# Decision of the European Ombudsman on complaint 758/2004/ELB against the European Commission
- Tekijä: Euroopan oikeusasiamies
- Päivämäärä: null
- [URL](https://www.ombudsman.europa.eu/fi/decision/fi/2135)
---
Strasbourg, 28 April 2005   

Dear Mrs T.,

On 11 March 2004, you made a complaint to the European Ombudsman concerning
a proposal submitted in the framework of call for proposals FP6-2003-IST-2.

On 7 April 2004, I forwarded the complaint to the President of the European
Commission. The Commission sent its opinion on 28 July 2004. I forwarded
it to you with an invitation to make observations, which you sent on 18
October 2004.

On 23 February 2005, I informed you that there was some delay in the
handling of your complaint.

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

I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT
-------------

According to the complainant, the facts are in summary as follows:

The complainant, the proposal co-ordinator, submitted a proposal in the
framework of a call for proposals for indirect RTD actions under the specific
programme for research, technological development and demonstration entitled
*"Integrating and strengthening the European Research area"*
(Information Society Technologies, call 2 of the IST[(1)](#(1)){#Footnote1}
priority - FP6-2003-IST-2). The call for proposals was published on 17
June 2003. The closure date was 15 October 2003.

The complainant's proposal consisted of developing a new intraocular
lens which decreases the risk of secondary cataract and cures long-sightedness.
This research project involved four organisations from three different
Member States and one candidate country. The project was divided into
four stages, each being managed by one of the four partners. It dealt
with the medical follow-up of patients implanted with the "bag-in-the-lens"
design, the development of the Optical Coherence Tomography experimental
bench for the measurement of the surface curvature of the cornea and of
the lens, the manufacturing of accommodative contact lenses of different
aspherical coefficients, the refining of the optic part of the "bag-in-the-lens"
design in a continuous aspherical lens allowing accommodation.

On 7 January 2004, the complainant received a letter dated 23 December
2003, informing her of the evaluation made by the experts and sending
a copy of the Evaluation Summary Report. The proposal was assessed by
independent experts, whose evaluation was that the proposal was not relevant
to the Strategic Objective 2.3.2.2: *"Optical, opto-electronic,
photonic functional components"* . The complainant disagrees with
this evaluation. She queries how a project focused on the design of lenses
can fail to be relevant to a priority concerning optical components. She
also argues that the benefits of the intraocular lens fit perfectly within
the definition *"minimally invasive photonic therapies"*
of the priority. The complainant therefore considers that the Strategic
Objective as defined in the IST Work Programme of Call 2 must be ambiguous.

The complainant also states that her offer was not submitted electronically
and that consequently she was not informed in real time of the progress
of the evaluation. She also argues that the letter of 7 January 2004 lacks
clarity and that other letters arrived too late to enable her to consider
making a new submission for the third call.

On 22 January 2004, the complainant wrote to the Commission making comments
on the Evaluation Summary Report, questioning the comments made in the
Report.

On 29 January 2004, the Commission replied to a collaborator of the complainant
stating that the proposal had been evaluated by three to five experts
and that the comments and scoring are based on independent reading and
consensus discussions between these experts. The Commission also indicated
that the proposal could not be re-evaluated on the basis of the complainant's
comments and provided the complainant with the name of the official who
had moderated the consensus meeting.

The complainant called the above-mentioned official. On 17 February 2004,
she contacted him by e-mail. A phone appointment seems to have been planned.

The complainant alleges, in substance, that:
> (i) the independent experts made an error in considering that her proposal
> was not relevant to Strategic Objective 2.3.2.2 of the research programme
> *"Integrating and strengthening the European Research area"*;
>
> (ii) the procedure is unfair, since it is not possible to challenge
> the decision taken by the experts or to submit a second proposal;
>
> (iii) the information available to the complainant during the procedure
> was inadequate and unclear.

THE INQUIRY
-----------

**The Commission's opinion**   

The Commission's opinion can be summarised as follows:
*Background*   

The complaint concerns the AIOL[(2)](#(2)){#Footnote2}
proposal which was submitted to the Strategic Objective 2.3.2.2 *"Optical,
opto-electronic, and photonic functional components"* of Call
2 of the 6th Framework Programme. Call 2 was published on 17 June 2003
and closed on 15 October 2003. An acknowledgement of receipt was sent
to the complainant on 20 October 2003. As a result of the evaluation,
the proposal was awarded a score of 2 out of a total of 5 as regards relevance.
This score was below the threshold and therefore the proposal was not
ranked. The evaluation results were communicated to the applicant by letter
dated 23 December 2003 enclosing the Evaluation Summary Report.

On 22 January 2004, the complainant sent a letter to the Commission questioning
the accuracy of the score and the conclusion of the evaluators. On 29
January 2004, the Commission replied that the proposal could not be re-evaluated
but invited the applicant to contact the Commission by phone to obtain
an explanation. Around 11 February 2004, the complainant called the Commission
contact person for the AIOL proposal. He explained the background to the
results, confirmed that the proposal had failed one of the thresholds
and offered to organise a telephone conference with other members of the
proposal consortium if the complainant would find it useful. On 17 February
2004, the complainant sent an e-mail to confirm her interest in the offer
of a telephone conference, but there has been no further contact with
the complainant since that date.

The evaluation was carried out in full compliance with the *"Guidelines
on Proposal Evaluation and Selection Procedures"* applicable to
the 6th Framework Programme (hereinafter the Guidelines). These Guidelines
are public and are available on the Commission's website.

In accordance with those Guidelines, the evaluation of Call 2 proposals
submitted to Strategic Objective 2.3.2.2 *"Optical, opto-electronic
and photonic functional components"* was performed by three independent
experts.

As provided for by the Guidelines, those experts were briefed by the
Commission services in charge of the call, in order to inform them of
the general evaluation guidelines, the evaluation criteria to be applied,
and the objectives of the research area under consideration.

All 101 proposals submitted under the Strategic Objective 2.3.2.2, including
the AIOL proposal, were then evaluated according to the same selection
criteria. After delivering their individual assessment, the three experts
met under the moderation of a Commission official to reach a consensus
on both comments and scores with respect to the proposal. The result of
the evaluation of the AIOL proposal was confirmed by a panel meeting of
experts and the Commission also decided to confirm this evaluation.
> *++1. Alleged error in the evaluation of the proposal with
> respect to the relevance criterion++*   

In order to determine how relevant a proposal is, it must be evaluated
in the context of the full text of Strategic Objective 2.3.2.2 contained
in the IST Work Programme for 2003 and 2004. This objective states: *"to
develop advanced materials, micro- and nano-scale photonic structures
and devices, solid-state sources and to realise optoelectronic integrated
circuits (OEIC) (...)"*. In the opinion of the evaluators, confirmed
by the Commission, the AIOL proposal did not address any aspect of the
above-mentioned objective. The objective is further elaborated as a series
of focal points. In the opinion of the evaluators, confirmed by the Commission,
the proposal did not address any of the focal points.

The criterion relevance should also be interpreted in the context of
the overall objectives of the IST Work Programme for 2003 and 2004, which
states: *"the focus of IST in FP6 is on the future generation of
technologies in which computers and networks will be integrated into the
everyday environment, rendering accessible a multitude of services and
applications through easy-to-use human interfaces. This vision of ambient
intelligence places the user, the individual, at the centre of future
developments for an inclusive knowledge-based society for all"*.

Based on this, the unanimous opinion of the independent experts was that
the development of intraocular lenses was clearly not relevant to Strategic
Objective 2.3.2.2.

The Commission has reviewed this opinion and has concluded that it was
justified and confirmed the evaluation results prior to taking any further
decision.
> *++2. Alleged unfair procedure, since it is not possible
> to challenge the decision taken by the experts or to submit a second proposal++*   

Two different issues are raised in this point and the Commission addresses
them separately:
> ++2.1. It is not possible to challenge the decision taken
> by the experts++   

2.1.1. The advice provided by independent experts is one of the key elements
in the evaluation process but not the definitive one. According to the
Guidelines, *"the Commission services review the results of the
evaluation by the independent experts, make their assessment of the proposals
based on the advice from these experts and prepare the final evaluation
results"*.

As stated in the letter sent to the complainant, dated 23 December 2003,
enclosing the Evaluation Summary Report with the results of the independent
experts: *"in drawing up the final ranked list the Commission will
also take into account the programme priorities, (...) Community policy
objectives and the available budget"*. Moreover, it is mentioned
that this letter only provides the results of the evaluation of the proposal,
does not constitute an invitation to negotiate or a rejection and does
not prejudice any final decision to be taken by the Commission.

In the letter of 29 January 2004, the Commission informed the applicants
of its own decision that confirmed the results of the Evaluation Summary
Report.

The Commission regrets any misunderstanding that may have arisen concerning
the role and responsibilities of the external evaluators and the possibility
to review such cases. It is the Commission which takes the final decision
in all cases and not the external evaluators.

The Guidelines provide a clear legal basis for proposal evaluation by
all Commission services in research activities. They should provide sufficient
reassurance to potential applicants that the evaluation process is carried
out correctly and in accordance with the rules. These Guidelines require
transparent procedures for the selection of independent experts, briefing
of independent experts prior to carrying out any evaluation, individual
evaluation of each proposal by at least three experts, consensus agreement
between those experts on the evaluation of each proposal, a panel evaluation
resulting in an Evaluation Summary Report for each proposal and a suggested
list of proposals ranked in order of priority for those proposals having
passed the thresholds.

Efforts are made to ensure that experts represent different countries,
different experience, as well as different scientific and technical areas
covered by the proposals in order to ensure the broadest and most effective
evaluation possible. Furthermore, these experts are required to sign a
contract with the Commission committing them to maintain the confidentiality
of all information they deal with during the evaluation and to avoid any
conflict of interest in carrying out the evaluation.

Most evaluation sessions are also reviewed by independent observers who
ensure that the evaluation is carried out in a fair and impartial manner
and make observations to the Commission on the evaluation process.

Moreover, it is with a Commission official as a moderator that the experts
meet to reach a consensus on both comments and scores with respect to
each proposal.

In a case where the independent experts need to improve their understanding
of a proposal for a particular instrument that has passed the required
thresholds, hearings or interviews with representatives of the applicants
may be organised as part of the panel deliberations. Nevertheless, those
hearings are not intended to modify or improve the proposal itself.

Finally, the Commission, having attended the consensus and panel meetings
as moderator, reviews the results of the evaluation, taking into account
the results of the evaluation made by the independent experts. However,
the Commission services are not obliged to follow the evaluation made
by the independent experts or their ranking of proposals. The Commission
services may immediately correct any manifest error (which would be most
unusual but not impossible) and set out fully in writing the reasons for
arriving at the final ranking. It is the Commission that determines the
final ranking of proposals to be funded.

Full feedback to applicants is then given by sending out the Evaluation
Summary Report. This report reflects the consensus reached between the
independent experts as well as the panel results, including sufficient
comments and clear reasons for the scores. The Commission is always at
the applicants' disposal to provide explanations complementary to the
comments made in the Evaluation Summary Report.

2.1.2. In addition, there are other possible means of assistance for
proposals at different steps of the evaluation process.
> ++Preparation++   

During the preparation phase, most information is supplied to applicants
through the CORDIS web site, national contact points and other national
or international bodies. In addition, applicants have the possibility
to contact the Commission directly for specific information or questions.

The Commission may offer an informal advisory pre-proposal check service
to applicants in some areas. The purpose is to advise potential applicants
on whether proposals appear to be eligible and within the scope of the
call.
> ++Submission++   

Submission of a proposal can often lead to problems relating to eligibility
due to delayed arrival or receipt. However, complaints relating to eligibility
are dealt with by each call co-ordinator, who can call a meeting of an
eligibility review committee to review doubtful cases.

The decision to exclude a proposal for failing one or more of the eligibility
criteria is taken by the Commission when ineligibility has been proven.

According to the code of good administrative behaviour for staff of the
European Commission in their relations with the public, the Commission
shall provide a detailed justification concerning the decision of exclusion
to an applicant who expressly requests it and under the conditions of
Article 4 of the Code.
> ++Evaluation and negotiation++   

In order to remain fair and to ensure equal treatment of the applicants
during the evaluation process, and as provided for by the Guidelines,
there is no further contact between the Commission and applicants on the
content of their proposal until after completion of the evaluation.

The co-ordinator of each proposal receives the Evaluation Summary Report
containing the comments and recommendations of the evaluation by the experts.
According to the Commission's code of good administrative behaviour, the
Commission shall provide a detailed justification concerning the results
mentioned in the Evaluation Summary Report to an applicant who expressly
requests it and under the conditions of Article 4 of this Code.

A Commission decision is taken to reject all those proposals that are
ineligible, that do not meet the evaluation marking thresholds or that
are too low on a ranked list to be financed. Immediately after the rejection
decision, co-ordinators of rejected proposals are informed in writing
of the Commission's decision as well as of the reasons for rejection.

The remaining applicants receive an invitation to start negotiations
or are informed that they will be put on a reserve list in the event that
additional funding becomes available.

2.1.3. If the applicant remains unsatisfied by the explanation given
by the Commission, he or she is free to complain to the following offices:
> (a) the Secretariat General of the Commission for breach of the Code
> of good administrative behaviour,
>
> (b) the European Ombudsman for maladministration,
>
> (c) the Court of Justice for a decision affecting a person or legal
> entity,
>
> (d) the data protection officer for protection of personal data,
>
> (e) the Commission for public access to documents.
> ++2.2. The complainant's allegation that it was not possible to submit
> a second proposal for the third call++   

With regard to the possibility of resubmission, the applicant has received
adequate information about the strengths and weaknesses of the proposal
in the context of the second call to which she submitted. In relation
to future calls and specifically the third call, the content of this call
was not known to the Commission itself at the time, as the text had not
yet been defined. The publication of the third call text took place on
15 June 2004 and the call was open for submissions until October 2004.
Based on that call text, the applicant could judge the suitability of
a resubmission.
> *++3. The allegation that information available during the procedure
> was inadequate and unclear++*   

The complainant has apparently assumed that the reason why she did not
have real-time access to the status of the evaluation was that the proposal
was a paper submission rather than an electronic submission. This is not
correct. The evaluation is a competition between different proposals.
Therefore it would not be correct to release the evaluation results earlier
to one applicant. The evaluation results are only communicated after the
evaluation of all proposals in the call has been completed. This is true
for all proposals, regardless of the manner of submission. The call text
states that the evaluation results would only be available two months
after the call deadline. The Guide for Proposers further stated that the
Evaluation Summary Report *"will be sent out before the end of
December 2003"*. This is what happened and is the reason why the
applicant did not have access to real time information during the proposal.

For the above-mentioned reasons, the Commission considers the complaint
to be unfounded.
**The complainant's observations**   

The complainant's observations can be summarised as follows:

The complainant considers that the Commission replies indirectly and
incompletely to the issues raised in the complaint.

As regards the relevance of the proposal for the Strategic Objective
2.3.2.2, the Commission makes a partial reading of paragraph 2.3.2.2 of
the IST Work Programme. According to the complainant's understanding of
this paragraph, the proposal is compliant with the objective. She argues
that the Strategic Objective was not clearly defined and that this was
prejudicial to her proposal.

As regards the alleged unfairness of the procedure, the complainant notes
that the Commission briefed the experts. She argues that experts should
only receive documents that are publicly available, notably the work programme,
and that oral explanations might bias the interpretation of the written
text. She considers that information given by the Commission to the experts
and to the applicants is not exactly the same.

The complainant also regrets the absence of a simple procedure to appeal
a decision, such as a second examination of a proposal. She suggests that
the appeal possibilities should be clearly stated in the Work Programme.

According to her, the Commission recognises in its opinion that it did
not reply to the complainant's e-mail and to her concerns as regards the
relevance of the proposal during the phone conversation. The complainant
received no opinion from the Commission as regards the resubmission of
her proposal in the context of the third call despite her request. The
complainant points out that the Commission's reply according to which
the applicant must judge whether to submit a new proposal seems to contradict
another paragraph of the reply, where the Commission states that it can
give an informal opinion on proposals.

As regards the information at the disposal of the complainant during
the procedure, the complainant states that the letter sending the Evaluation
Summary Report was not clear. She also considers that the Commission's
reply to the European Ombudsman is not clear. In its opinion, the Commission
does not reply to the complaint: although it demonstrates that it applied
existing procedures correctly, it does not question existing procedures.
She considers that, after the evaluation of the experts, the Commission
had time to correct errors made by the experts and mentioned by the complainant
in January 2004. The complainant would like to know whether the Commission
could re-examine the proposal after the expert evaluation and, if that
was possible, why this was not done.

THE DECISION
------------

**1 Preliminary remark**   

1.1 The Ombudsman points out that his inquiries into the present complaint
have revealed that the complainant's first allegation (error by independent
experts in assessing a proposal) raises complex scientific and technical
questions. The Ombudsman considers that in examining such allegations
of substantive error, his review should normally be limited to assessing
whether the impugned decision is manifestly unreasonable. The Ombudsman
notes that this approach is in line with the standard of substantive review
applied by the Community courts in such cases[(3)](#(3)){#Footnote3}.
**2 Alleged error made by experts in evaluating the proposal**   

2.1 The complainant submitted, as co-ordinator, a proposal in the framework
of a call for proposals for indirect RTD actions under the specific programme
for research, technological development and demonstration entitled *"Integrating
and strengthening the European Research area"* (Information Society
Technologies, call 2 of the IST priority - FP6-2003-IST-2). The complainant's
proposal was assessed by independent experts, whose evaluation was that
the proposal was not relevant to the Strategic Objective 2.3.2.2: *"Optical,
opto-electronic, photonic functional components"* . The complainant
considers that the Strategic Objective was ambiguous and disagrees with
the evaluation made by the experts. She queries how a project focused
on the design of lenses can fail to be relevant to a priority concerning
optical components. She also argues that the benefits of the intraocular
lens fit perfectly within the definition *"minimally invasive photonic
therapies"* of the priority. The complainant therefore alleges
that the independent experts made an error in considering that her proposal
was not relevant to Strategic Objective 2.3.2.2 of the research programme
*"Integrating and strengthening the European Research area"*.

2.2 According to the Commission, in order to determine how relevant a
proposal is, it must be evaluated in the context of the full text of Strategic
Objective 2.3.2.2 contained in the IST Work Programme for 2003 and 2004.
In the opinion of the evaluators, confirmed by the Commission, the complainant's
proposal did not address any aspect of the above-mentioned objective.
The objective is further elaborated as a series of focal points. In the
opinion of the evaluators, confirmed by the Commission, the proposal did
not address any of the focal points. The relevance should further be interpreted
in the context of the overall objectives of the IST Work Programme for
2003 and 2004. The unanimous opinion of the independent experts was that
the development of intraocular lenses was clearly not relevant to the
Strategic Objective 2.3.2.2. The Commission reviewed the opinion of the
independent experts, concluded that it was justified and confirmed the
evaluation results prior to taking any further decision.

2.3 In her observations, the complainant argues that the objective was
not clearly defined and this was prejudicial to her proposal.

2.4 The Ombudsman notes that the complainant's proposal consisted of
developing a new intraocular lens which decreases the risk of secondary
cataract and cures long-sightedness. The Ombudsman also notes that Strategic
Objective 2.3.2.2 is explained in the Information Society Technologies
Work Programme for 2003-2004 as follows:
> *"To develop advanced materials, micro- and nano-scale photonic
> structures and devices, solid-state sources and to realise optoelectronic
> integrated circuits (OEIC). In the last 20 years, optics and photonics
> have become increasingly pervasive in a wide range of industrial applications.
> It has now become the heart of a new industry, building on microelectronics
> with which it will be increasingly linked. Projects are expected to
> address research challenges for 2010 and beyond in one or more of the
> following application contexts: "telecommunication and infotainment",
> (components of "low-cost high-bandwidth" and "Terabyte
> storage"), "health care and life science" (minimally
> invasive photonic diagnostics and therapies, biophotonic devices), and
> "Environment and Security" (photonic sensors and imagers).
> Focus is on:*
>
> *- advanced materials, microoptics and micro-nano-photonic structures:
> passive and active photonic materials and heterostructures, and their
> integration with microelectronic main stream processes. This includes
> compound semiconductors, organic and polymers and glass;*
>
> *- advanced devices, hybrid or monolithic, and integrated photonic
> circuits implementing functional requirements of telecommunication (e.g.
> electro-optic and all-optical processing), of medical (e.g. biophotonics
> and imaging) and of environment applications (e.g. sensors);*
>
> *- advanced solid-state light sources to increase compactness, tunability
> and brightness. Work will also include ultra-short pulse, microcavities
> and source array technologies".*

2.5 The Ombudsman considers that to answer the question of whether the
complainant's proposal falls within the scope of Strategic Objective 2.3.2.2
as explained in the Information Society Technologies Work Programme for
2003-2004 requires the application of expert scientific and technical
knowledge. He therefore considers that the scope of the substantive review
that he can conduct is limited to assessing whether the Commission's decision
to confirm the evaluation results appears manifestly unreasonable. After
examining the available evidence, the Ombudsman does not consider that
the Commission's decision to confirm that the complainant's project fell
outside the scope of Strategic Objective 2.3.2.2 was manifestly unreasonable[(4)](#(4)){#Footnote4}.
The Ombudsman therefore concludes that there is no maladministration as
regards this aspect of the complaint.

2.6 The Ombudsman considers that when an administrative procedure for
selecting projects to promote the Community's objectives entails complex
scientific and technical evaluations, respect for procedural guarantees
is of fundamental importance, in order to ensure both effectiveness and
fairness. The adequacy of the procedures followed by the Commission in
this regard is dealt with in the following section.

2.7 As regards the complainant's argument that Strategic Objective 2.3.2.2
is ambiguous or not clearly defined, the Ombudsman notes that the Commission
has stated that it may offer an informal advisory pre-proposal check service
to applicants in some areas, the purpose of which is to advise potential
applicants on whether proposals appear to be eligible and within the scope
of the call. In her observations, the complainant states that she received
no opinion as regards the relevance of her proposal to the third call.
The Ombudsman points out that the complainant has the possibility to make
a new complaint to the Ombudsman if she considers that the Commission
denied her an opportunity given to other applicants to obtain informal
advice before submitting the proposal.
**3 Alleged unfair procedure**   

3.1 The complainant alleges that the procedure is unfair, since it is
not possible to challenge the decision taken by the experts or to submit
a second proposal.

3.2 According to the Commission, the evaluation of the second call for
proposals submitted to Strategic Objective 2.3.2.2 was performed by three
independent experts, in compliance with the *"Guidelines on Proposal
Evaluation and Selection Procedures"* applicable to the 6th Framework
Programme. The Commission, having attended the consensus and panel meetings
as moderator, reviewed the results of the evaluation, taking into account
the results of the evaluation made by the independent experts. The advice
provided by independent experts is one of the key elements in the evaluation
process but not the definitive one. The Commission is not obliged to follow
the evaluation made by the independent experts or the ranking, and may
immediately correct a manifest error and set out fully in writing the
reasons for arriving at this final ranking.

The Commission states that it decided to reject all those proposals that
were ineligible, did not meet the evaluation marking thresholds or were
too low on a ranked list to be financed. After the rejection decision,
co-ordinators of rejected proposals were informed in writing of the Commission's
decision as well as the reasons for the rejections. According to the Commission,
it is at the applicants' disposal to provide explanations complementary
to the comments made in the Evaluation Summary Report. If an applicant
remains unsatisfied by the explanations given by the Commission services,
he or she is free to use one of the appeal procedures.

3.3 In her observations, the complainant points out that information
given by the Commission to the experts and to the applicants is not exactly
the same, because the former were given oral explanations. She considers
that, after the evaluation of the experts, the Commission had time to
correct errors made by the experts and mentioned by the complainant in
January 2004. The complainant would like to know whether the Commission
could re-examine the proposal after the expert evaluation and, if that
was possible, why this was not done.

3.4 The Ombudsman notes that, according to the Guidelines on Proposal
Evaluation and Selection Procedures, *"each proposal is evaluated
against the applicable criteria independently by several experts who fill
in individual evaluation forms giving marks and providing comments. (...)
The Commission services review the results of the evaluation by independent
experts, make their assessment of the proposals based on the advice from
these experts and prepare the final evaluation results."* The
Ombudsman considers that the role of the experts as defined in the Guidelines
is clearly to provide scientific and technical advice to assist the Commission
to make the most effective decisions to promote the Community's objectives.
The independence of the experts appears to be conducive both to the effectiveness
and the fairness of the process. In these circumstances, the Ombudsman
does not consider that the absence of an appeal mechanism against the
evaluation made by the experts could itself be structural or systemic
maladministration. Nor does the Ombudsman consider that the fact that
the experts received information from the Commission additional to that
provided to applicants is in itself unfair, irrational or otherwise contrary
to principles of good administration.

3.5 The Ombudsman notes that the Commission states that it is always
at the applicants' disposal to provide explanations complementary to the
comments made in the Evaluation Summary Report. The Ombudsman notes that
the complainant wrote to the Commission on 22 January 2004 to question
the Evaluation Summary Report and also contacted the Commission in February
2004 by telephone and e-mail. The Ombudsman does not consider that the
available evidence discloses any failure by the Commission to provide
complementary explanations at the complainant's request.

3.6 As regards the lack of possibility to resubmit a proposal under the
second call, the Ombudsman notes that according to the Guide for Proposers
concerning IST call 2 (section III.4.), *"once the deadline has
passed, however, we can accept no further additions, corrections or re-submissions.
The last version of your proposal received before the deadline is the
one which will be evaluated, and any later material will be disregarded."*
The Ombudsman takes the view that it is clear from the above that re-submission
to the same call of proposals that have already been evaluated is excluded
by the fact that by definition any such re-submission would take place
after expiry of the deadline.

3.7 As regards the question in the complainant's observations, the Ombudsman
notes that the Commission has already stated in its opinion that it reviewed
the opinion of the independent experts and concluded that it was justified
and confirmed the evaluation results prior to taking any further decision.

3.8 In view of the above, the Ombudsman considers that there is no maladministration
as regards this aspect of the complaint.
**4 Alleged inadequate and unclear procedure**   

4.1 The complainant alleges that the information available to her during
the procedure was inadequate and unclear. According to the complainant,
she was not informed in real time of the progress of the evaluation because
she did not submit her offer electronically. She argues that the Commission's
letter of 7 January 2004 lacked clarity and that other letters arrived
too late for her to consider making a new submission for the third call.

4.2 According to the Commission, the evaluation is a competition between
different proposals and to ensure fair and equal treatment there is no
further contact between the Commission and applicants on the content of
their proposal until after completion of the evaluation. The evaluation
results are only communicated after the evaluation of all proposals in
the call has been completed. This is true for all proposals, regardless
of the manner of submission. The call text states that the evaluation
results would only be available two months after the call deadline. The
Guide for Proposers further states that the Evaluation Summary Report
*"will be sent out before the end of December 2003"*. This
is what happened and is the reason why the applicant did not have access
to real time information during the proposal.

As regards the possibility of submission for the third call, the Commission
argues that the applicant had received adequate information about the
strengths and weaknesses of the proposal in the context of the second
call and that she could judge the suitability of a submission to the third
call, on the basis of the text of that call, which was published on 15
June 2004.

4.3 The Ombudsman considers that the Commission's explanation that the
complainant's proposal was not treated less favourably because it was
not submitted electronically appears convincing.

4.4 As regards the timing and content of the information available to
the complainant in view of possible resubmission of the proposal in the
framework of the third call, the Ombudsman has carefully examined the
evidence available in the file. It appears that the complainant received
information about the rejection of her proposal in January and February
2004. The Ombudsman notes that the third call was published in June 2004
and closed in September 2004. In these circumstances, and taking into
account also the finding in point 3.5 above, the Ombudsman does not consider
that the complainant has shown that the Commission failed to provide her
with timely information with a view to a new submission for the third
call.

4.5 In view of the above, the Ombudsman concludes that there is no maladministration
as regards this aspect of the case.
**5 Conclusion**   

On the basis of the Ombudsman's inquiries into this complaint, there
appears to have been no maladministration by the Commission. The Ombudsman
therefore closes the case.

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

Yours sincerely,

P. Nikiforos DIAMANDOUROS

*** ** * ** ***

[(1)](#Footnote1){#(1)} IST stands for Information Society
Technologies.

[(2)](#Footnote2){#(2)} AIOL is the proposal acronym,
the proposal title is: *"Study of accommodation process - Design
of an accommodative lens"*.

[(3)](#Footnote3){#(3)} See for example, Case T-70/99,
*Alpharma Inc. v Council* , 2002 ECR II-03495, paragraph 180; Joined
cases T-74/00, T-76/00, T-83/00, T-84/00, T-85/00, T-132/00, T-137/00
and T-141/00, *Artegodan GmbH and Others v Commission*, 2002 ECR
II-04945, paragraph 201.

[(4)](#Footnote4){#(4)} The Ombudsman considers it useful
to refer in this context to the following definitions from the on-line
*Dictionary of Photonics* (<http://www.photonics.com/dictionary/>):

*"Photonics is the technology of generating and harnessing light
and other forms of radiant energy whose quantum unit is the photon. The
science includes light emission, transmission, deflection, amplification
and detection by optical components and instruments, lasers and other
light sources, fibre optics, electro-optical instrumentation, related
hardware and electronics, and sophisticated systems. The range of applications
of photonics extends from energy generation to detection to communications
and information processing."*

*"Biophotonics is the technology that deals with the interaction
of organic materials with light and other forms of radiant energy whose
quantum unit is the photon. This includes the emission, detection, absorption,
deflection, selection, modification and creation of radiation by and from
all living organisms and organic materials."* The Ombudsman considers
that these definitions cannot be made operational without scientific and
technical knowledge.