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Decision of the European Ombudsman closing the inquiry into complaint 2528/2011/MMN against the European Commission

Thursday | 10 July 2014

The case concerned the exercise by lawyers of the right of free movement within the EU. The European Commission rejected a complaint lodged by a person who qualified as a lawyer in Cyprus and who considered that the UK and/or the Cypriot authorities had infringed the free movement rules. The European Ombudsman inquired into the matter and found that the Commission had not committed any act of maladministration. As regards the UK, the Commission correctly concluded that the UK authorities had complied with the applicable rules. Likewise, as regards the Cypriot authorities, the Commission was right to consider that the complainant had failed to produce evidence that they had created an obstacle to the exercise of the complainant's right of free movement.

Decision of the European Ombudsman closing the inquiry into complaint 1174/2011/MMN against EASA

Tuesday | 17 June 2014

The case concerned the refusal by the European Aviation Safety Agency ('EASA') to grant access to documents (namely, (i) EASA's surveillance plans and (ii) EASA's approval recommendation reports) regarding four aircraft maintenance service providers established in Asia. The Ombudsman inquired into the issue and found that EASA's reliance on the protection of commercial interests and the protection of the purpose of inspections, investigations, and audits was not convincing. Following a draft recommendation from the Ombudsman, EASA decided to release the requested documents.

Decision of the European Ombudsman closing his inquiry into complaint 2450/2008/(VL)BEH against the European Commission

Monday | 17 December 2012

The complainant is a German engineer who was in charge of supervising the construction of the Serious Crimes Court in Tirana, Albania. The building project was subject to a works contract concluded between the Albanian Ministry of Justice (the 'contracting authority') and a private building company (the 'contractor'), and was funded from the general budget of the European Commission. The complainant's contract as supervisor expired at the end of November 2007.

In 2008, the complainant turned to the Ombudsman and alleged that the Commission's Delegation to Albania failed properly to support him (i) in his efforts to ensure that the project works were carried out in accordance with the contract and (ii) in his related conflicts with other parties involved in the project. In support of the first aspect of his allegation, the complainant essentially argued that the contractor and the contracting authority agreed to use cheaper and inferior materials than the ones provided for in the works contract. The complainant also alleged that the Commission failed to call for an investigation of a fatal accident at the building site.

In its opinion, the Commission essentially rejected the complainant's views and asserted that it gave substantial support to the contracting parties and the complainant. Following an inspection of the Commission's file concerning the project, the Ombudsman noted that the complainant, who held key responsibility in the project, reported instances of threats and intimidations against him to the Commission. The Commission recognised the seriousness of these occurrences which were raised in two meetings. However, the Ombudsman did not consider this to be commensurate to the recognised seriousness in the face of which one would have clearly expected decisive action by the Commission so as to seek to prevent any such incidents from recurring in the future. The Ombudsman therefore concluded that the Commission did not sufficiently support the complainant and made a critical remark in this regard. He moreover took the view that the Commission did not use the powers at its disposal to call for an investigation seeking reliably to establish the facts of the fatal accident in which one worker lost his life. For instance, it did not request clarifications from the Albanian authorities. Accordingly, the Ombudsman made a further critical remark.

As regards the complainant's allegation that the Commission failed to support him in his efforts to ensure compliance with the works contract, the Ombudsman's investigation revealed no maladministration. At the same time, the Ombudsman realised that certain aspects not covered by his inquiry, for instance, the approval, after the complainant's contract had expired, of an air-conditioning system of an apparently lower quality without a price reduction or an extension of the warranty period, could be of concern from the point of view of the sound management of EU funds. The Ombudsman therefore invited the European Court of Auditors, in view of its special expertise and responsibility in auditing the spending of EU funds, to consider these aspects.

Decision of the European Ombudsman closing his inquiry into complaint 1972/2009/ANA against the European Commission

Tuesday | 11 December 2012

The TBT Directive requires Member States to communicate draft technical regulations to the European Commission. The complainant is a Greek internet services company that complained about the Commission's refusal to give access to a revised draft technical regulation on recreational games which Greece communicated to it. The European Ombudsman carried out an inquiry into the complainant's allegations that the Commission infringed the procedural and substantive rules of Regulation 1049/2001 on public access to documents and the claim that the Commission should grant access to the requested document.

As regards the procedural allegation, the Ombudsman made a draft recommendation that the Commission should acknowledge the unjustifiable delay that occurred in the handling of the complainant's confirmatory application and provide an undertaking that such delays will not occur in future. The Commission accepted the Ombudsman's draft recommendation.

Regarding the substantive allegation and the related claim, the Commission defended its refusal to give access on the ground that it had to protect the dialogue it had entered into with the Greek authorities in order to bring into conformity with EU law the Greek legislation on recreational games, which the Court of Justice had found to infringe that law.

In his preliminary assessment, the Ombudsman found that, because the case at hand concerned closed infringement proceedings, the Commission's reliance on the relevant exception in Regulation 1049/2001 in the context of the notification procedure under the TBT Directive was not convincing. The Ombudsman proposed, as a friendly solution, that the Commission could consider granting access to the revised draft technical regulation.

The Commission subsequently granted access to the document and thus settled the complainant's claim, but disagreed with the Ombudsman's reasoning. The Ombudsman therefore made a draft recommendation that, in principle, the Commission should give public access to revised draft technical regulations communicated under the TBT Directive, unless a MemberState expressly asks for confidentiality and supports such a request with reasons that would be capable of rebutting the presumption of accessibility.

The Commission did not accept the Ombudsman's draft recommendation. Considering, however, that the Commission published both the original draft technical regulation communicated by Greece and the latest draft, the Ombudsman found that the Commission's conduct does not constitute a general practice. He therefore closed the case with a critical remark.

Decision of the European Ombudsman closing his inquiry into complaint 53/2010/OV against the European Commission

Wednesday | 28 March 2012

The complainant, Vluchtelingenwerk Vlaanderen, a Flemish NGO that provides assistance to refugees, obtained a grant from the European Commission to carry out a project in the Democratic Republic of Congo. In September 2004, the complainant sent an e-mail and letter to the Commission, in which it requested the Commission's approval for an alternative simplified method for reporting the costs of the project, including those incurred by the local entrepreneurs involved in the project. The Commission's contact person replied as follows in an e-mail: "Hereby, ..., I give you our agreement ...". Following an ex-post audit, the Commission however decided to recover an amount of EUR 150 000 from the complainant, arguing that the relevant costs had not been reported in accordance with the provisions of the Grant Agreement. Nevertheless, according to the complainant, those costs had been reported on the basis of the alternative costs reporting method which the Commission had approved. The complainant thus complained to the European Ombudsman, alleging that the Commission had infringed the principle of legitimate expectations by failing to respect the methodology for the reporting of costs that had been agreed with it.

In its opinion, the Commission argued that the e-mail sent by its contact person did not constitute an amendment to the Grant Agreement. The Ombudsman however found that the relevant e-mail constituted an approval of the alternative cost reporting method proposed by the complainant and that it was at least arguable that the Commission had agreed to waive the relevant parts of the Grant Agreement with a view to allowing the complainant to use the alternative cost reporting system. He therefore made a proposal for a friendly solution to the Commission asking it to review, with regard to the costs incurred by the local entrepreneurs in the project, whether, and to what extent, the complainant had complied with the alternative means of justifying expenditure and, on that basis, to consider paying the complainant the corresponding amount. The Commission accepted the friendly solution proposal and stated that, for those projects where the alternative cost reporting method has been respected by the complainant, it would consider the corresponding costs to be eligible and would make an additional payment.

In May 2012, the complainant informed the Ombudsman that it had obtained a payment of EUR 104 842 from the Commission and thanked him for his intervention.