Strasbourg, 31 March 2008

Dear Mr V.,

On 12 June 2007, you made a complaint to the European Ombudsman on behalf of the Nuclear Research & Consultancy Group ("NRG") concerning the failure of the Commission to pay interest in relation to a late payment allegedly arising in the context of a PHARE(1) service contract between the Commission and NRG.

On 18 July 2007, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 12 October 2007. I forwarded it to you on 14 November 2007 with an invitation to make observations, which you sent on 16 November 2007.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The relevant facts, according to the complainant, can be summarised as follows:

The complainant is the contract manager for NRG, a company which entered into a PHARE service contract with the European Commission on 9 January 2001. The complainant states that the contract was successfully carried out by 9 January 2002. However, a number of problems arose as regards payments in relation to the contract. The complainant states that, except for a dispute in relation to the payment of a claim for interest, amounting to EUR 12 547.03, the other issues in relation to payments have been resolved.

The dispute in relation to the payment of EUR 12 547.03 arises from the fact that the Commission refuses to recognise that a request for advance payment was submitted to the Commission by NRG on 5 April 2001(2). The Commission instead considers that requests for advance payment were made on 18 September 2001 and 27 September 2001, and that therefore these dates constitute the relevant dates for the calculation of any interest on the delayed advance payment. Since these requests were paid in due time, the Commission maintains that no late interest payment arises in relation to these requests.

The Commission states, in its letter dated 8 May 2007, that, since all eligible claims have been processed, the matter is now closed. It also states that it carried out an exhaustive investigation and cannot locate in its files the request for advance payment dated 5 April 2001.

The complainant maintains that NRG did in fact send the letter dated 5 April 2001 to the Commission. It states that the Commission failed to register this letter. The complainant states that, at the time, NRG checked to see if the letter had been delivered to the Commission and that this "check" produced a positive result(3).

The complainant states that NRG can show, from its computer records, that it did create such a document at the relevant time. The complainant provided the Ombudsman with a copy of the letter of 5 April 2001. This copy was generated from its own computer files. NRG also provided computer records showing that this document had been produced at the relevant time. The complainant also provided copies of bank guarantees, issued at the relevant time. The purpose of these bank guarantees was to secure the advance payment from the Commission.

Allegation

The Ombudsman understood the complainant to allege, in summary, that the European Commission:

1. failed to deal properly with incoming mail, namely the letter from NRG dated 5 April 2001;
2. inconsistently assessed the eligibility of payment claims, in particular the claim to pay interest based on the request for advance payment submitted to the Commission by NRG on 5 April 2001.

Claim

The Ombudsman understands that the complainant claims, in summary, that the European Commission should pay EUR 12 547.03 to NRG, which corresponds to interest accruing in relation to an invoice for an advance payment submitted by NRG on 5 April 2001.

THE INQUIRY

The Commission's opinion

The Commission’s opinion can be summarised as follows:

Background

The Commission first noted that the complaint concerned the rejection, by the Enlargement Directorate-General, of a claim for overdue interest on an advance payment from 2001 concerning contract 00-0145. The Commission noted that, on 4 May 2007, the complainant made a final request to the finance unit of the Enlargement Directorate-General, asking the latter to accept and pay the claim for overdue interest from NRG. On 8 May 2007, the Enlargement Directorate-General replied to the complainant rejecting the claim.

The complaint

The Commission noted that according to the complainant the Commission had failed to register an advance payment request dated 5 April 2001 and that the Commission was obliged to pay overdue interest on it since the payment was only made in October 2001.

The Commission's comments to the complainant's argument

The Commission recalled that Article 30 of the general conditions of the contract states that "... payments shall be made within 60 days of receipt of the request for payment and shall be deemed to have been made on the date on which they are debited to the Contracting Authority's account."

The Commission also noted that Article 2 A) of the special conditions of the contract dealt with the issue of advance. Article 2 A) stipulated that "an advance up to 35% of the fees and direct expenses will be paid after the signature of the Contract and upon receipt of a written request for payment and a bank guarantee."

The Commission stated that, on 17 August 2001, Mr E. from the finance unit of the Enlargement Directorate-General informed the complainant that no payment request dated 5 April 2001, or the bank guarantees attached thereto, could be found. He asked the complainant to send the original payment request and the bank guarantees.

The Commission also noted that two advance payment requests, registered as arriving on 18 September 2001 and 27 September 2001, were paid respectively on 31 October 2001 and 12 October 2001.

The Commission's conclusions

In its conclusions, the Commission noted that the Enlargement Directorate-General registers all incoming mail in the Adonis system (the Adonis system keeps track of deadlines for replying to correspondence). In addition, all incoming invoices and payment requests are also registered in the local contract management system (CRIS). The resulting registration is communicated to the central financial system ABAC through an interface.

The Commission noted that, despite its efforts to that effect, it had been unable to find any record in Adonis or CRIS of an advance payment request from NRG having been received in April 2001. The Commission stressed that a person assigned to work especially on the complainant's dossier went through the whole documentation very thoroughly, but could not find any evidence of an advance payment request.

The Commission noted that the print out from the file management system of the complainant’s company, which shows that a modification to the payment request Word file was made by the complainant's company, does not constitute evidence that the payment request ever arrived at the finance unit of the Enlargement Directorate-General. The Commission also noted that the address used by NRG's advance payment request was not the same as the address for invoices stipulated in the contract.

The Commission concluded that, since the proven arrival dates for the advance payment requests were 18 September 2001 and 27 September 2001, which were paid on 12 October 2001 and 31 October 2001, the Enlargement Directorate-General had complied with its contractual obligations. In sum, payment was made within 60 days of the receipt of the advance payment requests. It, thus, stated that there was no basis for an overdue interest claim.

The complainant's observations

In his observations on the Commission's opinion, the complainant made the following points:

The complainant first noted his disappointment with the Commission's response. The complainant noted that the Commission disregarded the context of the case. He called upon the Commission to apply leniency and acknowledge what the complainant considered appropriate and fair business practices. The complainant noted that contracts state the "musts" and "shoulds", but do not address the "mays". The complainant again pleaded that the payment claim be recognised, taking into account the following:

1. Other items were incorrectly rejected by the Commission.
2. NRG had shown leniency to the Commission by not pursuing three other late payment interest claims, amounting to EUR 16 532.06. The complainant stated that NRG was not contractually bound to offer such leniency, but rather made a voluntary gesture in favour of the Commission.
3. NRG had a contractual right to obtain the advance payment as early as 9 January 2001. NRG, however, only issued the payment claim on 5 April 2001. The complainant noted the efforts he made to get the three bank guarantees required for advance payment. These were issued on 2 February 2001, 12 March 2001 and 13 March 2001. The complainant also noted that two advance payments were finally received on 12 October 2001 and 31 October 2001. The complainant clarified that the dispute concerned the interval between 5 April 2001 and 31 October 2001, which, he noted, was more than 60 days. The complainant also alleged that from 9 January 2001 and 31 October 2001, the Commission enjoyed the benefit of the interest on the money retained.

The complainant then made two detailed remarks.

In the first detailed remark, the complainant agreed with the Commission that the circumstantial evidence provided by NRG "does not constitute evidence that the payment request ever arrived." However, the complainant stressed that the circumstantial evidence proved that NRG actually prepared and dispatched the advance payment request of 5 April 2001. The complainant added that he had no doubt the payment claim had been sent.

The complainant noted that, similarly to the Commission, NRG applies procedures for preparing, sending and receiving correspondence. The complainant noted that NRG appreciated the information provided by the Commission on its procedures concerning the receipt of mail and invoices (that is, the systems Adonis, CRIS and ABAC). The complainant acknowledged that none of the above systems record the advance payment request of 5 April 2001. The complainant stressed, however, that this did not prove that the disputed letter did not arrive. The complainant concluded that evidently, and most unfortunately, something went awry between NRG office exit and the appropriate desk at the Commission's office.

The complainant argued that, considering the circumstantial evidence, a fair solution to the dispute would be one that does not unduly harm or benefit either side. The complainant alleged that making the requested payment of EUR 12 547.03 would be one such solution.

In the second detailed remark, the complainant agreed with the Commission's statement that the disputed advance payment request was not sent to the address stipulated in the contract. The complainant explained that this had been done deliberately because, at the time the contract was signed, during a phone conversation with Mr G., a Commission official, he had been informed that the Commission was reorganising matters, that a new officer would replace the original contracting officer and that the office would be moved. This explained why a new address had been hand-written by NRG on the contract(4). The complainant stated that this handwritten address was the address used in the cover letter for the contract.

The complainant also noted that the Commission itself had not used NRG's address as stipulated in the contract. The mail, nevertheless, was redirected by NRG to the correct NRG employee only one day later.

THE DECISION

1 Preliminary Remarks

1.1 The Ombudsman notes that, according to Article 195 of the EC Treaty, the Ombudsman is empowered to receive complaints "concerning instances of maladministration in the activities of the Community institutions and bodies". The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it(5). Maladministration may thus also be found when the fulfilment of obligations arising from contracts concluded by the institutions or bodies of the Communities is concerned.

1.2 However, the Ombudsman considers that the scope of the review that he can carry out in such cases is necessarily limited. The Ombudsman is of the view that he should not seek to determine whether there has been a breach of contract by either party, if the matter is in dispute. This question could be dealt with effectively only by a court of competent jurisdiction, which would have the possibility to hear the arguments of the parties concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact.

1.3 The Ombudsman therefore takes the view that, in cases concerning contractual disputes, he is justified in limiting his inquiry to examining whether the Community institution or body has provided him with a coherent and reasonable account of the legal basis for its actions and why it believes that its view of the contractual position is justified. If that is the case, the Ombudsman will conclude that his inquiry has not revealed an instance of maladministration. This conclusion will not affect the right of the parties to have their contractual dispute examined and authoritatively settled by a court of competent jurisdiction.

2 Allegation relating to the failure to deal properly with incoming mail

2.1 The complainant is the contract manager for NRG, a company which entered into a PHARE service contract with the European Commission on 9 January 2001. The dispute relates to the payment of EUR 12 547.03 arising from the Commission's refusal to recognise that a request for advance payment was submitted by NRG to its services on 5 April 2001. The Commission states, in its letter dated 8 May 2007, that it carried out an exhaustive investigation and could not locate in its files the request for advance payment dated 5 April 2001.

2.2 The complainant maintained that NRG sent the letter of 5 April 2001 to the Commission. It states that the Commission failed to register this letter. The complainant stated that, at the time, NRG checked to see if the letter had been delivered to the Commission. According to the complainant, this "check" produced a positive result. The complainant stated that NRG can show, from its computer records, that it did create such a document at the relevant time. The complainant provided copies of the letter of 5 April 2001 from its own files and details of its own computer records showing the document had been produced at the relevant time. The complainant also provided copies of bank guarantees, issued at the relevant time. The purpose of these bank guarantees was to secure the advance payment from the Commission.

2.3 The Ombudsman understood the complainant to allege that the European Commission failed to deal properly with incoming mail, namely, the letter from NRG dated 5 April 2001.

2.4 In its opinion the Commission recalled that Article 30 of the general conditions of the contract states that "... payments shall be made within 60 days of receipt of the request for payment and shall be deemed to have been made on the date on which they are debited to the Contracting Authority's account." Article 2 A) of the special conditions of the contract stipulates that "an advance up to 35% of the fees and direct expenses mil be paid after signature of the Contract and upon receipt of a written request for payment and a bank guarantee."

The Commission stated that, on 17 August 2001, Mr E. from the finance unit of the Enlargement Directorate-General informed the complainant that no payment request or attached bank guarantees sent on 5 April 2001 could be found.

The Commission noted that the print out from the file management system of the complainant’s company does not constitute evidence that the payment request ever arrived at the finance unit of the Enlargement Directorate-General.

The Commission also noted that the address used by NRG's advance payment request was not the same as the address for invoices stipulated in the contract.

2.5 The complainant agreed with the Commission's statement that the disputed payment claim was not sent to the address stipulated in the contract. The complainant explained that the claim in question had been deliberately sent to another address at the Commission because, at the time of the signing of the contract, during a phone conversation with Mr G, a Commission official, he had been informed that the Commission would reorganise matters, that a new officer would replace the original contracting officer and that the office would be moved. This explained why a new address had been hand-written by NRG on the contract. The complainant stated that, considering these uncertainties, it had been decided at the time to apply the address used in the contract cover letter for returning the contract after signature. The complainant also noted that the Commission itself had not used NRG's address as stipulated in the contract. The mail, nevertheless, was redirected by NRG to the correct NRG employee only one day later.

2.6 The Ombudsman finds it useful to set out the key excerpts of the General Conditions for Service Contracts Financed from the PHARE/TACIS Fund and of the Special Conditions.

Article 30 of the General Conditions deals with payment schedule. It reads as follows:

"1. Unless otherwise provided, payments shall be made within 60 days of receipt of the request for payment and shall be deemed to have been made on the date on which they are debited to the Contracting Authority's account. (...)

3. The Contracting Authority shall be bound to comply with payment periods only if requests for payment are properly presented at the address stated in the Contract.

Article 2 A) of the Special Conditions deals with the issue of advance. It reads as follows:

"An advance up to 35% of the fees and direct expenses will be paid after the signature of the Contract and upon receipt of a written request for payment and a bank guarantee."

Article 4 of the General Conditions deals with the addresses for various types of correspondence, and it establishes that:

"2. Submission of invoices and other communications concerning payments, including changes of bank account, shall be sent to:

The European Commission
SCR/D-4, TACIS Finance Team
Office: L-41 05/031
Rue de la Loi 200
B-1049 Brussels"

2.7 The Ombudsman first of all notes that principles of good administrative practice would have required the Commission to inform the complainant's company in writing of any modification of the address set out in Article 4(2) of the General Conditions. It would not be good administrative practice for the Commission to limit itself to informing a contracting party orally of any change in this address.

However, the complainant has not provided any evidence that the Commission informed him orally of an actual change of address.

Indeed, the complainant's own description of his conversation with Mr G. shows that Mr G told NRG that the Commission would "reorganise matters", that a new officer would replace the original contracting officer and that the office would be moved. It does not appear, from the complainant's own description of his conversation with Mr G, that Mr G specifically instructed NRG to use an address different from the one set out in Article 4(2) of the General Conditions.

The Ombudsman is of the view that, in any event, if NRG had doubts, after the conversation with Mr G, about the correct address to use for the submission of invoices and advance payment requests, it should have sought written reassurance from the Commission as regards the appropriate address to use for the submission of invoices and advance payment requests.

2.8 The Ombudsman also notes that if the advance payment request of 5 April 2001 had arrived at an incorrect address at the Commission, principles of good administration would have required the Commission a) to inform the complainant of the correct address within the Commission, and b) to redirect the request for advance payment to the correct address within the Commission.

In either of those circumstances, it would be reasonable to allow the Commission 60 days from the time the advance payment request was received at the correct address within the Commission in order to make the payment. In sum, the Commission cannot be held responsible for any delays in payment resulting specifically from an advance payment request being sent to the wrong address within the Commission.

The Ombudsman notes, however, that the complainant's advance payment request could only have been redirected to the correct address within the Commission if the complainant's advance payment request of 5 April 2001 had actually been received by the Commission.

2.9 In its opinion, the Commission noted that the Enlargement Directorate-General registers all incoming mail in the Adonis system. In addition, all incoming invoices and payment requests are also registered in the local contract management system (CRIS), a registration which is communicated to the central financial system ABAC through an interface. The Commission noted that, despite strenuous efforts to that effect, it had been unable to any record in Adonis or CRIS of an advance payment request from NRG having been received in April 2001. The Commission stressed that a person assigned to work especially on the complainant's dossier went through the whole documentation very thoroughly but could not find any evidence of it.

The Commission noted that the print out from the file management system of the complainant’s company does not constitute evidence that the payment request ever arrived at the finance unit of the Enlargement Directorate-General.

2.10 In his observations, the complainant agreed with the Commission that the circumstantial evidence provided by NRG "does not constitute evidence that the payment request ever arrived". However, the complainant stressed that the circumstantial evidence proved the NRG's actions in actually preparing and dispatching the payment claim of 5 April 2001. The complainant added that he had no doubt the payment claim had been sent.

2.11 The complainant noted that, similarly to the Commission, NRG applies routines for preparing, sending and receiving correspondence. The complainant remarked that NRG appreciated the information provided by the Commission on its routines concerning the receipt of mail and invoices (that is, the systems Adonis, CRIS and ABAC). The complainant acknowledged the fact that none of the above systems have a record of the complainant's payment claim coming in. The complainant stressed, however, that this was not proof that the disputed letter did not arrive. The complainant concluded that evidently and most unfortunately something went awry between NRG office exit and the appropriate desk at the Commission's office.

2.12 The Ombudsman notes that the complainant's allegation concerns the Commission’s alleged failure to deal properly with incoming mail. The fact that it may be accepted that the complainant sent the request for advance payment(6) does not prove that the Commission failed to deal properly with incoming mail. This would only be the case if the request for advance payment actually arrived at the Commission, and was subsequently incorrectly dealt with.

2.13 The Ombudsman is of the view that the circumstantial evidence produced by the complainant does not constitute evidence that the payment request ever arrived at the Commission. At most, it only supports the view that NRG sent the payment request.

2.14 The Ombudsman notes that the Commission operates a sophisticated system to register incoming mail. There appears to be no record, in this system, of the complainant's payment order. The Ombudsman also notes that the complainant does not call into doubt the operation of the Commission's mail recording system.

2.15 The Ombudsman also notes that the Commission made strenuous efforts to locate the missing advance payment request. The Commission noted, in fact, that it performed an exhaustive search for the payment order in question. This search proved fruitless. The Ombudsman commends the Commission for these efforts, which reflect the principles of good administration and promote good relations with the citizens.

2.16 The Ombudsman also notes that, in his complaint, the complainant stated that NRG checked to see if the letter had been delivered to the Commission. According to the complainant, this "check" produced a positive result. The Ombudsman, however, notes that the complainant has not provided any evidence relating to what this "check" amounted to, nor evidence of its results.

2.17 The Ombudsman, therefore, notes that the complainant has not established that the Commission failed to deal properly with incoming mail. Consequently, this allegation does not give rise to a finding of maladministration.

3 Allegation that the Commission inconsistently assessed the eligibility of the interest payment claim based on the advance payment request submitted to the Commission by NRG on 5 April 2001

3.1 The complainant also alleged that the Commission inconsistently assessed the eligibility of payment claims, in particular the claim to pay interest based on the request for advance payment submitted to the Commission by NRG on 5 April 2001.

3.2 In its opinion, the Commission concluded that, since the proven arrival dates for the advance payment requests were 18 September 2001 and 27 September 2001, and these advance payment requests were paid on 12 October 2001 and 31 October 2001, the Enlargement Directorate-General had complied with its contractual obligations. In sum, it made the payments within 60 days of receipt of the payment request. It, thus, stated that there was no basis for an overdue interest claim.

3.3 The Ombudsman notes that Article 30 of the General Conditions for Service Contracts Financed from the PHARE/TACIS Fund states that:

"5. If the time-limits for payments are exceeded, and the Contract has not given rise to any claim, the Contractor shall be entitled to interest calculated pro rata on the basis of the number of calendar days by which payment is delayed, at the interest rate applied by the European Monetary Institute, as published in the Official Journal of the European Communities for the month in which the payments is made, increased by 1%. This indemnity is exclusive".

3.4 The Ombudsman considers the rule enunciated in Article 30(5) of the General Conditions to be a penalty clause. According to the terms of the contract, the imposition of this penalty can only be justified if the Commission received the payment request and failed to honour it within 60 days. If the Commission did not receive the advance payment order, it should not be required to make a penalty payment to NRG.

3.5 The Ombudsman, however, notes that, as concluded in Section 2 above, despite strenuous efforts by the Commission itself to assist in the search for the payment request, it has not been shown that the advance payment request of 5 April 2001 ever arrived at the Commission.

3.6 In its observations, the complainant argued, in relation to his claim for payment, that the Commission should apply leniency and acknowledge what the complainant considers to be appropriate and fair business practices. The Ombudsman understands that the complainant asks the Commission to be flexible, in light of the circumstantial evidence put forward by him.

In this context, the Ombudsman has considered it useful to verify whether the Commission has a margin of flexibility that it could have exercised in favour of NRG, first, in relation to making the advance payment and, second, in relation to making the penalty payment.

3.7 The Ombudsman notes that the Commission is obliged to respect the rules contained in the Financial Regulation(7) and in the Implementing Rules of the Financial Regulation(8). Article 81(1) of the Financial Regulation, which deals with payments, states that payment shall be made "on production of proof that the relevant action is in accordance with the provisions of the basic act or the contract (...)". Further, Article 106 of the Implementing Regulation of the Financial Regulation establishes that a "payment request is not admissible if at least one essential requirement is not met".

3.8 Article 81 of the Financial Regulation and Article 106 of the Implementing Rules clearly provide that any payment can be made only if the essential requirements provided for in the contract are met. The Ombudsman notes that, according to Article 2 A) of the Special Conditions of the contract between the Commission and the complainant, the essential requirements necessary for payment were i) the advance payment request and ii) the relative bank guarantees. The Ombudsman considers that the above articles, in conjunction with Article 2 A) of the Special Conditions of the contract, limit the Commission's discretion.

3.9 The Ombudsman further recalls that the purpose of the bank guarantees is expressly indicated in Article 102 of Financial Regulation, which states that:

"The contracting authority may and, in certain cases provided for in the implementing rules, must require contractors to lodge a guarantee in advance in order to:

(a) ensure full performance of the contract,

(b) limit the financial risks connected with payment of pre-financing".

The Ombudsman also recalls that Article 152 of the Implementing Rules, which deals with pre-financing guarantees, establishes that a "guarantee shall be required in return for the payment of pre-financing exceeding EUR 150 000."

3.10 The Ombudsman notes that the advance payment order of 5 April 2001 was for a sum exceeding EUR 150 000(9). Therefore, the Commission was obliged to withhold payment until it received these bank guarantees. The Ombudsman notes that the Commission did not receive the bank guarantees until September 2001. The Ombudsman concludes that the Commission had no margin of discretion as regards making the advance payment before it received the bank guarantees in September 2001.

3.11 As regards whether the Commission has a margin of discretion in relation to making the penalty payment itself, the Ombudsman notes that Article 81 of the Financial Regulation also applies to penalty payments. As noted above Article 81 of the Financial Regulation states that payment shall be made "on production of proof that the relevant action is in accordance with the provisions of the basic act or the contract". Absent any proof that the Commission received a request for payment, and then failed to pay it, the Ombudsman agrees that the Commission had no margin of discretion as regards its decision to refuse to make such a penalty payment.

3.12 The complainant also argues that his claim should be sustained because, from 9 January 2001 and 31 October 2001, the Commission enjoyed the benefit of the interest on the retained expenditure. The Ombudsman understands that the complainant argues that the Commission somehow unjustly enriched itself at the cost of the complainant by enjoying the benefit of interest on the amount retained over the relevant period.

3.13 The Ombudsman notes the Commission could not be found to have "unjustly" enriched itself as a result of retaining funds in circumstances in which the Commission was legally obliged to retain such funds, in particular because it had not received the appropriate bank guarantees from NRG. In any event, the Ombudsman is not convinced that a public body, such as the Commission, "enjoys the benefit" of interest on Community funds.

3.14 The Ombudsman finally notes that the complainant states that NRG had shown leniency to the Commission by not pursuing three other alleged late payment interest claims, amounting to EUR 16 532.06. The Ombudsman notes that these facts fall outside the scope of the present inquiry, which only concerns the alleged failure of the Commission to pay, in due time, the advance payment request of 5 April 2001. In any event, the Ombudsman is of the view that the fact NRG may have waived other claims for interest for late payment against the Commission does not affect the analysis of whether a right to receive interest for late payment exists in relation to the advance payment request of 5 April 2001.

3.15 In light of the above, the Ombudsman concludes that the second allegation does not give rise to a finding of maladministration. As a consequence, he also finds that the complainant's claim must be rejected.

4 Conclusion

In light of the conclusions set out above, the Ombudsman find no maladministration in relation to the allegations and claim made by the complainant. The Ombudsman therefore decides to close the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Poland and Hungary: Assistance for Restructuring their Economies Programme.

(2) From the documents submitted by the complainant, the Ombudsman gathers that the advance payment request was for EUR 225 707.

(3) It is not stated, in the complaint, how this "check" was carried out.

(4) The Ombudsman notes that in the copy of the contract provided by the complainant, a handwritten address at the Commission appears alongside the address at the Commission referred to in the contract.

(5) See the European Ombudsman's Annual Report 1997, p. 22.

(6) The Ombudsman notes that the fact that the complainant sent the request for advance payment, along with the necessary bank guarantees, does not appear to be disputed by the Commission.

(7) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, Official Journal L 248, of16.9.2002, p. 1 - 48, as amended.

(8) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, Official Journal L 357, of 31.12.2002, p.1 - 71.

(9) From the documents submitted by the complainant, the Ombudsman gathers that the advance payment request was for EUR 225 707.