THE BACKGROUND TO THE OWN-INITIATIVE INQUIRY

Factual background

1. On 20 March 1996, Internationaler Hilfsfonds e.V. ("IH", a German NGO, applied to the European Commission's Directorate-General for Humanitarian Aid ("ECHO"), requesting to be allowed to sign the 'Framework Partnership Agreement' ("FPA"). As a general rule, ECHO carries out its humanitarian work with partner agencies that have signed the FPA, which defines the roles, the rights and the obligations of the partners and the legal provisions that are applicable. This allows ECHO to proceed quickly without having to verify each time the eligibility of an implementing organisation.

2. IH's application was rejected on 19 July 2001.

3. The way in which the Commission handled this application was criticised by IH and ultimately gave rise to two complaints lodged by IH (complaints 1702/2001/GG and 2862/2004/GG) and an own-initiative inquiry (OI/4/2005/GG). Further details on the background are set out in the Ombudsman's decisions on these cases, notably the decision concerning own-initiative inquiry OI/4/2005/GG[1].

Complaint 1155/2006/GG

4. On 11 April 2006, IH submitted a complaint to the Ombudsman (complaint 1155/2006/GG) that concerned an internal note which had been drawn up by the Commission on 11 September 2001 and which concerned IH.

5. In this note, one of ECHO's heads of units, informed the heads of four other ECHO units that her unit had been contacted by another Commission service, the EuropeAid Co-operation Office ("AIDCO"), which had informed it about (a) certain problems it had with IH in relation to a contract and (b) the fact that AIDCO had therefore decided to terminate this contract with IH and to recover EUR 37 741 out of an advance payment of EUR 50 902. Copies of the relevant documents that ECHO had received from AIDCO were attached to the note.

6. The author of this note added that IH had been pressing ECHO for some years to sign the FPA and that it had "recently attacked ECHO for misadministration [sic] in the selection procedure of partners, lack of transparency and discrimination". Copies of its correspondence on this issue with IH were attached to the note.

7. The author of this note concluded by informing the addressees of the note that she "would be grateful if you would ensure that your staff is informed of the situation so that we can avoid any involvement with this NGO."

8. IH also referred to a letter written by the same person to Mr Struan Stevenson MEP on 6 November 2001. In this letter, the official concerned submitted that, by refusing to submit to an audit, IH had "excluded itself from the process" for signing the FPA. The official added the following remark: "Should Internationaler Hilfsfonds agree to submit to an audit on its premises, ECHO will reconsider its application, and only under these circumstances will [it] be able to decide on the NGO's eligibility."

9. According to IH, these documents showed that the Commission had orchestrated a discriminatory behaviour behind its back. IH also alleged that by omitting to mention the fact that it had decided to suspend IH (as evidenced by its note of 11 September 2001), the Commission had lied to and deceived the MEP. In IH's view, the Commission had also deceived the Ombudsman.

10. IH noted that it had brought the issue to the Commission's attention in a letter sent on 10 April 2006. In this letter, IH pointed out that it had only recently found out about this note.

11. Both the complaint and IH's letter of 10 April 2006 to the Commission to which the complaint referred raised a considerable number of issues. The complaint alone referred to six articles of the European Code of Good Administrative Behaviour that, in IH's view, had been violated (Articles 5, 6, 7, 11, 16 and 18). IH also alleged that the information concerning the AIDCO case that was set out in the note of 11 September 2001 and in the AIDCO documents themselves was wrong.

12. However, IH subsequently informed the Ombudsman that, in late April 2006, it had submitted the same facts to the Court of First Instance. The Ombudsman, therefore, informed IH that he had to reject its complaint on the basis of Article 195 of the EC Treaty pursuant to which the Ombudsman may not deal with a complaint where the relevant facts are the subject of legal proceedings.

Ccomplaint 1434/2006/GG

13. On 15 May 2006, IH informed the Ombudsman that it had decided to withdraw the application that it had lodged with the Court. In a letter sent the same day, IH renewed its complaint to the Ombudsman. Its letter of 15 May 2006 was, therefore, registered as a new complaint (complaint 1434/2006/GG).

The Ombudsman's approach

14. The Ombudsman considered that it was neither feasible nor practicable to try and deal with all the issues that IH had raised in its complaint, some of which appeared to concern other inquiries that were either pending or had already been concluded.

15. In the Ombudsman's view, the core of IH's case could be summarised as follows:

The complainant in essence alleges that it emerges from ECHO's internal note of 11 September 2001 that the Commission decided, without hearing the complainant, to blacklist it on the grounds that it had raised allegations of maladministration against the Commission. In the complainant's view, the Commission thereby acted in a discriminatory, disproportionate, abusive and unfair way. The complainant further alleges that, by omitting to disclose this decision, the Commission deceived both the member of the European Parliament, to whom it had written on 6 November 2001, and the European Ombudsman.

16. The Ombudsman therefore asked the Commission for an opinion on these allegations.

The results of the Ombudsman's inquiry

17. In its opinion, the Commission submitted that IH had received a copy of the relevant note on 15 January 2002, when it had been granted access to the Commission's file. In the Commission's view, the complaint should, therefore, be declared inadmissible, in accordance with Article 2(4) of the Ombudsman's Statute.

18. In its observations, IH confirmed that it had received a copy of the note of 11 September 2001 already in January 2002. It stressed, however, that, at the time, it had failed to grasp the significance of this note.

19. Article 2(4) of the Ombudsman's Statute provides that a complaint "shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint".

20. Complaint 1434/2006/GG was based on the contents of the note of 11 September 2001. However, and as IH had confirmed in its observations on the Commission's opinion, IH had obtained a copy of this note already in January 2002. The Ombudsman considered that cases were conceivable where the relevant point in time triggering the deadline foreseen by Article 2(4) of the Ombudsman's Statute is not the moment when a copy of the relevant document is obtained, but the moment when a complainant realizes that this document constitutes (at least in his view) evidence of maladministration. This could, for instance, be the case where the document concerned is voluminous, detailed and difficult to understand and where the complainant could not be expected to examine it immediately and thoroughly upon obtaining a copy thereof.

21. The Ombudsman noted, however, that the text of document at issue in the present case covers less than half a page and would not appear to be difficult to understand.

22. In these circumstances, the Ombudsman considered that the Commission's objection was justified and that the complaint needed to be declared inadmissible. The Ombudsman found it appropriate to point out that it was through the Commission's opinion and the complainant's observations that he had become aware of the fact that the deadline set out in Article 2(4) of his Statute had not been respected.

23. The Ombudsman therefore closed his inquiry into complaint 1434/2006/GG.

24. However, given the seriousness of the allegations raised by IH the Ombudsman considered that they should be examined in an own-initiative inquiry. It appeared useful to note that Article 2(4) of the Ombudsman's Statute does not apply to own-initiative inquiries.

Further considerations

25. In its opinion on complaint 1434/2006/GG, the Commission, whilst taking the view that the complaint was inadmissible, had also set out its views as regards the substance of IH's allegations. IH had been given, and made use of, the possibility to make observations on this opinion.

26. The Ombudsman, therefore, considered that there was no need to ask the Commission for a further opinion within the framework of the present own-initiative inquiry. Instead, the results of the inquiry into complaint 1434/2006/GG could directly be used for the purposes of the present own-initiative inquiry.

27. Given that the comments made by the Commission and IH as regards the admissibility of complaint 1434/2006/GG are not relevant for this new inquiry, they do not need to be set out in the following text.

THE SUBJECT MATTER OF THE INQUIRY

28. The present inquiry concerns the allegations that were raised by IH in complaint 1434/2006/GG.

THE INQUIRY

29. On 14 November 2007, the Ombudsman addressed a draft recommendation to the Commission.

30. On 27 November 2007, IH wrote to the Ombudsman in order to express its gratitude for the approach adopted by him.

31. On 11 December 2007, the Ombudsman informed IH that, further to its requests to that effect, a copy of the draft recommendation had been forwarded to the Presidents of the European Court of Justice and of the European Parliament.

32. On 31 January 2008, IH criticized the way in which the Ombudsman had presented his findings and asked for certain corrections to be made. This criticism and this request were rejected by the Ombudsman in his reply of 26 February 2008. On 5 March 2008, IH informed the Ombudsman that it did not agree with him but that it would revert to the issues concerned in its observations on the Commission's detailed opinion.

33. The Commission sent its detailed opinion on 30 April 2008. This opinion was forwarded to IH for its observations, which it sent on 1 and 12 December 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Preliminary remarks

34. Before addressing the substance of the present complaint, a preliminary issue needs to be considered.

35. In its letter of 31 January 2008, IH expressed the view that certain passages of the Ombudsman's draft recommendation in the present case and of the summary of complaint 1874/2003/GG[2], which is contained in the Ombudsman's annual report for 2004, should be corrected.

36. The relevant paragraphs are the following:

(1) 'Background' part of the section of the draft recommendation in case OI/3/2007/GG setting out the relevant facts (p. 2):

"In this note, [...], one of ECHO's heads of units, informed the heads of four other ECHO units that her unit had been contacted by another Commission service, the EuropeAid Co-operation Office ('AIDCO'), which had informed it about (a) certain problems it had with IH in relation to a contract and (b) the fact that AIDCO had therefore decided to terminate this contract with IH and to recover EUR 37 741 out of an advance payment of EUR 50 902. Copies of the relevant documents that ECHO had received from AIDCO were attached to the note."

(2) Section of the draft recommendation in case OI/3/2007/GG setting out the Commission's opinion (p. 5):

"AIDCO informed ECHO of the problems it was having with IH (unilateral change of partner organisations in violation of the contract, severe lack in reporting) which had led to its decision to terminate the contract and recover EUR 37 741 out of EUR 50 902."

(3) Point 1.3 of the 'Decision' part of the draft recommendation in case OI/3/2007/GG:

"On 11 September 2001, [...], one of ECHO's heads of unit, wrote an internal note concerning IH. In this note, she informed the heads of four other ECHO units that her unit had been contacted by another Commission service, the EuropeAid Co-operation Office ('AIDCO'), which had informed it of 'the problems AIDCO is having with this NGO (unilateral change of partner organisations in violation of the contract, severe lack in reporting)' and of the fact that AIDCO had, therefore, decided to terminate a contract with IH and to recover EUR 37 741 out of an advance payment of EUR 50 902."

(4) Summary of decision 1874/2003/GG in the Ombudsman's annual report for 2004 (p. 85):

"A non-governmental organisation (NGO), working in the field of humanitarian aid, conducted a project in Kazakhstan that was co-financed by the Commission. However, after conducting a monitoring mission, the Commission decided to cancel the contract and asked the NGO to reimburse nearly EUR 38 000."

37. In its letter of 31 January 2008, IH accused the Ombudsman of thus having presented "impertinent lies" by the Commission. IH submitted that, as evidenced by the Ombudsman's own decision in case 589/2002/GG, it had acted entirely properly as regards the relevant project. IH submitted that "the ongoing one-sided presentation of facts is not an accident..."

38. In his reply of 26 February 2008, the Ombudsman stated his position concerning these requests and accusations in the following terms:

39. The above-mentioned citations from the draft recommendation in the present case clearly reflected the views of the Commission, and not of the Ombudsman. The relevant passage in the summary of case 1874/2003/GG was simply a fact, since the Commission did indeed ask the complainant to pay back the said amount.

In his inquiry in case 589/2002/GG, the Ombudsman took the view that the Commission's approach in that case could constitute maladministration. He therefore made a proposal for a friendly solution, according to which the Commission should consider reviewing its decision to ask IH to pay back the sum of EUR 37 741.07. The Commission accepted this proposal and entered into discussions with IH. In his decision of 21 March 2003 on complaint 589/2002/GG, the Ombudsman noted that the Commission had expressed its willingness to abandon its claim and that IH had, in the meantime, sent a global financial report to the Commission and proposed possible dates for the audit that the Commission had requested. In these circumstances, the Ombudsman took the view that a friendly solution to the complaint had been agreed between the Commission and IH. The Ombudsman therefore closed his inquiry. He noted, however, that IH was free to renew its complaint if the friendly solution were not be satisfactorily implemented.

In his decision in case 589/2002/GG, the Ombudsman did not therefore reach a final conclusion on the substance of the case.

By letter dated 6 January 2004, IH informed the Ombudsman that the negotiations with the Commission had not led to a successful conclusion. IH therefore asked the Ombudsman to renew his inquiry into its complaint. This letter was registered as a new complaint (complaint 49/2004/GG). Having conducted a thorough inquiry into this case, the Ombudsman concluded that there appeared to be no maladministration by the European Commission. He therefore closed the case.

40. In his reply of 28 February 2008, the Ombudsman took the view that, in view of the above, the requests submitted by IH in its letter of 31 January 2008 were therefore unfounded.

41. The Ombudsman furthermore rejected the insinuation contained in IH's letter that he had presented his findings in a biased way.

B. The alleged blacklisting of IH by the Commission

Arguments presented to the Ombudsman

42. IH in essence alleged that it emerged from ECHO's internal note of 11 September 2001 that the Commission decided, without hearing IH, to blacklist it on the grounds that it had raised allegations of maladministration against the Commission. In IH's view, the Commission thereby acted in a discriminatory, disproportionate, abusive and unfair way.

43. In its opinion, the Commission stressed that it was important to clarify the nature of the note of 11 September 2001 and to interpret it in the light of its factual and temporal context. The Commission submitted that the note of 11 September 2001 was an internal document informing other heads of unit at ECHO of the grounds for concern regarding IH that had been expressed at a given moment in time. It added that ECHO's mandate was primarily to save and preserve lives through the most reliable implementing partners. Information from other Commission services and ECHO itself casting doubt on the financial and operational capacities of a given NGO could not be withheld from other units. The Commission further submitted that the regular exchange of information within its services had to be seen as one mechanism assuring sound financial management and financial risk control. In view of the above, the Commission took the view that the note of 11 September 2001 could not be presented as a Commission decision or an order to other services of ECHO to blacklist IH, on the grounds that it had raised allegations of maladministration against the Commission.

44. The Commission also submitted that IH could not substantiate any allegation of blacklisting, as it had not submitted any project proposal to ECHO since June 1996. Moreover, IH had not applied to sign the new FPA in 2004, after the expiry of the previous FPA in 2003.

45. The Commission considered that in these circumstances, IH had failed to explain how the Commission could have acted in a discriminatory, disproportionate, abusive and unfair way towards it.

46. In its observations, IH submitted that since the hierarchical structure of ECHO did not allow the relevant official to become active of her own volition, it was clear that the note of 11 September 2001 had been preceded by a decision to boycott IH that had been adopted by the Directors or the Director-General of ECHO. In IH's view, it was impossible to assume that the official concerned might have taken a decision of such importance on her own and without the agreement of her superiors.

The Ombudsman's assessment leading to the draft recommendation

47. Good administrative practice requires that Community institutions and bodies abstain from discrimination, ensure that the measures they take are proportional to the aim pursued, avoid abusing their powers and act fairly (see Articles 5, 6, 7 and 11 of the European Code of Good Administrative Behaviour[3]).

48. The Ombudsman considered that it was indeed necessary, as the Commission has suggested, to examine the nature and the context of the note of 11 September 2001.

49. From an examination of this note, it emerged that its author intended to inform other units of ECHO of certain concerns in relation to IH. The Ombudsman agreed that the Commission's services must be able to exchange information that might be relevant for the work they carry out between themselves. In the Ombudsman's view, the official concerned was, therefore, entitled to forward to other units within ECHO information she had received (from AIDCO) or which she already possessed (as regards IH's application to sign the FPA). In its observations, IH has submitted that the information set out in the relevant note was not correct. The Ombudsman considered, however, that there is no need for him to deal with this issue in the present inquiry. Indeed, it is clear that ECHO's note of 11 September 2001 does not limit itself to the provision of information.

50. In the final paragraph of the relevant note, the official concerned informed the addressees of the note that she "would be grateful if you would ensure that your staff is informed of the situation so that we can avoid any involvement with this NGO." It was clear that the author of the relevant note expected its addressees to take certain action and that this action should have as its result that ECHO could avoid "any involvement" with IH. In the Ombudsman's view, it could not thus be seriously argued that the note of 11 September 2001 merely informed other services of ECHO of certain facts.

51. In IH's view, the relevant passage constitutes a "decision" taken by the Commission. The Ombudsman noted that the Commission has objected to this interpretation and has submitted that the note can be interpreted neither as a decision nor as an order to other services of ECHO. It is true that, upon a literal reading, the relevant note does not refer to any decision taken by the Commission or any instruction given or to be given to other units of ECHO. However, it is abundantly clear that the result that the author of the note wished to achieve was that the units to which her note was addressed would not enter into any engagements with IH. It is further clear that the author of the note intended to adopt the same approach as regards her own unit. In the Ombudsman's view, it was thus clear that this note did indeed serve the purpose of blacklisting IH in so far as ECHO was concerned.

52. It was true that, from a legal point of view, the author of the note, a head of one of ECHO's units, would not appear to have had the power to impose her views on the heads of ECHO's other units to whom she addressed her note. However, the Ombudsman considered that there was no need to speculate, as IH has done in its observations, about any possible decisions by the author's hierarchical superiors that may or may not have preceded this note. The fact remained that the head of one of ECHO's units clearly informed the heads of other units of ECHO that she wished to see IH to be effectively blacklisted and that she obviously expected her request to that effect to be complied with by the addressees of her note. The Ombudsman further noted that the Commission had not referred to any objections that might have been raised by the addressees of the note or by the author's hierarchical superiors. On the contrary, the Commission's opinion clearly suggests that the Commission continues to believe that the official concerned acted correctly by sending this note to her colleagues at ECHO.

53. The Ombudsman noted that the Commission has not submitted that the 'problems' with IH to which the note of 11 September 2001 referred would have entitled it to blacklist IH. It should be noted that these problems were effectively limited to a dispute concerning a specific contract concluded with IH by AIDCO and a difference of opinion as regards the appropriateness of an audit proposed by ECHO. In the Ombudsman's view, there was nothing to suggest that these facts could have entitled ECHO to refrain from any involvement with IH in the future.

54. In addition to that, it should be noted that the decisive final paragraph of the note of 11 September 2001 is immediately preceded by a paragraph referring to the fact that IH had recently raised allegations of maladministration against ECHO. The content and the structure of the note of 11 September 2001 would appear to indicate that these allegations were a central factor leading the official concerned to ask her colleagues to inform their units about IH, so as to enable ECHO to "avoid any involvement with this NGO". However, the Ombudsman cannot accept that a Community institution or body disadvantages an NGO simply on the grounds that it has complained about maladministration. Besides, it should not be forgotten that the Ombudsman's inquiries into ECHO's handling of IH's application to sign the FPA have confirmed that there were indeed serious instances of maladministration.

55. As regards the Commission's argument that IH had not proven that it had been blacklisted, since it had not submitted any project proposals to ECHO since 1996, the Ombudsman found it necessary to state that he considered this argument surprising and that he considered that it completely misses the point. It emerges clearly from the note of 11 September 2001 that the official concerned did not wish ECHO to have any involvement with IH and that she requested the heads of other units of ECHO to act accordingly. In such circumstances, it was, therefore, extremely difficult to imagine how any project proposals that would have been submitted by IH could have been successful.

56. In view of the above, the Ombudsman considered that ECHO had failed to comply with the duty to refrain from discrimination, since it blacklisted IH mainly, or at least also, because of the fact that it had raised allegations of maladministration against the Commission. He further considered that ECHO resorted to a measure that was clearly disproportionate to any concerns it might have had as regards IH. The Ombudsman also considered that ECHO behaved unfairly in acting as it did. Finally, the Ombudsman could not but conclude that ECHO abused its powers in the present case by blacklisting an NGO without good cause.

C. The alleged deception of an MEP and of the Ombudsman

Arguments presented to the Ombudsman

57. IH alleged that, by omitting to disclose its decision to blacklist it, the Commission deceived both the member of the European Parliament, to whom it had written on 6 November 2001, and the European Ombudsman.

58. In its opinion, the Commission submitted that IH's allegation was not a fact but a personal interpretation of the facts. It added that this was a very serious and grave allegation not only against the Commission but also against individual civil servants. The Commission submitted that, in light of the nature and content of the note of 11 September 2001, ECHO had not considered that it was relevant for the reply that was sent to the MEP. It added that it could not, therefore, agree with IH's allegation that it had deceived the MEP, to whom it had written on 6 November 2001, and the Ombudsman.

The Ombudsman's assessment leading to the draft recommendation

59. The Ombudsman considered that he could be brief as regards this allegation. The letter to Mr Stevenson MEP sent by the official concerned on 6 November 2001 clearly stated that it would reconsider IH's application to sign the FPA on the sole condition that IH accepted to submit to an audit. However, the very same person had made it clear only two months previously, in her note of 11 September 2001, that she wished ECHO not to have "any involvement with this NGO". It was, therefore, extremely difficult to see how any new application by IH could have been successful, even if the latter had agreed to an audit. The Commission has not submitted or established that the official concerned had changed her mind or that ECHO had rejected the approach set out in her note of 11 September 2001 by the time the letter to Mr Stevenson MEP was sent on 6 November 2001. ECHO's letter of 6 November 2001 thus created the impression that the absence of an audit was the only possible problem that prevented an examination of a new application by IH, without disclosing the fact that the sender of the letter had already made it clear that she did not wish ECHO to get involved with this NGO at all.

60. In these circumstances, the Ombudsman found himself compelled to conclude that the letter of 6 November 2001 was indeed misleading and prone to deceive the MEP concerned.

61. As regards the second part of IH's allegation, regard should be had to the fact that the Ombudsman's inquiries in previous cases concerned the handling of IH's application to sign the FPA until the moment when this application was rejected by ECHO on 19 July 2001. Although it would clearly have been useful if the Ombudsman had had knowledge of the note of 11 September 2001 in these inquiries, the Ombudsman considered that there was not enough evidence to allow him to arrive at the conclusion that ECHO deceived him as regards this note.

D. The draft recommendation

62. In view of his inquiries into the present case, the Ombudsman arrived at the conclusion that the Commission had committed serious instances of maladministration both as regards ECHO's note of 11 September 2001 and ECHO's letter to Mr Stevenson MEP of 6 November 2001.

63. In its original complaint and in its observations, IH did not raise any precise claims. In the Ombudsman's view, however, a formal apology to both IH and the MEP concerned was the minimum that could be expected from the Commission in such circumstances. The Ombudsman took the view, however, that the Commission should also consider whether any further action was necessary to prevent such instances of maladministration from arising in the future.

64. In view of the above, the Ombudsman made the following draft recommendation to the Commission, in accordance with Article 3(6) of the Statute of the Ombudsman:

The Commission should apologize, both to IH and to Mr Struan Stevenson MEP, for the serious instances of maladministration that it committed as regards ECHO's internal note of 11 September 2001 and ECHO's letter to the MEP of 6 November 2001. It should also consider whether any further action is necessary to prevent such instances of maladministration from arising in the future.

E. The Commission's reaction to the draft recommendation, IH's comments thereon and the Ombudsman's assessment thereof

Arguments presented to the Ombudsman after the draft recommendation

65. In its detailed opinion, the Commission regretted that it had not been given the opportunity to submit observations in the framework of the Ombudsman's own-initiative inquiry OI/3/2007/GG.

66. As regards the substance of the case, the Commission regretted the sentence in ECHO's note of 11 September 2001, which could be interpreted erroneously. The Commission submitted that no element supported the allegation of blacklisting and stated that it wished to reassure the Ombudsman that this technique was never applied to IH or other NGOs.

67. Concerning the letter to the MEP, the Commission stated that it could not agree with the Ombudsman's conclusion because it considered its statements in the said letter to be truthful, namely, that IH refused to be subjected to an audit, which, however, was a necessary precondition for deciding upon an applicant's eligibility for signing the FPA.

68. In its observations, IH made detailed comments concerning a large number of issues. These comments are examined below.

Final assessment by the Ombudsman

69. First of all, it should be noted that several of IH's observations are directed at the Ombudsman's draft recommendation, and not at the Commission's reply thereto. This is a most unusual situation. In his draft recommendation, the Ombudsman found that there had been serious maladministration on the part of the Commission. However, IH considers that the Ombudsman should have gone even further in several respects. It also criticizes certain aspects of the draft recommendation. These comments therefore need to be addressed.

The assessment of IH's comments on the draft recommendation

70. IH criticized the fact that the draft recommendation did not mention the role that the Commission's Legal Service had played. In IH's view, there had been a concerted defamatory action carried out under the guidance of the Legal Service.

71. The Ombudsman considers it useful to note that the present inquiry concerns a note drafted by a head of unit in ECHO and a letter sent by ECHO to an MEP. There is no element whatsoever to suggest that the Commission's Legal Service made or advised ECHO to prepare these documents.

72. IH suggested that the Ombudsman refrained from discussing the involvement of the superiors of the official concerned since he did not wish to offend the Commission. The Ombudsman considers this accusation to be entirely unfounded. For the reasons already mentioned (see point 52 above), there was no need for the Ombudsman to conduct further inquiries concerning the issue of the possible involvement of the superiors of the official concerned. The Ombudsman continues to believe that this approach is correct.

73. IH insisted that there had been fraud, and that this fraud had been perpetrated by ECHO acting in unison with DG VIII, AIDCO, the DZI and the German Foreign Office. According to IH, it was to be asked why the Ombudsman invariably acted on behalf and in the interest of the Commission when it came to examining issues that were embarrassing for the Commission. IH also submitted that the Ombudsman was on the Commission's side or tried to protect the latter.

74. The Ombudsman can only regret that IH has thus made entirely unwarranted allegations against him. Article 195(3) of the EC Treaty stipulates that the Ombudsman shall be completely independent in the performance of his duties. In the Ombudsman's view, the approach he has adopted in the present case shows beyond reasonable doubt that he strictly abides by this duty. The Ombudsman must therefore resolutely reject IH's suggestions that he was biased when dealing with its complaints or that he otherwise failed to comply with his duties. In case IH should wish to maintain these accusations, the Ombudsman could only recommend that they be submitted to the European Parliament, to which the Ombudsman reports, or to the Community courts. The Ombudsman is confident that his work on the inquiries concerning IH will withstand scrutiny by either of these institutions and by the public at large.

75. Moreover, the Ombudsman considers that IH's accusations are contradicted by the results of his assessment of the present case. It should be recalled that, in his draft recommendation, the Ombudsman found that the Commission had committed serious instances of maladministration both as regards ECHO's note of 11 September 2001 and ECHO's letter to Mr Stevenson MEP of 6 November 2001.

76. IH submitted that the Ombudsman prevented it from having access to ECHO's file. According to IH, ECHO's note of 11 September 2001 must have been preceded by a substantial exchange of notes or letters. IH therefore called upon the Ombudsman to declare the Commission's refusal to disclose the secrets that had been exchanged between ECHO, DG VIII and AIDCO to constitute an instance of maladministration.

77. The Ombudsman considers it useful to underline that the present inquiry concerns the interpretation of ECHO's note of 11 September 2001 and of its subsequent letter to an MEP. Accepting IH's request would mean that the scope of the present inquiry would be enlarged considerably so as to cover issues of access to documents. The Ombudsman does not consider that this would be appropriate. Including further issues in the inquiry would mean that the Commission would need to be invited to submit a further opinion concerning these new issues. IH's request would thus further delay the conclusion of the present inquiry. Moreover, the Ombudsman has already had to deal with complaints submitted by IH concerning the handling of requests for access it had submitted to the Commission. The inquiries concerning these complaints have long been closed. The Ombudsman rejects any insinuations that he failed properly to handle these inquiries. As mentioned above, IH is free to turn to Parliament if it should wish to persist making such accusations.

78. IH submitted that, in the case involving its note of 11 September 2001, ECHO failed to comply with Article 41 of the Charter of Fundamental Rights of the EU. According to IH, ECHO failed (i) to hear it before sending this note, (ii) to give reasons for the decision that the note in IH's view constituted and (iii) to refrain from taking decisions on the basis of insufficient or vague grounds. IH submitted that ECHO had thus infringed Articles 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19 and 20 of the European Code of Good Administrative Practice and that the Ombudsman should declare the infringement of each and every of these provisions to constitute an instance of maladministration.

79. The Ombudsman is at a loss to understand IH's request. In his draft recommendation, the Ombudsman found that ECHO failed to comply with the duty to refrain from discrimination, since it blacklisted IH mainly, or at least also, because of the fact that it had raised allegations of maladministration against the Commission. He further found that ECHO resorted to a measure that was clearly disproportionate to any concerns it might have had as regards IH. The Ombudsman also found that ECHO behaved unfairly in acting as it did. Finally, the Ombudsman concluded that ECHO abused its powers in the present case by blacklisting an NGO without good cause. Given these findings, the Ombudsman is unable to see what use the examination of the further issues raised by IH could serve. In this context, it should again be recalled that the Ombudsman is not a criminal court, which needs to ascertain whether a crime or misdemeanour has been committed, but that he has to examine whether maladministration has occurred. This is precisely what the Ombudsman has done in the present case.

80. IH reiterated its view that the information which AIDCO had forwarded to ECHO and which was cited in the note of 11 September 2001 was incorrect. It further stated that AIDCO had deliberately provided this incorrect information to ECHO. In his draft recommendation (see point 49 above), the Ombudsman took the view that there was no need to examine whether the information provided by AIDCO to ECHO was correct. The Ombudsman continues to believe that this approach was correct. Besides, examining IH's further accusations against AIDCO would unavoidably prolong the present inquiry.

81. IH submitted that it was the Ombudsman's duty to identify the persons who were responsible for the maladministration committed by the Commission.

82. It appears useful to note that Article 195 of the EC Treaty entrusts the Ombudsman with the mission of examining maladministration on the part of the institutions and bodies of the EU. This is exactly what the Ombudsman has done in the present case. The Ombudsman considers, however, that he does not need to identify personal responsibility for any maladministration he finds, unless doing so is exceptionally necessary to arrive at clear conclusions. It should be noted that the Ombudsman is not a criminal court, which needs to identify the persons who are responsible for a crime or misdemeanour.

83. IH further submitted that the Ombudsman should pursue his inquiries until the fraud that the Commission had, in IH's view, committed was clarified in its entirety.

84. The Ombudsman considers that he has undertaken all the inquiries that were needed in order to ascertain whether there was maladministration on the part of the Commission. IH remains free to turn to the prosecutor in charge if it were to consider that criminal offences have been committed.

85. IH submitted that the Ombudsman had, as usual and, again in order to protect the Commission, limited himself to a minimal request for an apology from the Commission. However, IH insisted on its right to see all facts completely clarified.

86. The Ombudsman is puzzled by this comment. IH had previously stressed that its only aim was to have its good reputation restored. The Ombudsman trusted that by making a draft recommendation he had done all he could to help the complainant achieve this aim. In the absence of any clear claims, the Ombudsman considered that asking for an apology was appropriate. Moreover, the Ombudsman made it clear that a formal apology to both IH and the MEP concerned was the minimum that could be expected from the Commission and that the Commission should also consider whether any further action was necessary to prevent such instances of maladministration from arising in the future.

87. In its observations on the Commission's detailed opinion, IH made the following claims:

• ECHO should distance itself, in writing, from its note of 11 September 2001, withdraw the incorrect statements contained therein in their entirety and declare them invalid from the very beginning;
• the Commission should confirm to IH in writing that "these decisions" had been adopted without any legal basis; and
• these corrections should be published in the Official Journal.

88. The Ombudsman notes that these claims were only raised at a stage when the draft recommendation had already been sent to the Commission. In the Ombudsman's view, it would not be appropriate to take these further claims up for inquiry at this advanced stage.

89. In its observations, IH further stated that the Commission, and surprisingly also the Ombudsman, had omitted to consider its right to compensation.

90. The Ombudsman recalls that no specific claim for compensation concerning the facts of this case was ever submitted to him. It should further be noted that, even in its observations on the Commission's detailed opinion, IH limited itself to a general reference to its right to compensation. In the Ombudsman's view, it would therefore not be appropriate to take this further claim up for inquiry at this advanced stage. IH obviously remains free to address itself to a competent court if it wishes to pursue a claim for financial compensation.

The assessment of the Commission's detailed opinion and IH's comments thereon

91. The Ombudsman notes that, in its detailed opinion, the Commission appeared to suggest that it should have been given the opportunity to submit observations in the framework of the present own-initiative inquiry. Although the Commission does not explicitly say so, its statement could be understood as criticizing the Ombudsman for having failed to respect its right to be heard.

92. The Ombudsman considers it obvious that the Commission was properly heard in the present case. The allegations examined in the present case are identical to the ones that were raised in complaint 1434/2006/GG. The Commission was invited to submit, and did submit, an opinion on this complaint. The fact that, for procedural reasons, the Ombudsman decided to close his inquiry into complaint 1434/2006/GG and to open the present own-initiative inquiry had no effect on the allegations that were examined by him. Giving the Commission the possibility to express a view on the same allegations on which it had already presented an opinion would therefore have been an empty formality.

93. In its detailed opinion, the Commission pointed out that it regretted the relevant sentence in ECHO's note of 11 September 2001. It argued that interpreting this note in the sense that it was intended to blacklist IH would be erroneous. The Commission submitted that no element supported the allegation of blacklisting and stated that it wished to reassure the Ombudsman that this technique was never applied to IH or other NGOs.

94. The Ombudsman regrets to have to conclude that he is unable to accept this explanation. The wording of the relevant note speaks for itself. In the absence of any valid arguments to the contrary, the Ombudsman maintains his view that ECHO's note of 11 September 2001 can only be interpreted as an effort to blacklist IH. The Commission's reply is thus manifestly inadequate in meeting the concerns which initially led the Ombudsman to make his draft recommendation in so far as this note is concerned.

95. As regards the letter to the MEP, the Ombudsman notes that the Commission stated that it disagreed with the Ombudsman's interpretation on the grounds that it considered its statements in the said letter to be truthful. The Commission in this context referred to a statement according to which IH refused to be subjected to an audit, which, however, was a necessary precondition for deciding upon an applicant's eligibility for signing the FPA. However, this argument misses the point. The Ombudsman's criticism was based on the fact that the letter to the MEP created the impression that the absence of an audit was the only possible problem that prevented an examination of a new application by IH, without disclosing the fact that the sender of the letter had already made it clear that she did not wish ECHO to get involved with this NGO at all. The Ombudsman notes that the Commission has refrained from even attempting to address this issue. The Commission's reply is thus manifestly inadequate in meeting the concerns that led the Ombudsman to make his draft recommendation in so far as the letter to the MEP is concerned.

F. Conclusions

96. On the basis of his inquiries into this case, the Ombudsman makes the following critical remarks:

Principles of good administration need to be respected by the Commission when dealing with NGOs. In view of his inquiries into case OI/3/2007/GG, the Ombudsman arrived at the conclusion that this had not been the case here. The Ombudsman interpreted ECHO's note of 11 September 2001 as an attempt to blacklist IH. He considered that ECHO failed to comply with the duty to refrain from discrimination, since it blacklisted IH mainly, or at least also, because of the fact that it had raised allegations of maladministration against the Commission. He further considered that ECHO resorted to a measure that was clearly disproportionate to any concerns it might have had as regards IH. The Ombudsman also considered that ECHO behaved unfairly in acting as it did. Finally, the Ombudsman could not but conclude that ECHO abused its powers in the present case by blacklisting an NGO without good cause. The Commission had thus committed serious instances of maladministration when dealing with IH.

It is good administrative practice not to provide incorrect or misleading information. ECHO's letter of 6 November 2001 created the impression that the absence of an audit was the only possible problem that prevented an examination of a new application by IH, without disclosing the fact that the sender of the letter had already made it clear that she did not wish ECHO to get involved with this NGO at all. In these circumstances, the Ombudsman found himself compelled to conclude that the letter of 6 November 2001 was indeed misleading and prone to deceive the MEP concerned. This is a further instance of maladministration.

97. Article 3(7) of the Statute of the European Ombudsman provides that after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, the Ombudsman shall send a report to the European Parliament and to the institution or body concerned.

98. IH has called upon the Ombudsman to submit its case to the European Parliament.

99. In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament is of inestimable value for his work. He added that special reports should therefore not be presented too frequently, but only in relation to important matters where the Parliament is able to take action in order to assist the Ombudsman[4]. The Annual Report for 1998 was submitted to and approved by the European Parliament.

100. The Ombudsman considers that the present case concerns serious issues. Both blacklisting an NGO without valid reason and misleading an MEP are egregious instances of maladministration. However, the relevant maladministration took place a long time ago, and the Commission has since introduced an "Early Warning System" (EWS) in order to inform its services of partners, whose activities, for whatever reason, cause concern. Possible instances of blacklisting thus now need to be assessed before the background of these new rules. Given that the Ombudsman is currently conducting an own-initiative inquiry into the Commission's EWS, he considers that this inquiry provides the logical framework to examine any remaining issues of blacklisting. As regards the misleading information provided to an MEP, the Ombudsman considers that he should leave it up to Parliament to decide whether or not it should take up this issue for further action. In these circumstances, the Ombudsman takes the view that it would not be appropriate to submit to Parliament a special report in this case.

101. However, the Ombudsman will send a copy of this decision and a short summary thereof to the European Parliament. The complainant will also be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 20 January 2009

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[1] These decisions are available on the Ombudsman's website (http://www.ombudsman.europa.eu).

[2] Complaint 1874/2003/GG concerned the case handled by AIDCO, which is referred to in the 11 September 2001 note. Complaint 589/2002/GG, which is referred to later in the text, concerns the same case. The decisions on these cases are available on the Ombudsman's website (http://www.ombudsman.europa.eu).

[3] The text of the Code is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

[4] Annual Report for 1998, pages 27-28.