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Decision of the European Ombudsman closing his inquiry into complaint 1142/2008/(BEH)KM against the European Commission

Friday | 25 September 2009

In 2007, the complainant, a German citizen, wrote to the European Commission asking it to commence competition proceedings against E.ON and the Würzburg public utility company. He highlighted that the latter had not protested against price increases made by E.ON, which delivers gas to this company and also has an indirect minority stake in it.

In its reply, the Commission's Directorate-General for Competition (DG COMP) outlined that it shared the complainant's concerns about competition in the German energy markets but did not intend to open proceedings on the basis of his complaint. Further letters were exchanged before the complainant turned to the European Ombudsman.

In his complaint to the Ombudsman, the complainant alleged that the Commission failed to respect EC competition rules by not opening an investigation on the basis of his complaint. He also alleged deficiencies in the Commission's letter-handling policy.

In its opinion, DG COMP essentially argued that (i) the conduct of the Würzburg public utility company had no effect on cross-border trade and (ii) as regards the conduct of E.ON, the Commission had a discretion to prioritise other options of working towards increased competition in the German energy markets rather than those proposed by the complainant.

The Ombudsman considered that the Commission's position concerning the conduct of the Würzburg public utility company was correct. He also found that the Commission was right in arguing that it had a discretion as to whether or not to commence proceedings on the basis of a competition complaint. In the Ombudsman's view, the Commission acted within the limits of its discretion when deciding not to open an investigation regarding E.ON's conduct.

Furthermore, the Ombudsman noted that, although the Commission's reply to one of the complainant's letters was delayed, DG COMP apologised for this fact. Finally, the Ombudsman held that there were no grounds to carry out further inquiries into the Commission's handling of the complainant's other correspondence.

Decision of the European Ombudsman closing his inquiry into complaint 1270/2007/(ET)(ID)(DK)CK against the European Commission

Tuesday | 23 June 2009

The complainant is a company that formed part of a consortium which submitted an offer for a tender advertised by the European Commission. The complainant initially received an award letter. However, the tender in question was cancelled shortly after, due to irregularities in the procedure. The complainant contacted the Commission twice seeking information about the nature of the alleged irregularities. The EuropeAid Co-operation Office replied that the said irregularities concerned a possible infringement of confidentiality and impartiality, as well as a possible external influence during the evaluation procedure.

On 3 May 2007, the complainant turned to the Ombudsman, alleging that the Commission failed to provide adequate grounds for its decision to cancel the said tender procedure. It also claimed that the Commission should reinstate its initial decision or compensate it.

The Ombudsman opened an inquiry. After reaching a preliminary conclusion that the reasons provided by EuropeAid did not appear to be adequate, the Ombudsman issued a draft recommendation inviting it to provide more specific and adequate grounds for the cancellation of the tender. Furthermore, he invited EuropeAid to state clearly that the irregularities found in the tender procedure did not involve the complainant, if such a statement were factually correct.

On 16 July 2008, the Ombudsman's services carried out an inspection of the relevant confidential documents that served as the basis for the cancellation of the tender.

EuropeAid explained that the claimed breach of the tender rules concerned the dissemination of confidential information to a third person by a member of the evaluation committee. It pointed out that these allegations were corroborated by evidence, namely, reports drafted by participants in the evaluation procedure. EuropeAid further stated that it had no evidence to demonstrate the involvement of the complainant in the above irregularities.

The Ombudsman considered Europe Aid's response to be adequate and supported by the results of the inspection of documents carried out by his services. He welcomed EuropeAid's declaration and concluded that it had taken appropriate steps to implement his draft recommendation. Accordingly, he closed the case.

Decision of the European Ombudsman closing his inquiry into complaint 1566/2007/DK against the European Personnel Selection Office

Tuesday | 09 June 2009

The complainant, a Romanian citizen, wished to participate in Open Competition EPSO/AD/47/06 to recruit administrators with Romanian citizenship. On 25 October 2006, he presented himself to sit the pre-selection tests in the designated test centre in Bucharest. However, as his name did not appear correctly on the computer screen, following the instructions provided, he clicked the 'NO' button, which then terminated his participation in the competition.

In his complaint, he alleged that EPSO did not reply to his complaint of 25 October 2006 regarding the above matter, and claimed that he should be allowed to sit the pre-selection tests again.

The Ombudsman made a preliminary finding that EPSO failed to reply properly to the complainant's complaint of 25 October 2006, and also failed to allow the complainant to resit the tests. He therefore made a proposal for a friendly solution, according to which EPSO should provide the complainant with a substantive reply to his complaint of 25 October 2006 and invite him to sit the pre-selection tests again.

EPSO accepted this proposal, provided a detailed reply to the complaint of 25 October 2006, and contacted the complainant to arrange a suitable test appointment so that he could resit the pre-selection tests. However, the complainant was not satisfied with the friendly solution proposal. The Ombudsman therefore concluded that it was not possible to bring about a friendly solution.

The Ombudsman welcomed EPSO's acceptance of his friendly solution proposal and found that there was no longer any instance of maladministration by EPSO. He therefore closed the case.

Decision of the European Ombudsman closing his inquiry into complaint 244/2006/(BM)JMA against the European Investment Bank

Monday | 04 May 2009

The object of the complaint concerns the new high-speed railway project to link Madrid to the French border via Barcelona and, in particular, the segment which will run through the centre of Barcelona between the railway stations of Sants and Sagrera. In his complaint to the European Ombudsman, the complainant alleged that the EIB was wrong to finance the project, given that, in his view, an appropriate environmental impact assessment ("EIA") as required by Council Directive 85/337/EEC, had not been carried out. In particular, potential alternatives were not considered.

The EIB argued that, following a thorough review of the EIA document pertaining to the Sants and Sagrera part of the project, the Bank concluded that the EIA had been carried out correctly. The fact that alternative routes had been considered by the responsible national authorities formed part of this assessment.

After having inspected the file, the Ombudsman did not find any document which documented that review. He, therefore, made a draft recommendation that the EIB should document its review of the EIA prepared by the Spanish authorities.

In its reply to the Ombudsman's draft recommendation, the EIB noted that it had instructed its services to produce a note for the file setting out the actual status of the project. The note included an assessment of the EIA issued by the Spanish authorities.

In his decision, the Ombudsman strongly welcomed the positive attitude taken by the EIB. He then proceeded to examine whether the note for the file constituted an adequate reflection of a "thorough review" of an EIA. He concluded that the note for the file specifically referred to an "analysis of alternatives". In the Ombudsman's view, this statement expressly confirmed that the EIB had verified that the EIA took alternative options into account. The note for the file, however, did not expressly state that the EIB had verified that reasons were given in the EIA for the decision of the national authorities. Since the EIB still has the option expressly to confirm, prior to disbursement, that reasons were in fact given in the EIA for the decision of the national authorities concerning the route chosen, the Ombudsman, with a view to constructively encouraging the EIB to improve its administrative practices, made a further remark. In it he suggested that the EIB should consider recording its assessment of EIAs in a more systematic manner by using a comprehensive checklist of conditions which an EIA must comply with.