Strasbourg, 26 May 2005

Dear Dr. K.,

On 17 September 2004, you made, acting on behalf of Internationaler Hilfsfonds e.V., a complaint against the European Commission to the European Ombudsman. This complaint concerned the case that had already given rise to complaint 1702/2001/GG.

On 30 September 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 1 February 2005. I forwarded it to you on 2 February 2005 with an invitation to make observations, which you sent on 17 March 2005.

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

THE COMPLAINT

Background

In the present complaint, the complainant (a German NGO) asked the Ombudsman to carry out a further inquiry in relation to a case that had already given rise to complaint 1702/2001/GG. This complaint had been closed by the Ombudsman by his decision of 21 May 2002 in which a number of critical remarks were made.

Complaint 1702/2001/GG

In 1995/1996(1), the complainant applied to the Humanitarian Aid Office of the European Communities ("ECHO") with a view to signing the Framework Partnership Agreement ("FPA"). In a letter dated 1 June 1999, ECHO informed the complainant that a new FPA had entered into force on 1 January 1999. The compliance with the eligibility criteria by NGOs like the complainant would be checked in the third part of a three-stage procedure. On 14 December 2000, ECHO informed the complainant that after having signed the new agreement with the signatory organisations of the previous FPA, it was now able to analyse the 400 NGO applications it had received, including the complainant’s.

In a letter of 1 February 2001, ECHO informed the complainant that upon receiving its application in 1995 it had, “[i]n line with the normal conditions for signing the Framework Partnership Agreement (FPA)”, asked the German national authorities for confirmation of the complainant’s suitability. In a further letter of 19 July 2001, ECHO explained that in the absence of a positive response from the German authorities, it had not been able to treat its application.

ECHO subsequently decided to check the complainant’s compliance with the eligibility criteria by means of an audit. Since the complainant did not agree to such an audit, ECHO informed it on 26 September 2001 that in so far as ECHO was concerned, the debate about the complainant’s application to the FPA was closed.

In its complaint to the Ombudsman lodged in 2001 (complaint 1702/2001/GG), the complainant in substance made the following allegations:

(1) ECHO’s failure to react to its original application lodged in 1995 was an instance of discrimination and maladministration;

(2) ECHO had failed to give it the opportunity to be heard regarding the information provided by the German Foreign Office in 1995;

(3) No potential partner could be expected to submit proposals on the basis of such vague information as was contained in ECHO’s letter of 14 December 2000. It thus appeared that ECHO wished to protect its existing partners from undesirable competition by other NGOs;

(4) ECHO’s insistence to have the complainant’s compliance with the eligibility criteria checked by means of an audit was an instance of discrimination and maladministration, given that ECHO had signed the new FPA “with NGOs who have already obtained several operational contracts with ECHO but were not able to sign the [previous] FPA” (see ECHO’s letter of 1 February 2001); and

(5) ECHO refused to grant full access to its file.

The Commission's opinion

In its opinion, the Commission noted that on 16 February 1995, ECHO had sent a fax to the competent German authority, the Foreign Office, requesting information on the complainant. On 15 March 1995, the Foreign Office had forwarded the following reply:

“According to our informations this NGO works also under the name of Welthilfe e.V. Their activities have given reasons for official prosecution, which are still under way. Therefore, you please allow me to refrain from any recommendation at this stage. As far as we are informed, the DG 8 would be able to add to your informations.”

According to the Commission, ECHO had reiterated its request for information to the German authorities in October 1995. In an internal note dated 17 November 1995 ECHO's adviser for institutional relations, Mr C., had informed the ECHO official in charge of the file that the German authorities were unable to give any reference concerning the complainant:

“Son bureau ne travaille pas avec cette organisation et donc ne les connait pas.”

The Commission added that "[d]espite continuous contacts between ECHO and the German Foreign Office in the context of verification of German NGOs, no further information was provided by the German authorities concerning [the complainant] until 15 November 2001."

The Ombudsman's decision

In his decision of 21 May 2002 closing the inquiry into complaint 1702/2001/GG, the Ombudsman came to the following conclusions:

In so far as the first allegation was concerned, the Ombudsman considered that ECHO’s failure to react to the original application constituted maladministration. Three critical remarks were therefore made. The Ombudsman noted, however, that the complainant had not established that the Commission's behaviour also amounted to discrimination.

The Ombudsman also found maladministration as regards the second allegation. A further critical remark was made in this respect.

The critical remarks were worded as follows:

“It is good administrative practice that applications should be examined in the light of the requirements to which they are subjected by the rules in force(2). In the present case, the Commission considered that the complainant’s application could not be handled in the absence of a reference from the German authorities. However, neither of the provisions relevant for this case contained a condition to the effect that such a reference was needed before an application could be approved. ECHO’s decision not to deal with the application on the grounds that a reference from national authorities was missing, thus constituted an instance of maladministration.

Principles of good administration require that applicants are kept informed about the decisions the administration adopts in their regard, all the more so if such information is requested by applicants(3). In the present case, the Commission alleges that in the absence of a reference from the national authorities, it decided to “suspend” the treatment of the application. The Ombudsman notes that this decision (if it was indeed taken) was never brought to the complainant’s attention, although the latter had inquired about the state of the procedure at least once. ECHO’s failure to keep the complainant informed about this decision thus constituted a further instance of maladministration.

Finally, it is good administrative practice to deal with applications within a reasonable time(4). In the present case, no decision was taken and communicated to the complainant on the application lodged in March 1996 before the expiry of the first FPA at the end of 1998. As a matter of fact, it took the Commission more than three years before it informed the complainant, in its letter of 1 June 1999, about the approach it intended to pursue in its regard. No valid explanation was presented by the Commission for this delay. The Ombudsman thus concludes that ECHO’s failure to deal with the application within a reasonable period constitutes a third instance of maladministration.

Principles of good administrative practice require that an applicant has the right, in cases where a decision affecting his rights or interests is taken, to submit comments before the decision is taken(5). In the present case, ECHO decided to ‘suspend’ the complainant’s application on the basis of information received from the German authorities without giving the complainant the chance to comment on this information. This constitutes a further instance of maladministration.”

No maladministration was found with regard to the last three allegations of the complainant.

The complainant’s request to review parts of the decision

In a letter of 24 May 2004, the complainant made various remarks about the behaviour of the Commission in general and asked the Ombudsman to review certain aspects of his decision.

In his detailed reply of 21 June 2004, the Ombudsman addressed the points raised by the complainant and informed the latter that he saw no grounds for changing the decision on complaint 1702/2001/GG.

The present complaint

On 17 September 2004, the complainant requested the Ombudsman to open a new inquiry concerning the following issues:

In its opinion in case 1702/2001/GG, ECHO had pointed at its correspondence with the German Foreign Office in 1995 and had submitted that, despite continuous contacts between ECHO and the German Foreign Office, no further information concerning the complainant had been provided by the German authorities until 15 November 2001. According to the complainant, the same statement had been repeated in the Commission's Statement of Defence in Case T-372/02 of 25 February 2003. In its new complaint, the complainant referred to information that it had received from the German Foreign Office. According to this information, which is contained in a letter dated 4 July 2002, the German Foreign Office had not felt obliged to provide ECHO with further information regarding the complainant after its letter of 15 March 1995, and ECHO had never asked it about the state of the proceedings to which it had referred in this letter. In the light of these circumstances, the complainant alleged that ECHO had, contrary to its own statements, never tried to obtain up-to-date, relevant and ascertainably correct information on it, and had lied to the Ombudsman in its opinion in case 1702/2001/GG.

The complainant further alleged that ECHO's handling of its application showed that ECHO had acted in a deliberately fraudulent way.

The complainant also alleged that ECHO's reproach according to which it had not declared itself willing to be subjected to an audit was incorrect. In this context, the complainant referred to a letter that it had sent to the Commission on 19 May 2004 (a copy of which was sent to the Ombudsman) in which it described in detail its offers to the Commission to carry out an audit.

The complainant also alleged that the letter of the German Foreign Office of February 1995 had failed to respect the principle according to which the innocence of a person has to be presumed.

THE INQUIRY

The Ombudsman's approach

The Ombudsman considered that although the complainant's allegations were related to the subject-matter of complaint 1702/2001/GG, they were not covered by the latter. He therefore decided that an inquiry should be started to examine these allegations against the Commission. The complaint was therefore sent to the Commission for its opinion.

At the same time, the Ombudsman informed the complainant that he was unable to deal with a complaint against the German Foreign Office, given that the latter was not a Community institution or body within the meaning of Article 195 of the EC Treaty.

The Commission's opinion

In its opinion, the Commission made the following comments:

Admissibility

The complainant had lodged an action based on the same facts as the present complaint with the Court of First Instance on 13 December 2002 (Case T-372/02). On 15 October 2003, the Court had dismissed this action as inadmissible. The complainant had lodged an appeal on 15 December 2003 (Case C-521/03 P)(6). The Ombudsman should therefore terminate his inquiry on the basis of Articles 1 (3) and 2 (7) of his Statute.

The present complaint dealt with the Commission's decision to reject the complainant's application to sign the FPA. This decision had been adopted on 19 July 2001 and communicated to the complainant on the same date. Notwithstanding references made by the complainant to letters sent and statements made at a later date, this complaint was therefore based on a decision taken more than three years earlier, and there were no new facts to assess. The complaint should therefore also be declared inadmissible in accordance with Article 2 (4) of the Statute of the Ombudsman.

The Commission's decision rejecting the complainant's application to sign the FPA had already been the subject of an inquiry by the Ombudsman. In view of the general principles of "res iudicata" and "ne bis in idem" a new inquiry was therefore inadmissible.

The issues

If the Ombudsman were to find the complaint admissible, it would nonetheless be unfounded.

(1) As regards the first allegation

The relevant statement could not be interpreted as suggested by the complainant. In point 45 of its Statement of Defence in Case T-372/02, the Commission had made the following statement: "In the light of the information received from the German Foreign Office, questioning the probity of Mr. [K.] and three employees of [the complainant], ECHO decided to suspend the treatment of [the complainant's] application pending further information on the ongoing judicial proceedings against [the complainant's] chairman and its staff. ECHO while taking note, did not pass this information to the complainant pending a definitive answer. Despite continuous contacts between ECHO and the German Foreign Office in the context of verification of German NGOs, no further information was provided by German authorities concerning [the complainant] until 15.11.2001." This full quote clearly presented a situation where the Commission services waited for a follow up. The Commission had never pretended otherwise.

In the period 1993-1998, ECHO signed 16 FPAs with German NGOs. In all these cases, contacts were established with the German Foreign Office and references were provided to ECHO. In some cases, the German Foreign Office updated or confirmed the information previously forwarded. In none of its contacts with the Commission did the German Foreign Office forward updated information on the complainant. This information was eventually forwarded to ECHO on 15 November 2001.

In the context of an application where the probity of the applicant was one of the elements at stake, the complainant had a duty to provide information on such a relevant issue. At the time of presenting the application to sign the FPA, criminal procedures were open against the complainant's chairman in Germany. The complainant failed to disclose this vital point. It remained inexplicable to the Commission why this question had not been mentioned by the complainant and why it had not been considered relevant by the Ombudsman.

Nevertheless, the Ombudsman had already given its opinion on the overall question of the legitimacy of the Commission's procedure and methods to obtain references from national authorities on 21 May 2002. After receiving this opinion, the Commission had revised and made transparent its consultation procedure(7).

(2) As regards the second allegation

The Commission failed to see the grounds on which the complainant based its statement that the Commission had dealt with the application in a "deliberately fraudulent" way. The Ombudsman's attention was drawn to the verbal abuse that characterised the complainant's writing style.

(3) As regards the third allegation

The decision to reject the complainant's application to sign the FPA had been based on the latter's refusal to be audited by ECHO. In his opinion of 21 May 2002, the Ombudsman had considered that the Commission had not abused its discretional power in proposing such an audit to the complainant.

The complainant's assertion that it had been willing to undergo an ECHO audit was by no means demonstrated by its letter to Mr Prodi of 19 May 2004. In this letter, the complainant made an effort to demonstrate that it had shown to DG VIII its readiness to be checked by that service. The complainant's affirmation that "due to the existent relations between DG VIII and ECHO, the latter was aware of [the complainant's] [in] principle readiness to be audited according to the Commission's criteria" was a purely conjectural argument that had furthermore been introduced long after the facts. On the contrary, documentary evidence, already provided to the Ombudsman in the framework of complaint 1702/2001/GG, contradicted the complainant's assertion.

The complainant's observations

In its detailed observations, the complainant maintained its complaint and made the following further comments:

The Commission had failed adequately to address the allegations that had been made. The German Foreign Office had confirmed that ECHO had not requested any further information from it after 15 March 1995 regarding the investigation against the complainant. This clearly showed that the Commission had misled and lied to the Ombudsman. The letter addressed to the Commission by the German Foreign Office on 15 November 2001 had been the result of the complainant's intervention and not to any "continuous contacts between ECHO and the German Foreign Office" which did not exist.

ECHO had failed properly to handle the application. It had acted fraudulently in this respect, given that it had deliberately kept secret the fact that the application had not been processed. Although ECHO had been informed by spring 1996 at the latest that the proceedings against the persons in charge at the complainant had been terminated, it had continued to exclude the complainant.

ECHO must have become aware of the fact that the information submitted to it by the German Foreign Office needed to be reviewed at the latest when it was informed, through the note dated 17 November 1995, that the German Foreign Office did not know the complainant.

By insisting on an audit, the Commission discriminated against the complainant.

When handling the complainant's application to sign the FPA, the Commission had infringed Articles 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the European Code of Good Administrative Behaviour. As regards the alleged infringement of Article 12 of the Code in particular, the complainant noted that the Commission had not even apologised for its behaviour.

THE DECISION

1 Introductory remarks

1.1 In 1995/1996, the complainant, a German NGO, applied to the Humanitarian Aid Office of the European Communities ("ECHO") with a view to signing the Framework Partnership Agreement ("FPA"). This application was finally rejected on 19 July 2001. The Commission's handling of this application gave rise to a first complaint submitted by the complainant in 2001 (complaint 1702/2001). In his decision of 21 May 2002 closing the inquiry into this complaint, the Ombudsman made several critical remarks.

1.2 On 17 September 2004, the complainant submitted the present complaint which concerns the same case. The Ombudsman took the view that although the three allegations raised by the complainant in the present complaint were related to the subject-matter of complaint 1702/2001/GG, they were not covered by the latter. He therefore decided that an inquiry should be started to examine these allegations and asked the Commission for its opinion.

1.3 In its opinion, the Commission took the view that the complaint was inadmissible (1) because it was based on the same facts as an action that the complainant had brought before the Community courts, (2) because it had been lodged out of time and (3) because the Ombudsman had already dealt with the matter.

1.4 As regards the Commission's first objection, Article 1 (3) of the Statute of the European Ombudsman(8) provides that the Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling. Article 2 (7) of the Statute directs the Ombudsman to terminate an inquiry where legal proceedings are brought "concerning the facts which have been put forward". The Ombudsman notes that the action brought by the complainant before the Court of First Instance (Case T-372/02) aimed at (i) the annulment of the Commission's decision of 22 October 2002 rejecting the complainant's application to sign the FPA, (ii) an order requiring the Commission either to reinstate the complainant in the position it had had in 1996 or to invite it to sign the FPA now in force and (iii) an order requiring the Commission to reimburse to the complainant the costs of its complaint to the Ombudsman. In the Ombudsman's view, the three allegations submitted by the complainant in the present complaint differ from the case on which the Court had to rule. In these circumstances, Articles 1 (3) and 2 (7) of the Ombudsman's Statute do not oblige the Ombudsman to terminate the present inquiry without considering these allegations. In any event, the Ombudsman considers that the above-mentioned provisions are only applicable where a court has dealt with the merits of a case. There is no good reason to prevent a complainant from asking the Ombudsman to deal with a complaint where a court has rejected an action alleging the same facts without looking at the substance of this case. However, the Ombudsman notes that the Court rejected the action in Case T-372/02 as inadmissible in its entirety and that the Court of Justice on appeal confirmed this decision(9).

1.5 As regards the Commission's argument that the complaint was lodged out of time, 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". The Commission submits that the complaint is based on the decision of 19 July 2001 and that there are no new facts to assess. It should however be noted that the complainant relies, as regards the first two of his allegations, on information that it obtained from the German Foreign Office in 2002, that is to say after the Commission's decision of 19 July 2001. The Ombudsman considers that this new information does indeed shed new light on the case (see point 2.5 below). It should further be noted that the complainant emphasises the fact that the statement at which it takes exception in its allegation was repeated in the Commission's Statement of defence in Case T-372/02 in 2003. In these circumstances, the Ombudsman takes the view that the Commission has not substantiated its claim that the complainant failed to comply with Article 2 (4) of the Ombudsman's Statute when bringing the present complaint.

1.6 As regards the Commission's view that a new inquiry is inadmissible in view of the general principles of "res iudicata" and "ne bis in idem", suffice it to say that these principles are only applicable to judicial remedies whereas recourse to the Ombudsman is an extra-judicial remedy.

1.7 In view of the above, the Ombudsman concludes that the present complaint is admissible.

1.8 In its observations on the Commission's opinion, the complainant submitted what would appear to be a substantial number of new allegations. These new allegations concern the Commission's handling of the complainant's application to sign the FPA. It should be stressed that the Ombudsman has already examined the Commission's handling of the complainant's application to sign the FPA in the context of his inquiry into complaint 1702/2001/GG and that a number of critical remarks were made by the Ombudsman in his decision closing this inquiry. The Ombudsman considers that the complainant has not shown why a further inquiry into these allegations should be justified nearly four years after the Commission's decision of 19 July 2001 to reject the application.

1.9 In its opinion, the Commission submits that the complainant failed to disclose the fact that criminal procedures were open against the complainant's chairman in Germany at the time when the relevant application was made(10). The Commission expressed the view that it remained inexplicable why this issue had not been mentioned by the complainant and why it had not been considered relevant by the Ombudsman. The Ombudsman considers that two remarks should be made in this context. First, although the Commission was informed about the relevant investigation through the German Foreign Office's note of 15 March 1995, the Commission never invoked this fact as a reason for rejecting the application. What is more serious, the Commission never gave the complainant a possibility to comment on this issue before the latter became aware of the information transmitted by the German Foreign Office on the occasion of the Ombudsman's inquiry into complaint 1702/2001/GG. It should further be noted that the Commission does not appear to have offered any apology to the complainant for the peculiar way in which its application had been handled. In these circumstances, the Ombudsman is unable to accept the Commission's argument that the complainant's failure to mention the relevant investigation ought to have been considered relevant by the Ombudsman. Second, the Commission does not dispute the complainant's argument that this investigation was closed in April 1996. It furthermore appears that other services of the Commission were informed accordingly already in spring 1996 and that ECHO was exchanging information with these services. The Ombudsman therefore finds it difficult to understand why the Commission still invokes the relevant investigation in order to justify the way in which it handled the complainant's application.

2 Allegedly untruthful statements made by the Commission

2.1 In its opinion in case 1702/2001/GG, the Commission had pointed at its correspondence with the German Foreign Office in 1995 and had submitted that, despite continuous contacts between ECHO and the German Foreign Office, no further information concerning the complainant had been provided by the German authorities until 15 November 2001. The same statement had been repeated in the Commission's Statement of Defence in Case T-372/02 of 25 February 2003. In its present complaint, the complainant referred to information that it had received from the German Foreign Office. According to this information, which is contained in a letter dated 4 July 2002, the German Foreign Office had not felt obliged to provide ECHO with further information regarding the complainant after its letter of 15 March 1995, and ECHO had never asked it about the state of the proceedings to which it had referred in this letter. In the light of these circumstances, the complainant alleged that ECHO had, contrary to its own statements, never tried to obtain up-to-date, relevant and ascertainably correct information on it, and had lied to the Ombudsman in its opinion in case 1702/2001/GG.

2.2 In its opinion on the present complaint, the Commission submitted that the relevant statement could not be interpreted as suggested by the complainant. In point 45 of its Statement of Defence in Case T-372/02, the Commission had made the following statement: "In the light of the information received from the German Foreign Office, questioning the probity of Mr. [K.] and three employees of [the complainant], ECHO decided to suspend the treatment of [the complainant's] application pending further information on the ongoing judicial proceedings against [the complainant's] chairman and its staff. ECHO, while taking note, did not pass this information to the complainant pending a definitive answer. Despite continuous contacts between ECHO and the German Foreign Office in the context of verification of German NGOs, no further information was provided by German authorities concerning [the complainant] until 15.11.2001." According to the Commission, this full quote clearly presented a situation where the Commission services had waited for a follow up. The Commission submitted that it had never pretended otherwise.

2.3 Article 195 of the EC Treaty entrusts the European Ombudsman with the task of conducting inquiries into possible instances of maladministration in the activities of the Community institutions and bodies. Article 2 (2) of his Statute directs the Ombudsman to inform the institution or body concerned as soon as a complaint is referred to him. According to Article 3 (1) of the Ombudsman's Statute, the institution or body concerned "may submit any useful comment to him". Article 3 (2), first sub-paragraph of the Ombudsman's Statute provides as follows: "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy."

2.4 In view of these provisions, the Ombudsman takes the view that it would not be consistent with the obligation imposed by Article 3 (2), first sub-paragraph of the Ombudsman's Statute for a Community institution or body to supply inaccurate or misleading information to the Ombudsman during the course of an inquiry.

2.5 In the present case, the Ombudsman accepts that the interpretation offered by the Commission in respect of the relevant statement is compatible with the wording of the latter. It should be noted, however, that in this same statement the Commission claimed that "a definitive answer" was still expected from the German Foreign Office. In these circumstances, the reference to "continuous contacts between ECHO and the German Foreign Office" was bound to be understood as referring to contacts concerning the complainant's case (and not to contacts concerning other German NGOs). However, the Commission does not appear to dispute that no such contacts were made after the one described in the note dated 17 November 1995. In any event, the absence of such contacts is also confirmed by the German Foreign Office's letter of 4 July 2002, the contents of which were not challenged by the Commission. It should further be noted that the note of 17 November 1995(11) states that the German Foreign Office did not know the complainant and that further information on the complainant might be available from a Commission official in Directorate-General VIII. In this note, there is no reference to any "definitive" answer that was still due from the German Foreign Office. Besides, it is difficult to see what kind of definitive answer could still be expected from an institution that had declared that it did not know the complainant.

2.6 In these circumstances, the Ombudsman considers that the Commission's statement, according to which no further information was provided by German authorities concerning the complainant "[d]espite continuous contacts between ECHO and the German Foreign Office in the context of verification of German NGOs", was misleading. This constitutes an instance of maladministration. A critical remark will be made in this context.

2.7 In its observations on the Commission's opinion, the complainant submitted that the relevant statement constituted a lie. Although the statement was certainly misleading, the Ombudsman considers that there is not enough evidence to show that it constituted a deliberate lie.

3 As to the deliberately fraudulent way of handling the application

3.1 The complainant alleged that ECHO's handling of its application showed that ECHO had acted in a deliberately fraudulent way.

3.2 In its opinion, the Commission pointed out that it failed to see the grounds on which the complainant based its statement that the Commission had dealt with the application in a "deliberately fraudulent" way. The Commission further drew the Ombudsman's attention to what it considered the verbal abuse that characterised the complainant's writing style.

3.3 As the Ombudsman has found in his decision on complaint 1702/2001/GG, the Commission's way of handling the complainant's application to sign the FPA was incorrect and deficient in several respects. These aspects are summarised in the critical remarks that were made by the Ombudsman in his decision closing the inquiry into that case. Having carefully examined the arguments submitted by the complainant, the Ombudsman considers, however, that the complainant has not been able to substantiate its allegation that the Commission had acted in a deliberately fraudulent way when handling its application.

3.4 In these circumstances, no maladministration can be found as regards the second allegation submitted by the complainant.

4 Allegedly incorrect reproach concerning audit

4.1 The complainant alleged that ECHO's reproach according to which it had not declared itself willing to be subjected to an audit was incorrect. In this context, the complainant referred to a letter that it had sent to the Commission on 19 May 2004 (a copy of which was sent to the Ombudsman) in which it described in detail its offers to the Commission to carry out an audit.

4.2 In its opinion, the Commission pointed out that in his decision of 21 May 2002 on complaint 1702/2001/GG, the Ombudsman had considered that the Commission had not abused its discretional power in proposing an audit to the complainant. The Commission further submitted that the complainant's assertion that it had been willing to undergo an ECHO audit was by no means demonstrated by its letter to Mr Prodi of 19 May 2004. In this letter, the complainant made an effort to demonstrate that it had shown to DG VIII its readiness to be checked by that service. According to the Commission, however, the complainant's affirmation that due to the existing relations between DG VIII and ECHO the latter was aware of its readiness to be audited according to the Commission's criteria was a purely conjectural argument that had furthermore been introduced long after the facts.

4.3 The Ombudsman considers that the evidence submitted by the complainant shows that already in 1997 the complainant had offered to DG VIII to carry out an audit and that this proposal had been repeated several times. The Commission would therefore be wrong if it were to argue that the complainant has never agreed to such an audit. However, the Ombudsman understands the Commission as arguing that the complainant refused to submit to the audit that had been proposed to it by ECHO in 2001. Seen in this perspective, the Ombudsman considers that the Commission's position is reasonable, given that it appears to be undisputed that the complainant had not accepted this particular request for an audit.

4.4 In these circumstances, no maladministration can be found as regards the third allegation submitted by the complainant.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

In its opinion in case 1702/2001/GG, the Commission submitted that "despite continuous contacts between ECHO and the German Foreign Office" no further information concerning the complainant had been provided by the German authorities until 15 November 2001.

In the Ombudsman's view, this statement was bound to be understood as referring to contacts concerning the complainant's case (and not to contacts concerning other German NGOs). It appeared, however, that no such contacts were made after the one described in the Commission's internal note dated 17 November 1995.

In these circumstances, the Ombudsman considers that the Commission's statement was misleading. This constitutes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) By letter of 9 February 1995, the complainant asked the Commission for a copy of the FPA. The formal application was lodged on 20 March 1996.

(2) Cf. Article 4 of the European Code of Good Administrative Behaviour that has been submitted by the Ombudsman and approved by the European Parliament.

(3) Cf. Articles 20 and 22 of the European Code of Good Administrative Behaviour.

(4) Cf. Article 17 of the European Code of Good Administrative Behaviour.

(5) Cf. Article 16 of the European Code of Good Administrative Behaviour.

(6) This appeal was rejected by the Court of Justice on 7 December 2004.

(7) In this context, the Commission referred to Article 10 of the FPA currently in force.

(8) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(9) Cf. judgment of the Court of First Instance of 15 October 2003 in Case C-372/02 and judgment of the Court of Justice in Case C-521/03 P of 7 December 2004. It may be useful to note that the Court considered that the "decision" of 22 October 2002 only confirmed the decision of 19 July 2001.

(10) In a letter sent on 8 June 2005, the complainant stressed that there had never been judicial proceedings, but only an investigation.

(11) A copy of this document was submitted by the complainant in the context of another complaint (complaint 745/2004/GG).