The case concerned the dismissal of a team leader in an EU-funded project in Central America.

The Ombudsman inquired into the issue and found that the Commission had acted reasonably by allowing the beneficiary of the project to dismiss the team leader after the contract was signed. The Ombudsman, therefore, closed the case.

The case concerned a tender procedure of the European Commission for the provision of IT management and related services. The complainant is a consortium whose bid for the contract in question was unsuccessful.

The complaint concerned the operation of the European Commission's Early Warning System (EWS), a computerised information system intended to identify 'threats' to the EU's financial interests and reputation. The EWS has five main categories of warning, ranging from W1 to W5. Certain categories of warning contain sub-categories (W1a, b, c, and d, W3a and b, and so on). The present case concerns a W3b warning. A W3b warning is issued in relation to persons who are the subject of judicial proceedings for serious administrative errors or fraud.

The complainant alleged that OLAF's request to register a warning in the EWS against the complainant was irregular, as was its refusal to lift this warning, since the complainant is not subject to any judicial proceedings.

The Ombudsman found that a factual basis for placing a person in a particular category of the EWS must exist. If not, the categorisation of persons in the EWS is devoid of any meaning. He found that OLAF's interpretation concerning the W3b warning allows for persons in comparable situations to be categorised differently. A person under the jurisdiction of, for example, the UK legal system, would continue to be classified under W2 if OLAF were to inform the UK Crown Prosecution Service of its findings, whereas a person under the jurisdiction of, for example, the Belgian legal system, would be classified under W3b if under investigation. No objective justification for such different treatment can be provided. The Ombudsman thus made a proposal for a friendly solution, asking OLAF to lift the W3b warning issued against the complainant and to analyse the information in its possession relating to the complainant in order to determine whether another warning is appropriate. OLAF failed to follow the Ombudsman's proposal. On the basis of his inquiry into the complaint, the Ombudsman closed his inquiry with a critical remark.

Summary of the decision on complaint OI/3/2008/FOR against the European Commission

The European Commission's Early Warning System ('EWS') is a computerised information system which seeks to identify "threats" to the EU's financial interests and reputation. For example, the EWS allows Commission staff involved in tender procedures to check whether any tenderers are suspected of fraud. After receiving several complaints about the operation of the EWS, the Ombudsman launched an inquiry, including a public consultation to which many stakeholders contributed. Among the concerns raised in the consultation was the fact that individuals and companies are not systematically informed that they have been listed in the EWS. Participants also argued that there was a lack of clarity on how to lodge an appeal against such a listing.

In its opinion, the Commission confirmed that entities listed in the EWS are not normally informed of this fact. It moreover acknowledged that the system has no formal appeals mechanism.

The Ombudsman concluded that the scope of certain EWS warnings is not clearly defined. He also called on the Commission to guarantee the right to be heard before any decisions to include persons or companies in the EWS are taken. Further, the right of access to the file should be respected. In addition, affected persons or companies should be informed of their right to complain to the Ombudsman or to seek judicial redress.

In its reply to the draft recommendation, the Commission stated that it aims to present a revised EWS decision in 2013. Such a revised decision will be prepared, in light both of the Ombudsman's draft recommendation and the outcome of an appeal to the Court of Justice in the Planet case (which concerns the EWS).

The Ombudsman closed his inquiry on the basis of the Commission's commitment to reform the EWS. However, he made a further remark calling on the Commission to ensure that it also takes steps to protect fundamental rights in the period before the EWS is reformed.

The complainant is a German citizen. In August 2010, he turned to the Commission and requested, in line with Regulation 1049/2001 on public access to documents, copies of certain preparatory documents concerning the Commission's 'Interpretative Communication on the application of Article 296 of the Treaty in the field of defence procurement'. The Commission refused access and argued that the entirety of the requested documents fell within the scope of the exception provided for in Article 4(1)(a) of Regulation 1049/2001 ("defence and military matters"). It went on to say that, for the same reason, partial access could not be granted either. The complainant subsequently submitted a confirmatory application for access. After extending the time period for processing his confirmatory application by 15 working days, the Commission informed the complainant that, in spite of the extended time period, it had not been able to finalise its decision.

In his complaint to the Ombudsman, the complainant alleged that the Commission failed to process his confirmatory application for access to certain documents within the time periods foreseen in Regulation 1049/2001. He claimed that the Commission should (i) deal rapidly with his confirmatory application and (ii) grant access to the documents concerned.

On 17 December 2010, the complaint was forwarded to the President of the Commission for an opinion. On 23 December 2010, the complainant informed the Ombudsman's services that the Commission, to his surprise and great joy, had granted him unlimited access to all the documents he requested. He pointed out that his request for access had been satisfied and that he considered the matter settled.

The Ombudsman thus closed the case as settled by the institution.