Strasbourg, 15 December 2003

Dear Mr X,

On 16 January 2003, you made a complaint to the European Ombudsman against the Commission concerning the termination of your contract as European Co-Director of the "Y" Programme in a European Commission Delegation in an Asian country "A" and the practices of the said Delegation.

On 29 January 2003, I forwarded the complaint to the President of the Commission. On 2 March 2003 you sent an e-mail with additional information concerning your complaint. The Commission sent its opinion on 22 April 2003. I forwarded it to you with an invitation to make observations, which you sent on 19 May 2003. On 3 December 2003, my office sent you an e-mail with regard to your request for an independent investigation into the said Commission Delegation. You replied by e-mail of the same day.

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 as follows:

The complainant was employed, through a free-lance contract with the German consulting firm "Z", as the European Co-Director of the "Y" Programme. This project is managed by the Commission Delegation in an Asian country. The complainant has been working in that country in the above capacity since 1 November 2000. The project itself started in October 1998 and has a history of poor administration and personnel problems, which led to its stagnation.

In December 2002, the complainant was called to a meeting at the EC Delegation and was told by the Delegation's staff that Z had submitted a re-organisation proposal which included, amongst other things, the replacement of the European Co-Director. The reason given for the latter change was that it was now necessary for the European Co-Director to have expertise in the field of public health. However, because of the good contacts with his firm, the complainant found out that it had been the staff of the EC Delegation which had put pressure on Z to replace him. Z has, on two occasions, expressed its full confidence in the management of the project. The complainant assumes that other motives than the need for a "changed profile" are at the basis of the decision to replace him. The complainant further indicated that the Terms of Reference of the European Co-Director were being changed merely to justify the replacement of the person holding that position.

On 15 January 2003, the complainant was informed by Z that his contract would be terminated by 31 January 2003. The reason provided was the formal request by the EC Delegation to have him immediately replaced, even though no other candidate was available. However, no grounds for this dismissal were provided to the complainant.

The CV of the new candidate proposed by the Delegation as very appropriate for the position lacks reference to any Asian experience, which has been a prerequisite for approval by the Delegation of even short-term consultants on this project.

The complainant further indicates that most, if not all, European co-ordinators in the said country responsible for EU-funded projects have great concerns about the way the Delegation operates. The complainant observes that there is a lack of good governance and management, transparency and accountability.

The complainant wrote to the Head of the Delegation in December 2002 and January 2003 to discuss his case, but received no reply.

On 16 January 2003, the complainant lodged the present complaint with the Ombudsman which contains the following claims: 1) that the decision terminating his contract should be reversed, 2) that he should be compensated for the losses suffered as a result and 3) that an independent investigation of the practices of the EC Delegation be undertaken.

On 2 March 2003, the complainant sent an e-mail informing the Ombudsman's office of a letter he had received from the Commission in reply to a letter that he had written to Commissioner Patten dated 17 January 2003. According to the Commission's letter, the termination of his contract was decided by the EC Delegation in the capital in close co-ordination with the government of country "A". The complainant stated that this was not true and that it was the Commission Delegation which had exerted pressure to replace him. He thus maintained that an independent investigation into the practices of the EC Delegation in that country was necessary. This was also the position of four of his former colleagues, European Team leaders responsible for other EC-funded projects.

THE INQUIRY

The Commission's opinion

The Commission recalled that the company Z signed a service contract with the Commission on 3 September 1998 to assist it in the implementation of the bilateral project "Y". This contract was awarded within the framework of the Community's co-operation programme with country "A" supported in the context of the EC Co-operation Agreement of 1995.

The project implementation, which began in October 1998, has suffered from substantial delay and was characterised by very low achievements and an extremely slow disbursement rate. Following the departure of the European Co-Director in August 2000, Z proposed that the complainant take over this position. Even though he did not fully fit the profile of European Co-Director set out in the contract concluded with Z, the Commission agreed on his candidature in order to avoid further delays. He started working in September 2000 and his contract was foreseen to run until September 2003, when the implementation of the project was due to come to an end.

The Mid Term Review (MTR) of the project, carried out in July 2002 by independent consultants, identified weaknesses and deficiencies pertaining to the design and execution of the programme. Some of the major problems identified were the understaffing of the PMU (Project Management Unit), the difficult relationships within the PMU and an absence of effective backstopping by the contractor Z. The MTR recommended that the professional staffing levels of the PMU should be considerably reinforced and that the PMU should be internally reorganised to enable it to function more effectively.

Since the MTR was carried out, the Commission and the authorities of country "A" in question (Ministry of Health and Ministry of Planning and Investment) have worked hard to take into account the recommendations of the MTR. Necessary modifications have been agreed upon between the Commission and the Ministry of Health, including the strengthening of the public health management expertise at the PMU level.

In September 2002, a Z Director met with the responsible official from the Commission's Headquarters and agreed that the strengthening of public health and management expertise at the PMU level would require the replacement of the current European Co-Director by a public health expert. Z found a potential new Co-Director with good qualifications and a public health background. The Commission and Z decided jointly, with the consent of the Government of the country in question, that this expert would replace the complainant. This agreement was formalised by an exchange of letters dated 10 and 18 December 2002.

In reply to a letter from the complainant dated 17 January 2003, the Commission confirmed and explained its decision in a letter of 12 February 2003.

The Commission has the following comments on the claims of the complainant:

As the Commission has signed a service contract with Z, it has no contractual link with the experts employed by that firm. There is therefore no ground for a dispute between the complainant and the Commission.

As regards the decision to replace the complainant and the allegation that the Commission Delegation put pressure on Z in that respect, the Commission stated that, in order to ensure a successful programme in the future, it had been necessary to discuss with Z the follow-up of the MTR recommendations and to ensure that the skills and expertise of the European Co-Director were appropriate. Both parties agreed that "the strengthening of public health and management expertise at PMU level requires a European Co-Director with a profile which differs from the profile of the Co-Director currently in place". The Commission insisted with Z on this matter, as it was imperative to take the necessary steps for the benefit of the project. The two contracting parties thus jointly agreed on this change.

As soon as the complainant heard of his impending departure, his attitude became very uncooperative, making it difficult for the programme to move forward at a crucial time. Apart from the preparation work for the proposed reorientation of the project, huge supply tenders were underway. The Delegation, supported by the authorities of the country, therefore sent a letter to Z on 7 January 2003 requesting his withdrawal without delay. This was done in accordance with Article 15.3 of the contract which states that: "If incapacity, unsuitability or any other factor make it necessary to replace any of the consultant's employees engaged in the performance of this contract, the Commission's prior agreement should be sought. The consultant shall immediately put forward new candidates with equivalent or better qualifications, who can continue working on the contract in the same way. All costs arising from staff replacements shall be borne by the consultant".

The complainant contests the decision to accept the new European Co-Director proposed by Z, because he lacks professional experience of Asia, and because the Delegation has previously rejected short-term assignment candidates for the same reason. It is correct that the Commission requires prior professional experience in Asia for short-term assignments because it is convinced that, for this sort of assignment, it would not be cost-effective for consultants to learn from scratch about a country or region. However, for the long-term posting of the replacement of the complainant, the Commission felt that the qualities and experience of the consultant proposed by Z outweighed the lack of prior professional experience in Asia.

As regards the complainant's claim for an independent investigation of the practices and dealings of the EC Delegation in the said country, the Commission pointed out that the Delegation is, like other delegations, subject to regular inspections by the Commission services. There is no justification for a special investigation on the basis of the complainant's allegations. In this case, the Delegation handled the situation correctly at each point in time with regard to the replacement of the complainant, in order to ensure the proper functioning of an important EC project which was failing.

On the basis of the above, the Commission considered that there was no case of maladministration with regard to the replacement of the complainant. The Commission services have committed no fault, which would allow the complainant to claim compensation.

The complainant's observations

The complainant maintained his complaint.

He contests the Commission's point that he did not fully fit the profile of European Co-Director, as at the time he was accepted for the post, no such observation was made. He had been accepted as Co-Director by the previous Head of Development section of the Commission's Delegation in the country. The Commission's statement that the need for the replacement of the complainant was "agreed" with Z is not correct. At no point in time did Z or the other partner within the consortium agree that he was unqualified as manager of the programme. The complainant is also aware of the pressure put on the Ministry of Health of the country to accept his replacement.

The MTR team never proposed a replacement of the European Co-Director. The complainant on the contrary points out that the MTR team leader confirmed that there was nothing wrong with the management, but that a better division of tasks at every level was suggested. It is unclear on which recommendation of the team the decision by the Commission, and the Commission alone, was based. Z was in fact left the "choice" between either complying with the Delegation's insistence or facing a termination of the service contract.

The Commission's allegation that the complainant became "uncooperative" is serious and made without any evidence in support. This affects the complainant's professional reputation and is clearly fabricated in order to try to justify an action that was based, at best, on poor judgement by the Delegation staff and, at worst, on motives that have to do with personal and/or personality issues more than with the interests of the project.

The complainant observes that the Commission is correct in stating that there is no direct contract between him and the Commission. However, this does not preclude him from filing a complaint, as an EU citizen, about actions on the part of an EU institution that affected him directly, professionally and financially.

The complainant expressed surprise at the fact that the new European Co-Director, who had no experience of Asia, was accepted by the Delegation. The complainant referred to the Terms of Reference for the post which provide that “experience in Asia is an absolute pre-requisite, and experience in country "A" will constitute a major advantage".

The complainant maintained his point that an independent investigation into the Delegation is necessary. The complainant's concerns about the Delegation's management of its development portfolio are shared by at least four of the European Co-Directors and other experts. The complainant has e-mail messages from former colleagues who express their support for his case. For obvious reasons, the complainant cannot share these, which is why an independent investigation would be appropriate.

The complainant concluded that no evidence has been presented to justify the decision by the Commission to have him replaced.

THE DECISION

1 The scope of the Ombudsman's inquiry

1.1 The complainant claims that of the decision terminating his contract of employment as the European Co-Director of the "Y" Programme should be reversed.

1.2 The Ombudsman notes that the dispute between the complainant and the Commission exists within a contractual context. The Commission signed a contract with a private firm, which employed the complainant under contract. However, the Commission is not a party to the complainant’s contract of employment and the Ombudsman has no mandate to inquire into the activities of the complainant’s employer, since the Ombudsman can only investigate complaints concerning instances of maladministration in the activities of the Community institutions and bodies.

1.3 The Ombudsman's inquiry has thus focused on whether there has been maladministration in the activities of the Commission, leading to the termination of the complainant's contract of employment with the private firm.

2 The Commission's role in the decision terminating the complainant's contract

2.1 According to the complainant, the Commission Delegation put pressure on the company that employed him to have him replaced. The complainant argues that no grounds for his dismissal have been provided. He assumes that motives other than the need for a "changed profile" are at the basis of the decision to replace him.

2.2 The Commission explained that the replacement of the complainant came as a result of the recommendations of a Mid Term Review of the "Y" Programme, which identified weaknesses and deficiencies pertaining to the design and execution of the programme. The Commission and the complainant’s employer agreed that the strengthening of public health and management expertise at the PMU level required a European Co-Director with a profile which differed from that of the complainant. Both parties agreed on the necessary change of the European Co-Director, but the Commission accepted that it had insisted on this matter.

2.3 The Ombudsman has carefully examined the documentary evidence supplied to him by the complainant and the Commission. The Ombudsman notes that in a letter from the complainant’s employer to the Commission Delegation of 10 December 2002, it is indeed mentioned that "the reorientation of the programme and the strengthening of public health and management expertise at PMU level requires a European Director with a profile which differs from the profile of the Co-Director currently in place". In its reply of 18 December 2002, the Commission Delegation agreed with this statement. In its letter of 12 February 2003, the Commission informed the complainant that the termination of his contract with his employer had been decided in accordance with Article 15.3 of the service contract between the firm and the Commission.

2.4 On basis of the above, it seems that the available documentary evidence appears to be consistent with the Commission's explanation of its actions. The Ombudsman therefore finds no maladministration by the Commission. The complainant could, however, consider submitting a contractual claim against his former employer to a court of competent jurisdiction.

2.5 As regards the complainant's new allegation that the Commission's comment that he became uncooperative (after hearing of his departure) was made without any evidence in support, and that this affects his professional reputation, the Ombudsman points out that he has found no evidence in the file which supports the Commission's comment. An inquiry into this allegation would however necessitate that the Ombudsman take a stand on a factual element - namely whether the complainant's behaviour in the period concerned was one of co-operation - before deciding whether the Commission's comment was justified. To extend the present inquiry into this point could thus unduly delay a decision on the original complaint. If the complainant so wishes, he could lodge a new complaint with the Ombudsman on this point.

3 The claim for compensation

3.1 The complainant claims that compensation should be granted for the losses he suffered as a result of the termination of his contract. The Commission argues that its services committed no fault which would allow the complainant to claim compensation.

3.2 In view of the finding of no maladministration in point 2.4 above, the Ombudsman does not consider it necessary to inquire further into the complainant's claim for compensation. This finding is without prejudice to any claim for compensation which the complainant might make in possible proceedings against his former employer before a court of competent jurisdiction.

4 The claim for an independent investigation of the practices of the EC Delegation in the country in question

4.1 The complainant claims that an independent investigation of the practices of the EC Delegation in country "A" should be carried out. According to the complainant, there is a lack of good governance and management, transparency and accountability. In his observations on the Commission’s opinion, the complainant expressed surprise at the fact that the new European Co-Director, who had no experience of Asia, was accepted by the Delegation. The complainant referred to the Terms of Reference for the post which provide that “experience in Asia is an absolute pre-requisite, and experience in country "A" will constitute a major advantage".

4.2 The Commission stated that its Delegation in the country is, like other Delegations, subject to regular inspections by the Commission services. There is no justification for a special investigation on the basis of the complainant's allegations. In this case, the Delegation handled the situation correctly at each point in time with regard to the replacement of the complainant, in order to ensure the proper functioning of an important EC project, which was failing.

4.3 The Ombudsman notes that complainant's claim for an independent investigation concerns the overall working, management and accountability of the Commission Delegation in country "A". According to the complainant, his concerns - which also relate to the Delegation's management of its development portfolio - are shared by four of the European Co-Directors.

4.4 The Ombudsman notes that an independent investigation as required by the complainant could only be carried out by the European Anti-Fraud Office (OLAF) which has the appropriate powers to conduct inquiries into Commission Delegations in order to verify whether they work in a transparent, accountable and cost effective manner. The powers of the European Anti-Fraud Office (OLAF) as regards the Commission include “carrying out internal administrative investigations intended (a) to combat (…) any other illegal activity adversely affecting the Community's financial interests", and "(b) to investigate serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the Communities likely to lead to disciplinary and, in appropriate cases, criminal proceedings.”(1)

4.5 The Ombudsman's office has contacted the complainant and raised the possibility of forwarding the file on his complaint to OLAF, with a request to consider whether the matters raised by the complainant could justify an investigation by OLAF. However, by e-mail of 3 December 2003, the complainant stated that, at this time, he does not agree with the submission of the file on his complaint to OLAF.

4.6 In these circumstances, no further inquiries by the Ombudsman appear to be justified. The Ombudsman draws the complainant's attention, however, to the fact that the complainant himself has the possibility to supply OLAF with all the evidence which he may possess concerning the management of the Commission Delegation in country "A". The complainant could also consult the other Co-Directors on whether they would agree to submit evidence.

5 Conclusion

On the basis of the Ombudsman's inquiry into this complaint, there appeared to be no maladministration by the Commission. The Ombudsman therefore closes the case.

As regards point 4 above, the complainant has the possibility to supply OLAF with any evidence which he possesses.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Commission Decision of 28 April 1999 establishing the European Anti-Fraud Office (OLAF), OJ 1999 L 136/20, Article 2 (1) (a) (b).