An bhfuil gearán agat in aghaidh institiúid nó comhlacht de chuid an Aontais Eorpaigh?
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Cinneadh i gcás 1811/2009/(BB)FOR - Easnaimh líomhanta i bpróiseas measúnaithe an Choimisiúin
Cinneadh
Cás 1811/2009/(BB)FOR - Tosaithe an Déardaoin | 03 Meán Fómhair 2009 - Cinneadh an Dé Máirt | 27 Iúil 2010
D’oibrigh an gearánach, náisiúnach na Beilge, mar shaineolaí ar dhá thionscadal maoinithe ag an gCoimisiún san Áise. I gcaitheamh na dtionscadal seo, chuaigh an conraitheoir, comhairleacht na hIodáile, faoi leachtú toilteanach. Sannadh cearta agus dualgais an chonraitheora do thríú cuideachta. Ar feadh níos mó ná bliana, níor íocadh na saineolaithe, lena n-áirítear an gearánach, as a gcuid oibre.
Chuaigh an gearánach i dteagmháil leis an Ombudsman ag líomhain drochriaracháin ar thaobh an Choimisiúin de bharr gur bhain sé úsáid as conraitheoir chun an tionscadal a chomhordú d'ainneoin a chuid fadhbanna airgeadais. D’éiligh sé gur chóir é a íoc láithreach bonn.
Chinn an tOmbudsman nach raibh drochriarachán i gceist ar thaobh an Choimisiúin. Luaigh sé nach bhféadfadh an Coimisiún a bheith feasach níos luaithe ar dheacrachtaí airgeadais an chonraitheora. Bhí bearta glactha aige freisin chun a chinntiú go n-íocfaí na saineolaithe. Go luath tar éis don Ombudsman a fhiosrúchán a oscailt, chuir an Coimisiún in iúl don Ombudsman go raibh na saineolaithe íoctha.
THE BACKGROUND TO THE COMPLAINT
1. The complainant worked as an expert on two projects which were financed by the European Commission in 2007 and 2008. The lead contractor under both contracts ('the two contracts') was Company A.
2. In April 2008, Company A informed the Commission that it was having financial difficulties. In May 2008, Company A signed an assignment agreement with Company B. The assignment agreement provided that if Gruppo Soges were to go into voluntary liquidation, Company B would purchase Company A's assets.
3. Subsequently, Company B took over all the rights and obligations of Company A, including those deriving from the latter's agreements with the Commission. In August 2008, the Commission signed the addendum to the contracts, thus changing the lead contractor from Company A to Company B.
4. Although the Commission approved the first contract task on 11 April 2008, and the second contract task on 27 April 2009, the complainant, who worked on both tasks, was not paid for his work on the projects.
5. In July 2009, the European Commission ordered that the amounts due for both tasks should be paid to the Framework Contractor, Company B.
6. In July 2009, the complainant learnt that Company A had gone into liquidation. He feared that experts would be paid only one percent of the amount due to them. He turned to the Ombudsman.
THE SUBJECT MATTER OF THE INQUIRY
7. The Ombudsman opened an inquiry into the allegation that the Commission erred by using Company A as its main contractor, despite being aware of its financial problems.
8. The Ombudsman opened an inquiry into the claim that the Commission should ensure that the complainant is paid immediately for the work he carried out.
9. The Ombudsman requested the Commission to provide the following further information:
(i) How did the Commission verify the financial standing of Gruppo Soges prior to awarding it the two contracts?
(ii) How does the Commission monitor the financial stability of contractors throughout the term of a contract?
(iii) What steps does the Commission take if it becomes aware that a contractor has financial difficulties which may call into question its ability to continue to carry out a contract properly?
THE INQUIRY
10. On 3 September 2009, the Ombudsman launched his inquiry into the present complaint and sent the complaint to the Commission with a request for an opinion. On 4 February 2010, the Commission sent its opinion, which was forwarded to the complainant on 5 March 2010, with an invitation to make observations. The complainant did not submit observations.
THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS
A. Allegation of wrongful decision of the Commission to use Soges S.p.A as its main contractor, despite being aware of its financial problems
Arguments presented to the Ombudsman
11. The complainant argues that the Commission's failure to ensure that its main contractor did not have financial problems resulted in a delay in payment for the work he carried out as an expert on two Commission-funded projects.
12. The complainant maintains that, despite knowing that Gruppo Soges had serious financial problems, the Commission continued to pay Gruppo Soges for the work carried out for the Commission by the experts.
13. In its opinion submitted to the Ombudsman, the Commission stated that the two contracts were awarded to Gruppo Soges in late 2007, when there were neither signs nor known complaints of any financial problems relating to Gruppo Soges.
14. Before awarding the two contracts to Gruppo Soges, the Commission had maintained a long-standing working relationship with Gruppo Soges in the area of technical assistance and consultancy services. Further, Gruppo Soges had submitted the necessary documentation showing its sound financial status.
15. In May 2008, when approval was requested for the assignment of the rights and obligations of Gruppo Soges to Soges, the Commission requested and obtained assurances from its contractor, the liquidator, and later from the "commissario liquidatore", that the assignment was compatible with all applicable laws and, notably, that creditors would be protected.
16. The Commission explained that the two contracts were assigned from Gruppo Soges to Soges in order to minimise disruptions.
17. The Commission emphasised that it had no contractual relationship with the complainant, and that a contract between a contractor and an expert is subject to the applicable commercial law. Furthermore, when requesting assurances from Soges, the Commission took into account the interests of Gruppo Soges' subcontractors, despite having no duty of special care as regards third parties.
18. The Commission clarified that, as a general rule, it monitors legal entities, and not individual contracts. It obtains information from various sources, such as Commission employees, OLAF, audit findings, and the Early Warning System (known as the 'EWS'). All the information is then assessed. The assessment may result in the Commission taking steps to protect its financial interests.
19. Where there are indications that the implementation of a contract might be jeopardised due to a contractor's financial difficulties, the Commission endeavours to obtain information from the contractor about the seriousness of such concerns. Thereafter, in accordance with Article 28 of the General Conditions of the Framework Contract[1], the Commission can decide whether to suspend, in whole or in part, the payments which are due to the contractor. The possibility to suspend payments to the contractor is also recognised by Article 106 (4) of the Implementing Rules[2], and by an EWS decision. In some EWS situations, an attachment order may be served on the Commission. In such a case the contractor may be the object of an EWS warning. The consequence of an executable attachment order is payment in favour of the creditors.
20. It added that, according to Article 36 of the General Conditions of the Framework Contract, the Commission may terminate the contract when the contractor becomes bankrupt or is in any analogous situation, or when any organisational modification occurs involving a change in the legal personality, nature or control of the contractor, unless such modification is recorded in an addendum to the contract. Any other legal disability hindering performance of the contract may also justify the termination of the contract.
The Ombudsman's assessment
21. The Ombudsman considers that the Commission has a responsibility to check a contractor's financial stability before awarding it a contract, and to continue doing so throughout the term of the contract. In view of the Commission's long-standing positive experience of working with Gruppo Soges before it awarded the two contracts, and the fact that Gruppo Soges submitted the necessary documentation showing its financial status, there was no evidence at the time the two contracts were concluded that Gruppo Soges was in financial difficulty. The Ombudsman therefore considers that the Commission took all reasonable steps to ensure that Gruppo Soges was not in financial difficulty when it awarded the two contracts.
22. The contracts were signed in late 2007. In April 2008 Gruppo Soges informed the Commission that it had encountered financial difficulties and that it needed to sign the assignment agreement. The Ombudsman notes that, when the Commission's approval was requested for the assignment of the rights and obligations of Gruppo Soges to Soges, the Commission requested and obtained assurances that the assignment was compatible with all applicable laws and, notably, that creditors would be protected. The Ombudsman also notes that the Commission requested assurances from Soges that the interests of Gruppo Soges' subcontractors would be taken into account. The Ombudsman considers the actions of the Commission, in this regard, to be particularly commendable.
23. In light of the above, the Ombudsman, therefore, finds no maladministration on the part of the Commission in relation to the allegation.
B. Claim that the Commission should ensure that the complainant is paid immediately
Arguments presented to the Ombudsman
24. The complainant points out that, although the Commission accepted the tasks for the two contracts in April 2008, and April 2009, respectively, he had not received final payment.
25. The Commission states that on 24 July 2009 it sent an e-mail to Soges, putting pressure on it to pay the experts. The Commission also informed Soges that its failure to pay would raise serious doubts about Soges' suitability as a Framework Contractor for the Commission. Soges made the payment in September 2009.
The Ombudsman's assessment
26. The Ombudsman considers that the complainant's claim has been settled by the institution.
C. Conclusions
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:
The European Ombudsman concludes that there was no maladministration on the part of the Commission when it awarded the contracts to Gruppo Soges S.p.A. The complainant's claim was settled by the Institution.
P. Nikiforos DIAMANDOUROS
Done in Strasbourg on 27 July 2010
[1] EuropeAid/123314/C/SER/multi, OJ 2006/S 88-092637.
[2] 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 JournalJ 2002 L 357, p. 1 - 71.