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Decision in case 1688/2015/JAP on the European Commission’s decision to recover funds from a participant in an EU project on older people and ICT (SENIOR)

Friday | 06 October 2017

The complainant, a Belgian-based non-profit organisation, took part in an EU-funded project that aimed to address issues faced by older people in using ICT solutions. A financial audit found that the system used by the complainant for recording working time was unreliable. As a consequence, the Commission sought to recover more than EUR 85 000 from the complainant.

The Ombudsman inquired into the issue and found that the auditors had recognised that the work done by the complainant on two specific ‘deliverables’ was legitimate, as was the working time involved. She thus considered that the Commission had not been justified in rejecting the personnel costs linked to this work. To address this, she made a recommendation to the Commission to reduce the amount it was seeking to recover accordingly.

The Commission fully accepted the Ombudsman’s recommendation and agreed to reduce the amount to be recovered by nearly EUR 37 000. Against that background, the Ombudsman closed the case. However, the Ombudsman continues with a separate inquiry regarding the recovery of funds in relation to the other “deliverables”.

Decision of the European Ombudsman closing her own-initiative inquiry OI/11/2015/EIS concerning the timeliness of payments by the European Commission

Tuesday | 19 September 2017

Most of the EU budget each year is allocated to funds and programmes managed by the European Commission on a shared basis with Member States. In June 2015, the Ombudsman opened an own-initiative inquiry concerning the timeliness of payments by the Commission, with a focus on payments to private contractors and beneficiaries, who are likely to suffer most as a result of late payment. This inquiry followed four earlier inquiries on the same subject.

In carrying out her inquiry, the Ombudsman considered both the Commission’s duty to ensure sound financial management, in particular by avoiding irregular or erroneous payments, and the fundamental right of contractors and beneficiaries to good administration, notably by having their payment claims handled within a reasonable period of time.

The Ombudsman requested information on the number and percentage of cases where delays in payment occurred, the extent of the delays that occurred, the sums involved and the cases where interest was paid on account of late payment. The Ombudsman also carried out an on-site inspection to get a better understanding of how the payment process works in practice.

The Ombudsman notes that the overall proportion of late payments has increased since 2013, due to two main factors. First, the current Financial Regulation, which entered into force on 1 January 2013, imposed tighter payment deadlines. Second, the EU budgetary authority (that is, Parliament and Council) limited the amount of “payment appropriations” in 2014, which is the money allocated to the institutions to pay bills during the year.

The Ombudsman welcomes the progress made by the Commission in reducing the number and value of late payments in 2015, after they had peaked in 2014. She acknowledges that the shortfall in payment appropriations was an exceptional factor beyond the Commission’s control. The Ombudsman further notes that the increased late payment averages from 2013 onwards did not mean that the Commission’s performance had deteriorated in absolute terms. At the same time, the Ombudsman emphasises that the Commission has to make significant efforts to meet the tighter legal deadlines introduced under the current Financial Regulation.

The Ombudsman’s inspection showed that the Commission closely monitors its performance in this area and has developed many good practices. However, the Ombudsman is concerned that some of the recent measures announced by the Commission were raised already in 2010 following a consultation launched by the Ombudsman in the context of a previous inquiry.

The Ombudsman therefore encourages the Commission to intensify its efforts in the areas of coordination between financial and operational checks, developing online tools, managing staff turnover to the extent possible, managing suspensions and registering invoices in a timely way. She makes a number of suggestions with this in mind.

Décision dans l’affaire 593/2016/MDC, concernant la résiliation d’un contrat de services par la Commission européenne et son absence de réponse à une lettre

Friday | 07 July 2017

L’affaire concernait la résiliation d’un contrat de services par la Commission européenne. Le plaignant affirmait que la Commission n’aurait pas répondu à ses lettres, qu’elle aurait résilié le contrat de services sans motif valable et qu’elle aurait tardé à régler les factures qui lui avaient été adressées. Il demandait également à être indemnisé pour les retards de paiements et les dommages.

La Médiatrice a mené l’enquête sur ces allégations. Pour ce qui est de la première, elle a conclu que, puisque la Commission a fini par répondre aux lettres du plaignant, la question avait été réglée. En ce qui concerne la deuxième allégation, qui porte sur la présumée résiliation du contrat sans motif valable, la Médiatrice a conclu qu'il n’y avait pas eu de mauvaise administration de la part de la Commission, puisque le contrat donnait à celle-ci le droit de le résilier à tout moment et que, en tout état de cause, la Commission avait bien fourni un motif valable de résiliation. En ce qui concerne la troisième allégation, la Médiatrice a conclu qu’une solution avait été trouvée au problème des retards de paiement des factures, puisque la Commission a finalement versé au plaignant les sommes dues pour le travail effectué et qu’elle a accepté de verser des intérêts de retard. Enfin, en ce qui concerne la demande d’indemnisation, la Médiatrice a conclu qu'il n’y avait pas lieu de faire d’enquête supplémentaire sur la question, puisque la Commission a versé au plaignant une indemnité pour le préjudice subi et que le contrat ne prévoyait aucune indemnité pour aucun autre type de dommages.

Decision in case 1064/2015/JAP on the European Commission’s rejection and recovery of costs claimed under an FP6 grant agreement

Thursday | 22 June 2017

The case concerned the Commission’s rejection and proposed recovery of certain costs related to subcontracted activities in the context of an FP6 grant agreement. Arising from the Ombudsman’s inquiry the Commission decided not to proceed with the recovery of costs totalling almost 87.000 EUR. The Commission explained that it had decided to change its original decision on the basis that the complainant had acted in good faith and in accordance with advice which the Commission had itself given.

The Ombudsman welcomed this new decision; nevertheless, she found it to have been unfortunate that for several years the complainant had the prospect of a major recovery of funds hanging over it.

Decision in complaint 2048/2014/JAP against the European Commission’s handling of the audit of a research institute based in country Z

Monday | 22 May 2017

The complainant, a research institute based in country Z, took part in an EU-funded project under the Seventh Framework Programme for Research and Technological Development.

An audit revealed irregularities with the project, leading the Commission to seek the recovery of more than 300,000 Euro from the complainant, despite clarifications for the irregularities it had provided. The complainant was not satisfied with the outcome and lodged a complaint with the European Ombudsman.

The Ombudsman inquired into the issue and found that some of the auditors' findings were flawed. Since the most crucial issue was to determine the actual start date of the project, the Ombudsman proposed as a solution that the Commission consult an expert to verify the auditors' finding in that regard or order a ‘technical audit’, as provided for in the ‘Grant Agreement’. The Commission accepted the solution, provided the costs of contracting the expert would be borne jointly by both parties. The Ombudsman asked the Commission and the complainant to agree between themselves on selecting the expert to be appointed and closed the case.

Decision of the European Ombudsman on complaint 1708/2014/JVH against the European Commission concerning a decision to reject the complainant's application to work on an EU-funded project

Thursday | 19 May 2016

In July 2014, the Commission rejected the complainant's application to work as an expert on a project in Indonesia because she had already committed to work on an EU-funded project in Liberia taking place at the same time. The complainant re-applied when the project in Liberia was delayed due to the Ebola crisis, pointing out that she was in fact available to work on the project in Indonesia.

The Ombudsman found that the Commission is entitled to request experts to be available to work exclusively on projects for specified periods. She noted that the complainant had declared that she would be available to work, on an exclusive basis, on two overlapping projects. The complainant did not explain this contradiction when she made her initial application. On the basis of the information provided, the Ombudsman considers that the Commission was correct in rejecting the complainant’s first application. With regard to the second application, the complainant did, in fact, state that the on-going Ebola crisis in Liberia meant that she was in fact free to work on the project in Indonesia. The Commission then re-examined her situation. In the Ombudsman's view, it made a fair and reasonable judgement when it concluded that the complainant was unable to guarantee her availability. Thus, the Ombudsman concludes, the Commission also did not err when it rejected her second application to work on the Indonesian project. However, it does leave questions as to how the Commission deals with the rights of experts caught up in crises such as the Ebola-outbreak.

The Ombudsman closed the inquiry with a finding of no maladministration. She suggested to the Commission that, where a project has to be suspended, it should be prepared to release any affected expert from an exclusivity commitment.

Decision Decision in case 797/2014/PL concerning the dismissal of a team leader in an EU-funded project in Central America by the EU Delegation to Nicaragua, Costa Rica and Panamá

Wednesday | 20 April 2016

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.

Decision in case OI/9/2015/NF on the termination of a grant contract by the European Commission

Wednesday | 23 March 2016

The complainant had a grant contract with the European Commission for the financing of a project in Egypt. Under that contract, the complainant had to provide a financial guarantee from a bank or financial institution established in the EU in order to secure the Commission's pre-financing of the project. After the contract entered into force, it turned out that the complainant was not able to provide the required financial guarantee. For that reason, the Commission terminated the contract.

The Ombudsman found that the Commission had complied with its contractual obligation to consult the complainant before proceeding to the contract termination. In light of the information that the complainant provided to the Commission on its financial capabilities, the Ombudsman also found that the Commission could reasonably understand that the complainant would not have been able to implement the project without any pre-financing and that, therefore, any further consultations were unnecessary.

The Ombudsman concluded that the Commission had acted lawfully and reasonably in terminating the contract with the complainant. However, the Ombudsman suggested that in future contracts the Commission consider including, in the standard contracts terms, a provision entitling the grant beneficiary to renounce the Commission's pre-financing. This would remove the obligation to provide a financial guarantee, should the beneficiary be in a position to prove that it has the financial means necessary to carry out the project. The Ombudsman also asked the Commission to make sure to always state, in a termination letter, the exact legal basis for that decision as well as the options for appealing the decision.

Decision of the European Ombudsman in case 697/2014/MG concerning the alleged duty of the European Commission to recover funds from an EU project partner

Wednesday | 17 February 2016

The case concerned the Commission's decision not to accept certain costs declared by a partner to a project funded by the EU. The Commission's decision meant that its final payment to the consortium was reduced by the sum that this partner had received by way of pre-financing. The coordinator argued that it was the Commission's duty to recover the funds incorrectly paid to the partner in question.

The Ombudsman found that the Commission had handled the issue correctly as it could have initiated a recovery only had there been a debt towards the Union. The distribution of financing among project partners is a question of a different nature, in which the Commission has no obligation to intervene. The Ombudsman therefore found no maladministration by the Commission.

Decision in case 1134/2015/TN on the European Commission's decision to declare ineligible certain costs incurred by a partner to an EU funded project

Thursday | 11 February 2016

The case concerned the Commission's decision to declare ineligible certain costs declared by a partner to an EU funded project. The Ombudsman inquired into the issue and found that the Commission's grounds for not accepting the costs in question were reasonable. The Ombudsman therefore closed the case with a finding of no maladministration.

Decision in case 721/2015/OV on the European Commission's refusal to consider dividend payments as eligible personnel costs of a project

Friday | 18 December 2015

The complainant is an SME which participated as a beneficiary in a Commission project. It remunerates its staff partly through dividend payments. When the Commission in 2014 rejected part of the complainant's personnel costs as ineligible, the complainant argued that the Commission had previously approved its remuneration model and that, therefore, it had a legitimate expectation that its personnel costs would be reimbursed accordingly. The complainant turned to the Ombudsman.

After an inspection of the Commission's file, the Ombudsman found that the Commission had not explicitly approved the complainant's remuneration model and that the conditions for legitimate expectations to exist were not fulfilled. The Ombudsman furthermore found that the Commission's position was legally correct and in accordance with the Grant Agreement. However, the Ombudsman also found that the Commission could have been more diligent and have alerted the complainant, when joining the project, that its remuneration model would not be acceptable. In a further letter to the complainant, the Commission expressed its regret to the complainant for how events had developed, but also expressed the hope that the complainant would continue its participation in the project. The Ombudsman found that there was no maladministration by the Commission in its handling of this case though it was unfortunate that the complainant understood that its remuneration model would be accepted by the Commission.

Decision in case 2432/2013/NF on the European Commission's issuing of debit notes under supply contracts entered into by the ACP Secretariat

Friday | 06 November 2015

The complainant concluded a number of supply contracts with the Secretariat of the African, Caribbean and Pacific Group of States ('ACP Secretariat') which implemented an EU-funded programme. The complainant did not meet a number of delivery deadlines and the ACP Secretariat therefore imposed penalties on the complainant. The complainant turned to the Ombudsman about the European Commission issuing debit notes for the penalties. The Ombudsman found that, when issuing the debit notes, the Commission was acting on behalf of the ACP Secretariat and the Commission did not have any discretion in this regard. The complainant had to settle any contractual dispute directly with the ACP Secretariat, which is not an EU institution, body, office or agency. The Ombudsman found no maladministration but encouraged the Commission to explain in future the role it plays in this context to avoid similar issues arising.