULEX Kosovo, have their own legal capacity to enter into contracts to obtain services necessary for their functioning. EULEX Kosovo itself would thus be the entity competent to resolve the matter at hand. The Commission had therefore requested EULEX Kosovo's opinion on the complaint, which it forwarded to the Ombudsman.

10. In light of the developments set out above, the Ombudsman formally redirected her inquiry to the Head of EULEX Kosovo (in his capacity as Contracting Authority for the relevant service contract) on 10 November 2014, proposing a possible solution to the complaint. The Ombudsman received EULEX Kosovo's response to the proposed solution and, subsequently, the comments of the complainant on that response. In conducting the inquiry, the Ombudsman has taken into account the arguments and views put forward by the parties.

The allegedly unjustified suspension of the contract and related claims

Arguments presented to the Ombudsman

11. In its opinion on the complaint, forwarded to the Ombudsman by the Commission, EULEX Kosovo stated, among other things, that it would be willing to initiate the conciliation procedure provided for in the service contract with a view to resolving the contractual dispute, provided that the complainant were to submit a formal request.

12. In its observations on EULEX Kosovo's opinion, the complainant underlined that it had been, and still was, seeking to resolve the contractual dispute without resorting to legal proceedings. The complainant considered that it had already, more than once, addressed requests to EULEX Kosovo for the conciliation procedure to be initiated.

The Ombudsman's proposal

13. During the course of the inquiry, it became clear that the complainant primarily wished the contractual dispute with EULEX Kosovo to be brought to conciliation. However, not having succeeded in its attempts to achieve conciliation, the complainant brought the matter to the Ombudsman. Nevertheless, the complainant’s primary goal was still for conciliation to be initiated, not for the Ombudsman to look into the substance of the contractual dispute.

14. The Ombudsman found that conciliation would indeed be the most appropriate way to try to reach an amicable solution to the contractual dispute, given that a possible analysis by the Ombudsman of the substance of the dispute would be made primarily from a perspective of what constitutes good administration.

15. Given that EULEX Kosovo had also expressed its willingness to use conciliation in order to settle the contractual dispute, and given further that the complainant had eventually, on 30 October 2014, made a request for conciliation in line with the requirements of the service contract, the Ombudsman proposed, in her letter formally redirecting the inquiry to EULEX Kosovo, that it try to find a solution to the complainant's allegations and claims by agreeing to initiate the conciliation procedure. The Ombudsman also informed EULEX Kosovo that she would consider closing the present case as settled if EULEX Kosovo were to inform her that the conciliation procedure had been initiated.

The Ombudsman's assessment after her proposal

16. In response to the Ombudsman's proposal, the Head of EULEX Kosovo informed the Ombudsman that EULEX Kosovo had accepted the complainant's request and made the necessary arrangements to initiate the conciliation procedure.

17. The complainant was satisfied with the conciliation procedure having been initiated.

18. The Ombudsman commends EULEX Kosovo for having responded positively and in a constructive manner to her proposal that it agree to, and initiate, conciliation with a view to try to settle the contractual dispute. The Ombudsman finds that EULEX Kosovo has taken appropriate steps to settle the matter that made the complainant turn to the Ombudsman.

19. The Ombudsman will invite EULEX Kosovo to inform her, in six months' time, of the state of play or outcome of the conciliation procedure between the complainant and EULEX Kosovo.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

EULEX Kosovo has taken steps to settle the matter that made the complainant turn to the Ombudsman by agreeing to initiate the conciliation procedure provided for in the service contract.

The complainant and EULEX Kosovo will be informed of this decision.

Emily O'Reilly

 

Strasbourg 16/02/2015

 

[1] Given that the responsibilities for the actions of Common Foreign and Security Policy missions are divided between the Council, the European Commission and the European External Action Service, the Ombudsman contacted the Commission and the European External Action Service to seek clarification as to which of them would be responsible for the issue complained about. The information provided to the Ombudsman led her to conclude that the inquiry needed to be directed to the Commission.