Strasbourg, 21 December 2006

Dear Mr X,

On 16 and 26 November 2004, you submitted a complaint to the European Ombudsman against the European Commission concerning the non-payment of a bill in the framework of the project "xyz".

On 15 December 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 30 March 2005. I forwarded it to you with an invitation to make observations, which you sent on 24 May 2005.

On 21 September 2005, my services contacted the Commission's services by telephone in order to ask for up-dated information.

On 10 October 2005, I sent a letter of further inquiries to the President of the Commission. The Commission sent its additional opinion on 7 December 2005. I forwarded it to you with an invitation to make observations, which you sent on 16 February 2006.

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

THE COMPLAINT

According to the complainant, the relevant facts were, in summary, as follows:

In the period from October 2003 to January 2004, the complainant was the team leader of the project "xyz". In the context of this project, the complainant provided services under a contract concluded with the company "Y" (Agreement No 035/CSV3016/2003" signed on 15 and 21 October 2003). This company is part of a consortium, "Z", led by the company "B". Y had still not paid his bill for an amount of EUR 14 221.70 plus interest.

The contract between the complainant and Y provided that the "contractor will only pay the days actually worked and approved by the Client". As the "Client" is the Commission, the complainant had thus a direct interest in whether the Commission paid for the work done. On 24 August 2004, the complainant wrote a letter to Commissioner Nielson requesting that the Commission look at the matter in order to speed up procedures.

On 12 November 2004, the Director-General of the EuropeAid Co-operation Office replied on behalf of Commissioner Nielson. The reply referred to discussions which had been ongoing since February 2004 between the Commission and Z regarding the quality of the services provided under framework contract N° 2003/72193 concluded in October 2003. Further to these discussions, the Commission decided to suspend payment of the final invoice until Z provided additional information.

The complainant observed that he was not aware of the contents of the above discussions between the Commission and Z. The complainant also considered that the services which he had provided were satisfactory. The salary of other parties had been paid. Also, the Commission had used the documents delivered by the complainant for the project of the Council of Europe for which it was intended. The complainant also pointed out that company Y was not aware which additional information had been requested by the Commission.

On 16 and 26(1) November 2004, the complainant made the present complaint to the European Ombudsman, in which he made the following allegation:

There has been unnecessary delay in the decision concerning the payment of his bill, because the Commission has not fulfilled its obligations towards its Contractor Z.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The technical assistance contract "xyz" was awarded to the Z consortium consisting of the companies Y and B. The contract was signed by the Commission on 13 October 2003 and by Z on 15 October 2003 for a total amount of EUR 64 995. An advance payment of EUR 38 997 (60% of the total amount) was made at the start of the contract.

The project team consisted of a team leader and an expert on reform of the social protection systems, although recruitment of local experts from the beneficiary countries was also foreseen. In order to deliver the required Terms of Reference, the experts had to co-ordinate their activities with the Ministries of Social Affairs in the beneficiary countries, as well as with the relevant departments from the Council of Europe and the Stability Pact for South Eastern Europe (the "Stability Pact") (see the terms of reference of the contract with Z(2)).

The complainant was employed by the company Y and worked on this assignment as the project's team leader. The implementation of the contract was affected by some problems regarding the quality of the services provided.

As regards the allegation that there had been unnecessary delay in the decision concerning the payment of his bill, because the Commission had not fulfilled its obligations towards its Contractor Z, the Commission first recalled the facts:

At the beginning of the contract, on 16 October 2003, the complainant participated together with other experts in a meeting in Strasbourg, where he had the opportunity to obtain the appropriate insight and get acquainted with the framework for the development of the project. However, when the Commission's services on 9 January 2004 received the draft Terms of Reference from the Contractor, doubts were raised as to the team leader's understanding of the project. The draft document lacked both quality and clarity, and showed a different approach from the one indicated in the first contacts with the complainant.

On 13 January 2004, a meeting with the complainant took place at the Commission's premises in order to establish what had been done up to that point and to explain to the complainant how to proceed with the work in order to obtain a final product in line with the contract's terms of reference. The conclusion of this meeting was that the complainant's level of commitment, knowledge and expertise were not up to the expected standard. Following the meeting, the Commission confirmed the need for wider and specific objectives, and drew a clear distinction between the problems already identified and results that could be obtained with this project. That required re-writing the draft Terms of Reference on the basis of more precise information from the field (that is, from the visited beneficiary countries). A detailed mission report was also to be provided by 22 January 2004. It was foreseen that the new Terms of Reference would be endorsed at a meeting in Strasbourg on 22-23 January 2004 with the relevant departments from the Council of Europe and the Stability Pact. The report needed to include all relevant information in order to make the final evaluation of the next version of the draft Terms of Reference.

Since the deadline agreed in the meeting was not respected, on 26 January 2004 the Commission's services requested Z to send the draft Terms of Reference and enclosures by 31 January 2004 at the latest.

On 3 February 2004, Z was once again contacted. This time the Framework Contractor was also warned that the Commission might terminate the contract due to lack of quality and breach of contractual arrangements, since - despite the agreement reached at the meeting with the complainant - no feedback had been received from him.

By e-mail of 9 February 2004, Z informed the Commission that it had received from Y the revised Terms of Reference and certain materials which had been drafted by the complainant. However - as acknowledged by Z itself - the submission of these documents was not possible due to their lack of technical quality. The Commission was also informed that the complainant's employer had in the meantime asked another expert to revise the Terms of Reference. The Commission's services informed the consortium that no other experts should be recruited without the Commission's prior approval.

By mid-February 2004, the Commission obtained the final Terms of Reference which corresponded to the requested qualitative criteria. By e-mail of 20 February 2004, the Commission approved them and informed Z about its intention not to grant full payment of the outstanding invoice. The reasons for that decision were the complainant's unresponsiveness and the poor quality of his work, as well as the fact that the final Terms of Reference had been prepared by another expert. In this e-mail, the Commission also called the Contractor's attention to the consequences arising from bad performance and considerable delays.

On 2 April 2004, Z sent to the Commission a final invoice for the services provided, which amounted to the sum foreseen in the contract (EUR 64 975(3)). Since an advance payment of EUR 38 997 had already been made, the company claimed the payment of the outstanding EUR 25 978. On 1 July 2004, the Commission once again informed Z that a part of the invoice was inadmissible. In a meeting held on 6 July 2004, the Commission referred again to the reasons linked to bad performance and to delays as justification for a reduction in the amount to be paid. A compromise was reached with Z which agreed to send a correctly formulated invoice.

It was however not until 2 November 2004 that Z resumed contact with the Commission, apologising for the lack of feedback and proposing a meeting with the new consortium's co-ordinator. The Commission did not consider such a meeting necessary since no new elements had been provided.

Finally, by e-mail of 15 December 2004, Z sent another final invoice for a total amount of EUR 48 475. This new invoice replaced the one submitted in April 2004, in which the total amounted to EUR 64 975. Since an advance payment of EUR 38 997 had been made at the start of the contract, the company claimed payment of a new amount of EUR 9 478. By e-mail of 20 December 2004, the Commission's services requested that the payment claim should be formally submitted according to the existing rules. This request was reiterated on 13 January 2005 in a telephone conversation with the accounting department of Z. The outstanding payment of EUR 9 478 would be duly processed upon receipt of such invoice.

In addition to the explanation of the facts, the Commission noted that it wanted to emphasise that it had no contractual relationship with the complainant, the parties to the contract being the Commission and Z.

With regard to the delay in the payment of the complainant's services (EUR 14 221.70), the Commission acknowledged that it had suspended the payment of the invoice submitted in April 2004 for the reasons mentioned above. That decision was however not directed at the complainant, but at Z as the Commission's contractual partner. The time taken to reach a decision with regard to the payment of the invoice had admittedly been long. The Commission presented its apologies to the complainant for this delay. However, a considerable part of this lapse of time was attributable to the lack of feedback from the company for almost four months.

As for the fact that the complainant's contract with Y stated that "the contractor will only pay the days actually worked and approved by the Client", the Commission observed that this concerned the contractual relationship between the complainant and Y.

The Commission also argued that it had no obligation to inform the complainant directly. According to Article 3 of the contract between the complainant and Y, the Contractor's project co-ordinator was the person responsible both for giving instructions in the field of project management and for informing him of any relevant issue concerning the project. Z was continuously informed of the lack of satisfaction on the Commission's side and agreed that someone else should be in charge of the preparation of the draft Terms of Reference.

As for the complainant's statement that the Commission used documents drafted by him and thus accepted that his services were of the required quality, the Commission pointed out that it did not use the draft documents provided by the expert for the simple reason that they were of poor quality.

The complainant's letter to Commissioner Nielson of August 2004 was the first and only contact the Commission had with the complainant since the meeting held on 13 January 2004. During all that time, the complainant did not make any contact with the Commission's services.

On the basis of the above, the Commission considered that its services had acted properly and had respected the rules and principles binding upon it.

The complainant's observations

In summary, the complainant made the following observations:

There was no formal decision in which the Commission indicated the reasons why it considered the execution of the contract with Z to be insufficient. The Commission has not provided proof that the draft Terms of Reference lacked clarity and quality, or that the complainant as team leader did not have the right view on the project.

The Commission did not identify the author of the Terms of Reference received in February 2004. The complainant stated that the Terms of Reference concerned could only be those which he gave to Y on 9 February 2004. The Commission should have checked this.

The electronic version of the Terms of Reference was first sent to the responsible Commission official (project manager) by e-mail on 9 January 2004. The meeting on 13 January 2004 had been brought forward because the complainant had planned to go to America for important reasons in the second half of January 2004. This electronic version of 9 January 2004 was not complete because certain parts had not been filled in due to the illness of an expert, in other words because of force majeure. In the meeting of 13 January 2004 it was agreed that these parts would be completed, but there was no dispute about quality failures. It was not justified that the complainant should have to take responsibility for the fact that another expert was ill. That expert had however been paid.

Contrary to what had been initially foreseen in the first meeting, the responsible Commission official required the submission of a detailed mission report and the holding of a second debriefing.

After the complainant came back from America on 1 February 2004, he prepared a new version of the Terms of Reference on 9 February 2004. These were sent to his employer who forwarded them to the Commission on 11 February 2004. In an e-mail of 20 February 2004 to Z, the responsible Commission official expressed his satisfaction with the new version, apparently without realising that it had been drafted by the complainant, although the complainant had briefed the Commission official responsible. The Commission official pointed out however that he did not want to use the document. As regards the quality of the services delivered, the complainant observed that the documents which were sent to the Commission in February 2004 accorded with the provisions contained in the complainant's contract and with the template for the normal tender procedure. The complainant considered that he had fully carried out the task with which he was entrusted.

After 9 February 2004, the complainant did not hear again from the Commission. The complainant learnt from Y that the Commission had unilaterally terminated the contract and refused payment of the complainant's fees, without providing reasons.

The complainant pointed out that, although the Commission observed that it had not used the document because of its poor quality, the responsible official, by reading the documents, had made use of it consciously or unconsciously.

The complainant considered that his name and honour had been tarnished in this case. The complainant further learnt from Y that the responsible official proposed to Z to pay the complainant 20% of his fees, without explanation, but that, after having heard about the complaint to the Ombudsman, he had made his offer conditional on the complainant withdrawing his complaint. The complainant therefore considered that he had been put under pressure.

The complainant's claim now amounted to EUR 14 221.70 plus interest for EUR 1 986.53 for a total of EUR 16 208.23.

On the basis of the above, the complainant concluded that:

1. the Commission had not provided grounds for its objections which led to the non-payment of his fees;
2. the Commission had not respected Article 41 of the Charter of Fundamental Rights according to which he should have been heard; and that therefore:
3. there was no longer a legal basis for refusing to pay; and
4. the Commission should pay to him the full fee and additional costs, including interests on account of the delay for an amount of EUR 16 208.23.

FURTHER INQUIRIES

On 21 September 2005, the services of the Ombudsman contacted by telephone the Commission official responsible for the file asking whether there was any new information since the Commission's opinion of 30 March 2005 with regard to the payment of the invoice of Z. The Commission official informed the Ombudsman' services that, since the Commission's request of 20 December 2004 to Z, no invoice had been submitted and no further communication had been received from Z.

After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman considered that further inquiries were necessary. He therefore wrote to the Commission on 10 October 2005 asking the Commission to provide an opinion on the following new allegations raised by the complainant in his observations:

(1) The complainant alleged that the responsible Commission official required the submission of a detailed mission report and the holding of a second debriefing. These elements had not been foreseen in the original briefing (see page 3 of the complainant's observations, "niet gecontracteerde wensen").

(2)(a) The complainant alleged that his name and honour had been tarnished in this case.

(2)(b) The complainant alleged that he had been put under pressure, since he learnt from Y that the responsible Commission official proposed to Z to pay him 20% of his fees, without explanation, but that, after having heard about the complaint to the Ombudsman, the offer had been made conditional on the withdrawal of the complaint by the complainant.

The Ombudsman secondly asked the Commission to inform him of the situation concerning the outstanding invoice of EUR 9 478 from Z and the prospects for payment.

The Commission's additional opinion

In its additional opinion, the Commission made, in summary, the following comments:

On 16 October 2003, a meeting took place in Strasbourg between the Commission, the complainant, and other experts for the purpose of reviewing and explaining the work to be done. On 9 January 2004, Z sent the draft Terms of Reference to the Commission. This draft was considered unsatisfactory. For that reason, a new meeting with the team leader (that is, the complainant) was held on 13 January 2004. The minutes of this meeting, which the Commission annexed to its additional opinion, were sent to the Contractor. The Commission asked the complainant, inter alia, to re-write the draft Terms of Reference and to present a detailed mission report to be submitted by the end of January 2004. This deadline was not met.

On 9 February 2004, the Contractor wrote to the Commission stating that it had received the revised draft Terms of Reference, but that it considered that the document lacked clarity. In the same e-mail, the Contractor stated that it had asked a German expert specialised in social security and who had a good knowledge of the Balkans to revise the draft Terms of Reference again. The final draft Terms of Reference corresponding to the required quality standards was finally received in mid-February 2004. Due to these delays, the Commission and its Contractor agreed that a reduction of the final payment should be envisaged.

As regards the complainant's new allegations, the Commission made the following comments:

With regard to the first new allegation, the terms of reference of the contract between the Commission and Z required that the experts co-ordinate their activities with the Ministries of Social Affairs or their equivalents in the beneficiary countries, with the Social Cohesion department of the Council of Europe and with the Initiative for Social Cohesion of the Stability Pact. The names of the contact persons were given to the experts before the assignment. The holding of meetings and the reporting thereon are necessary and are an unquestionable duty of anyone carrying out a mission in the framework of a contract. The Contractor itself recognised its obligation to inform the Commission about the outcome of the contracts of its experts and the authorities concerned and sent the Commission a set of mission memoranda.

However, the first draft Terms of Reference were sub-standard and the mission memoranda were too concise to permit a proper verification of the input made by the local authorities. The Commission was therefore obliged to ask the Contractor to prepare new draft Terms of Reference and to present a detailed mission report by 22 January 2004. If the quality of the work delivered by the Contractor had been good, the Commission would certainly not have asked for a detailed mission report.

As regards the second new allegation, the Commission stated that it is obliged to ensure the quality of the work for which it pays in the framework of a contract. In the case of this contract, the work provided by the Contractor did not meet the required quality standards. The Commission was therefore obliged to inform the Contractor that it should correct the work and bring its quality to the level required by its contractual obligations.

The Commission regrets that the complainant was offended by the fact that the Commission could not accept the work produced by him and presented by the Contractor. However, it must be emphasised that it was never the Commission's intention to tarnish the complainant's name and honour.

As regards the second part of the second new allegation, the complainant made serious accusations in his observations, which the Commission vehemently rejects. As already mentioned, the Commission and its Contractor envisaged a reduction of the final payment because the Contractor accepted that the work was not delivered on time. The Commission is not aware of the repercussions, if any, of this agreement for the complainant. If there were repercussions, this would be a matter in which the Commission would have no right whatsoever to intervene. In that respect it must be recalled that the Commission's contractual counterpart is Z and not the complainant.

As regards the Ombudsman's request to be informed of the current situation concerning the outstanding invoice of EUR 9 478 from Z and its eventual payment, Z had sent its last invoice to the Commission by e-mail, which was not acceptable. On 20 December 2004, the Commission requested Z to send a formal invoice by regular mail, but this invoice had not yet been received.

The Commission would once again contact Z and ask it to submit the above-mentioned invoice as soon as possible. Receipt of the invoice would enable its services to make the corresponding payment.

The complainant's additional observations

The complainant made, in summary, the following additional observations:

The Commission had accepted the final draft Terms of Reference, but stated that this was not the document which he had produced, without, however, providing proof for this. It was unlikely that his document had not been used in the preparation of the project which was the subject of the complainant's task.

He was not aware of an agreement between the Commission and the Contractor about a reduction of the final payment.

As regards the alleged tarnishing of his name, he would be reluctant to give his name for new projects in his field as he did not wish to take the risk of having the projects rejected merely because his name was on the list of experts. He considered that his interests had been damaged.

As regards the alleged pressure, the Commission had orally proposed to him to withdraw his complaint.

There was still no final decision on the payment.

The Commission had failed to explain why he was not immediately informed of the alleged inadequacies of his work. Such failure is against principles of good administration.

It also had to be recalled that the delays were not due to him but to the illness of his colleague (which was a case of force majeure) and that his colleague had nonetheless been paid.

THE DECISION

1 Preliminary remarks with regard to the scope of the inquiry

1.1 In the period from October 2003 to January 2004, the complainant was the team leader of the project "xyz". In the context of this project, the complainant provided services under a contract concluded with the company Y which is part of a consortium, Z, led by the company "B". According to the complainant, Y has still not paid his bill for an amount of EUR 14 221.70 plus interest. The contract between the complainant and Y provided that the "contractor will only pay the days actually worked and approved by the Client". The complainant considered that the services which he provided were satisfactory. The salary of other parties had been paid. Also, the Commission used the documents delivered by the complainant for the project of the Council of Europe for which it was intended. In his complaint to the Ombudsman, the complainant alleged that there had been unnecessary delay in the decision concerning the payment of his bill, because the Commission had not fulfilled its obligations towards its Contractor Z.

1.2 In this regard, the Ombudsman would first like to point out that there exists no direct contractual relation between the complainant himself and the Commission, which is therefore not the entity responsible for paying the complainant's fees. The contract which the complainant concluded in the present case is the contract "Y Agreement No 035/CSV3016/2003" concluded with the company Y and signed on 15 and 21 October 2003. Y is part of the Z consortium and is responsible for paying the complainant for his services(4). The contractual relations between the complainant and Y are however outside the Ombudsman's scope of competence. The Ombudsman points out that the complainant's claims, including the payment of his fees, against Y can be pursued in accordance with point 19 ("Settlement of disputes") of his contract with Y, which provides that "[t]his agreement is subject to the laws and jurisdiction of country X. Should any dispute arise out of or in connection with this agreement, the Court of city X (country X) is the competent authority".

1.3 That having been said, the contract which forms the basis of the complainant's allegation is the contract signed between the Commission and Z on 13 and 15 October 2003. The Ombudsman notes that this contract consists of (i) the letter of contract N° 2003/72193 (Framework Contract AMS/451 - Lot N° 8); (ii) the General Conditions of EuropeAid Service Contracts; (iii) the offer of the Framework Contractor; and (iv) the contract's terms of reference. With regard to this contract, the Ombudsman would like to clarify the following:

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

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

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

1.7 The Ombudsman notes that, in his additional observations, the complainant made a new allegation, namely, that the Commission had failed to explain why he was not immediately informed of the alleged inadequacies of his work and that this was against the principles of good administration. In this regard, the Ombudsman considers that, in order not to delay further his decision on the present complaint, he will limit his inquiry to the allegation set out in the original complaint and the additional allegations contained in the complainant's observations. The complainant is free to submit a new complaint to the Ombudsman, after having made the appropriate prior administrative approaches to the Commission. The Ombudsman notes, however, that the Commission had no contract with the complainant. It is thus difficult to see why the Commission should have been obliged to inform the complainant about the inadequacies of his work.

2 The allegation regarding (i) an unnecessary delay in the decision concerning the payment of the complainant's bill and (ii) an unforeseen requirement to submit a mission report

2.1 The complainant alleged that there has been unnecessary delay in the decision concerning the payment of his bill, because the Commission has not fulfilled its obligations towards its Contractor Z. The complainant in particular argued that, although the services he provided were satisfactory, his bill for an amount of EUR 14 221.70 has still not been paid by Y, because, allegedly, the Commission requested additional information. The complainant also pointed out that the Commission used his documents for a project in the Council of Europe for which it was intended.

2.2 In its opinion, the Commission observed that, when, on 9 January 2004, its services received the draft Terms of Reference(6) from its Contractor (that is, Z), they had doubts concerning the team leader's (that is, the complainant's) understanding of the project, as the draft document lacked both quality and clarity. In a meeting of 13 January 2004 with the complainant, it was concluded that the Terms of Reference needed rewriting and that the new Terms would be endorsed in a meeting on 22-23 January 2004. By e-mail of 9 February 2004, Z informed the Commission that it had received the revised Terms of Reference from Y but that the submission of the document was not possible due to the lack of technical quality. The Commission was also informed that the complainant's employer had requested another expert to revise the Terms of Reference. By mid-February 2004, the Commission finally obtained the new draft Terms of Reference which met the requested qualitative criteria, and by e-mail of 20 February 2004, it approved them. However, it informed Z of its intention not to pay the complete invoice, because of the complainant's unresponsiveness, the poor quality of his work, the considerable delays that had occurred, and the fact that the final Terms of Reference had been prepared by another expert. By e-mail of 15 December 2004, Z sent a new invoice, replacing an earlier one of 2 April 2004, for an amount of EUR 48 475, and claiming the payment of the outstanding amount of 9 478. The Commission indicated that the outstanding payment would be duly processed, upon receipt of a formally submitted invoice. The Commission finally emphasised that it had no contractual relationship with the complainant. The Commission however offered its apologises to the complainant for the delay in taking a decision with regard to the invoice, stating that a considerable part of the delay was due to the absence of feedback from Z for almost four months. The Commission also stated that it did not use the documents prepared by the complainant because they were of poor quality.

2.3 In his observations, the complainant maintained his complaint. In connection with his main allegation, he made an additional allegation, namely, that the responsible Commission official required the submission of a detailed mission report and the holding of a second debriefing, and that these elements had not been foreseen in the original briefing.

2.4 In its additional opinion on the new allegation, the Commission stated that it had asked the complainant to re-write the Terms of Reference and to present a detailed mission report by 22 January 2004. The Commission pointed out that the holding of meetings and the reporting thereon are necessary and are an unquestionable duty of anyone carrying out a mission in the framework of a contract. If the quality of the work delivered by the Contractor had been good, the Commission would certainly not have asked for a detailed mission report.

2.5 In reply to the Ombudsman's request to be informed about the current situation concerning the outstanding invoice of EUR 9 478 from Z and the prospects for its payment, the Commission reiterated what it had stated in its first opinion: Z had sent its last invoice to the Commission by e-mail, which was not acceptable. The Commission had asked Z on 20 December 2004 to send a formal invoice by regular mail, but this invoice had not yet been received.

2.6 In the present case, therefore, the Ombudsman - as already pointed out in point 1.6 above - needs to verify whether the Commission has provided a coherent and reasonable account of the legal basis for its actions and why it believes that its view of the contractual position concerning the fulfilment of its obligations towards the Contractor Z is justified.

2.7 The Ombudsman notes that the object of the contract between Z and the Commission was the "Preparation of the Terms of Reference for the CARDIS Regional Action Programme 2003 project 'Social Institutions Support Programme'". The experts for carrying out this task were: (i) the complainant as team leader; (ii) an expert in the reform of the social protection system; and (iii) local experts. The payment schedule foresaw that an advance payment of 60% , namely, EUR 38 997, was to be paid by the Commission at the commencement of the contract, and that "[t]he balance [was] due within 60 days from the reception of the final invoice with the list of supporting documents and after approval of the final report". The complainant's complaint concerns this alleged delay in the payment of the balance.

2.8 The Ombudsman notes that point 5 ("Reporting") of the contract's terms of reference foresaw "that the experts will prepare a first draft of the project Terms of Reference before 17 October 2003 and will send an electronic version, in English language, to the EC project manager. The final version, also electronically, is due no later than 24 October 2003" (underlining added). According to his own contract with Y, the complainant was the consultant in charge of providing the services requested by the terms of reference of the contract between the Commission and Z, and was provided with a copy of those terms of reference in the form of Annex C to his contract with Y.

2.9 As regards the execution of the contract concluded between the Commission and Z, namely, the submission of the Terms of Reference by Z to the Commission and the outstanding payment of Z's bill by the Commission, it appears from the documents in the file that the chronology of the facts is as follows:

On 16 October 2003, there was a meeting in Strasbourg about the project in which the complainant participated together with the other experts. The first draft Terms of Reference were sent to the Commission by Z on 9 January 2004. As the Commission was not satisfied with their quality, it decided to organise a second meeting with the complainant on 13 January 2004 in order to explain to the complainant how to proceed further. On 19 January 2004, the responsible Commission official sent an e-mail to Z, referring to the meeting of 13 January 2004, and expressing his hope that the team of experts led by the complainant would deliver a final product of high quality. On 26 January 2004, he sent another e-mail to Z referring again to the very poor quality of the draft Terms of Reference and fixing a new deadline of 31 January 2004 for the submission of the final Terms of Reference. On 3 February 2004, having received no reaction from the complainant, the Commission official sent a new e-mail to Z referring to the eventuality of terminating the contract due to the failure to respect the contract's terms of reference and the insufficient quality of the report delivered by the complainant.

In an e-mail of 9 February 2004 to the responsible Commission official, Z stated that the complainant had sent a new version of the Terms of Reference to Y. Y considered that the quality of the new version was not sufficiently good for that version to be transmitted to the Commission, and, therefore, it had asked a German expert, specialised in social security, to revise them and to submit them by 11 February 2004(7). Z therefore asked for a new deadline. By e-mail of 11 February 2004, the Commission official replied that no new expert could be engaged without the Commission's prior approval.

By e-mail of 11 February 2004, Z sent the revised Terms of Reference to the relevant Commission official. In his answer of 20 February 2004, the latter pointed out that the document was much closer to the required quality. He however informed Z that, given the bad quality of the work delivered and since the Commission had had no news from the complainant since the meeting of 13 January 2004, he was considering not to approve the entire payment of the complainant's fees and to inform the responsible financial unit accordingly. In this context, he referred to the General Conditions of EuropeAid Service Contracts.

On 2 April 2004, Z sent a final invoice to the Commission for an amount of EUR 25 978 (that is, EUR 64 975(8) minus EUR 38 997 already paid at the beginning of the contract). Further to a meeting with the Z co-ordinator on 6 July 2004, in which the Commission reiterated its intention not to pay the entire amount of the invoice because of the bad performance and the delays involved, Z agreed to send a new invoice. By letter of 2 November 2004, Z apologised for the lack of feedback and the long amount of time that had elapsed between the meeting of 6 July 2004 and its reaction. Z explained that the consortium's co-ordinator had left in September 2004 and that the handing-over of the work to the co-ordinator's successor took longer than expected. It therefore proposed a meeting with the new consortium's co-ordinator. On 15 December 2004, Z sent a new invoice for an amount of EUR 9 478 (that is, EUR 48 475 minus EUR 38 997 already paid) and apologised again for the inconvenience caused by the delay. In his reply of 20 December 2004, the Commission official however requested that the claim be formally submitted to the Finance Team in accordance with the rules. In its opinion of 30 March 2005 on the complaint, the Commission stated that it would process the final payment once the corrected invoice was received. In its additional opinion of 7 December 2005, the Commission stated that this invoice had not yet been received.

As regards the alleged delays concerning the payment of the complainant's bill

2.10 The Ombudsman notes that the complainant's allegation is that there has been unnecessary delay in the decision concerning the payment of his bill, because the Commission has not fulfilled its obligations towards its Contractor Z. The Ombudsman considers it logical to assume that any duty on the part of the Commission to pay for the complainant's services presupposed the submission of an invoice (covering these services) by Z to the Commission. In this regard, the Ombudsman notes that Z sent a final invoice to the Commission on 2 April 2004 and that three months elapsed before the Commission organised the meeting of 6 July 2004. The Ombudsman notes that the Commission offered its apologies to the complainant for this delay, but that it also pointed out that a considerable part of the overall delay was attributable to the lack of feedback from Z for almost four months(9). The Ombudsman considers that the Commission ought to have replied more rapidly to the invoice which was sent on 2 April 2004. However, dealing with this invoice would have required that the invoice be submitted in conformity with the existing rules. The Commission however argued that this was not the case, and Z does not appear to have disputed this. The Ombudsman further notes that Z does not appear to have reacted to the Commission's request of 20 December 2004 to submit a new invoice. The Ombudsman also notes that, in December 2005, when the Commission submitted its additional opinion, Z had still not submitted a formal invoice.

2.11 As regards the submission of Z's last invoice of 15 December 2004 (for an amount of EUR 9 478), the Ombudsman notes that the Commission has not explained in detail what its objections to this invoice were. As regards formal aspects, the Ombudsman notes that Point 5 "Payment schedule" of the letter of contract N° 2003/72193 between the Commission and Z provided that requests for payment had to be submitted to the Financial Department. In that regard, the Ombudsman notes that Z's last invoice (which was annexed to Z's e-mail of 15 December 2004) was not sent to the Financial Department but to the Commission's Project Manager. As regards the Commission's statement that the invoice had been sent by e-mail, the Ombudsman notes that Point 7 of the letter of contract clearly indicated the postal address where the requests for payment had to be sent. However, the Ombudsman also notes that it emerges from the relevant e-mail correspondence of 15 and 20 December 2004 between Z and the Commission that the Commission's objections were not limited to formal aspects, but also concerned substance(10). It appears however that this question is a matter which primarily concerns the relationship between Z and the Commission.

2.12 On the basis of the above considerations, the Ombudsman finds that the Commission has provided a coherent and reasonable account of the legal basis for its position with regard to this aspect of the case.

As regards the requirement to submit a mission report

2.13 As regards the complainant's additional allegation that, contrary to what had been foreseen, the responsible Commission official required the submission of a detailed mission report and the holding of a second debriefing, the Ombudsman notes that Point 4 ("Location and Duration") of the contract's terms of reference provided that "it is planned to have a briefing and a debriefing with the lead expert [that is, the complainant] and the EC project manager and a representative of the CoE [Council of Europe] either in Brussels or in Strasbourg". The Ombudsman notes that this formulation, especially since it refers to "it is planned", would not appear to impose in absolute terms that only one briefing and one debriefing were to be held. The formulation seems rather to refer to the normal situation in which the contract would be executed as foreseen. In the present case, however, where the Commission had serious reservations with regard to the quality and the clarity of the submitted draft Terms of Reference, the Ombudsman considers that the above formulation would not appear to prevent the Commission from asking the complainant to attend a second meeting (debriefing) on 13 January 2004, in order to explain its concerns with regard to the desired quality of the draft Terms of Reference.

2.14 As regards the required submission of a detailed mission report by 22 January 2004, the Ombudsman notes that Article 24 of the General Conditions of EuropeAid Service Contracts foresees that "the Consultant [that is, Z] shall furnish the Project Manager with such information relating to the services and the project as the Project Manager may at any time request". The Ombudsman therefore considers that, given in particular the problems with the quality of the submitted first draft Terms of Reference, the Commission was entitled to request such a detailed mission report.

2.15 On the basis of the above considerations, the Ombudsman considers that the Commission has provided a coherent and reasonable account of the legal basis for the required submission of a detailed mission report and the holding of a second debriefing.

2.16 On the basis of the above considerations, no instance of maladministration by the Commission was therefore found.

3 The alleged tarnishing of the complainant's name and honour

3.1 In his observations, the complainant alleged that his name and honour had been tarnished in this case.

3.2 In its additional opinion, the Commission regretted that the complainant was offended by the fact that it could not accept the work produced by him, but emphasised that it was never its intention to tarnish the complainant's name and honour.

3.3 In his additional observations, the complainant stated that he would be reluctant to give his name for new projects in his field as he did not wish to take the risk of having the projects rejected merely because his name was on the list of experts. The complainant considered that his interests had been damaged.

3.4 The Ombudsman notes that the Commission's comments might reflect on the complainant's reputation. However, it appears that these comments were not made in public. Also, there is nothing to suggest that the Commission intended to tarnish the complainant's image. Moreover, the Ombudsman notes from Z's e-mail of 9 February 2004 to the Commission(11), that Y itself had expressed the view that the draft Terms of Reference submitted by the complainant were not of sufficient quality to be transmitted to the Commission. On the basis of these considerations, no instance of maladministration can therefore be found with regard to this aspect of the case.

4 The alleged pressure put on the complainant

4.1 The complainant alleged that he had been put under pressure, since he learnt from Y that the responsible Commission official, whom the complainant identified, proposed to Z to pay him 20% of his fees, without giving any reasons, but that, after having heard about the complaint to the Ombudsman, he had made the offer conditional on the withdrawal of the complaint by the complainant.

4.2 In its additional opinion, the Commission vehemently rejected the serious accusations made by the complainant. The Commission stated that the Commission and its Contractor considered reducing the final payment because the Contractor accepted that the work was not delivered on time. The Commission was not aware of the repercussions, if any, of this agreement for the complainant. If there were repercussions, this would not be a matter in which the Commission would have any right whatsoever to intervene. In that respect the Commission recalled that its contractual counterpart was Z and not the complainant.

4.3 In his additional observations, the complainant stated that he was not aware of an agreement between the Commission and the Contractor about a reduction of the final payment. With regard to the alleged pressure, the complainant stated that the Commission had orally proposed that he withdraw his complaint.

4.4 The Ombudsman notes that the complainant's allegation, if established, is a very serious one and that the Ombudsman would investigate such an allegation thoroughly. However, in his additional observations the complainant appeared to dilute his allegation by stating that "orally from the Commission's side it was proposed that I would withdraw my complaint. I experienced this as pressure(12)". The Ombudsman notes that the complainant has remained vague about this allegation and did not provide concrete supporting elements. He has for instance not indicated on which date the Commission was to have made that proposal. It also appears that the allegation is based on hearsay evidence obtained from Y and not on direct experience by the complainant with the Commission. On the basis of the above, the Ombudsman considers that no further inquiries into this allegation are justified.

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

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(1) The initial complaint made on 16 November 2004 concerned two points, namely, (i) an alleged failure to reply to the complainant's letter of 24 August 2004 to Commissioner Nielson; and (ii) an alleged unnecessary delay in the decision concerning the payment of his bill. However, having received in the meantime from the EuropeAid Office the reply - dated 12 November 2004 - to his letter to Commissioner Nielson, the complainant wrote to the Ombudsman on 26 November 2004, to thank him, and to maintain only the second allegation.

(2) The "Terms of Reference" needed to be prepared under the contract and constituted the service to be delivered, while the "terms of reference" were the terms applicable to the contract.

(3) The slight difference of EUR 20 seems to have been due to a mistake made by the company since the fees originally agreed amounted to EUR 64 995, instead of EUR 64 975.

(4) The provisions concerning the payment of the complainant are set out in point 6 ("Remuneration") and point 8 ("Payments") of his contract with Y.

(5) See Annual Report 1997, pp. 22 et seq.

(6) The "Terms of Reference" needed to be prepared under the contract and constituted the service to be delivered, while the "terms of reference" were the terms applicable to the contract.

(7) The original e-mail in French of 9 February 2004 reads as follows: "Il [le plaignant] a, en effet, envoyé une nouvelle version révisée à la fin de ce WE à Y mais ceux-ci ont jugé que la qualité de ses termes de référence n'était pas suffisante pour vous la transmettre. Ils ont donc demandé à un expert allemand spécialisé en sécurité sociale et ayant une bonne connaissance des Balkans de les réviser à nouveau. Cet expert s'est engagé à nous les soumettre pour le mercredi 11 février [2004]".

(8) The slight difference of EUR 20 seems to have been due to a mistake made by the company since the fees originally agreed amounted to EUR 64 995, instead of EUR 64 975.

(9) In this regard, the Ombudsman notes that Z indeed twice presented its apologies, namely, in its written communications of 2 November 2004 and 15 December 2004, for the lack of feedback since the meeting of 6 July 2004 and the delay in its reaction. In its letter of 2 November 2004, Z explained that the consortium's co-ordinator had left in the middle of September 2004 and that the handing-over of this co-ordination had taken longer than expected.

(10) In its e-mail of 15 December 2004 to the Commission, Z wrote "we would appreciate if you could accept the issuing of the attached Final Invoice related to the above-mentioned project" and added "we do hope that our proposal is acceptable". In its reply of 20 December 2004, the Commission's Project Manager stated that "I would like to inform you that at this stage I am not able to provide you with any type of agreement in the format that you proposed for the following reasons: I have never received any formal proposal from Mrs [L]; in fact we met in June 2004, when we discussed these issues, but I never received any kind of feedback on whatever discussion for the outcome of this issue. The first reaction after this meeting was the letter of [the complainant] directly to Commissioner Nielson (...) Until I receive additional information, I do not see any reason to change my assessment regarding the quality of services provided by the project team and by the team leader (...)".

(11) The original e-mail in French of 9 February 2004 is reproduced in footnote 7 above.

(12) In the Dutch original: "Mondeling werd zijdens the Commissie voorgesteld dat ik mijn klacht daarop zou intrekken. Ik ervoer dit als druk".