Dear Sir,

On 12 August 2001, you lodged a complaint with the European Ombudsman against the Commission on behalf of the European Centre for Pollution Research (ECPR). Your complaint concerned the non selection of the proposal for funding you had submitted to the Tempus 2000 call for applications (project IB_JEP-15015-2000).

On 24 September 2001, I forwarded the complaint to the President of the European Commission. I received the Commission's opinion on 14 November 2001. I forwarded it to you with an invitation to make observations. On 3 December 2001, I received your observations.

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

THE COMPLAINT

According to the complainant, the facts were as follows:

The complainant, on behalf of the European Centre for Pollution Research (ECPR), had submitted a proposal for funding to the Community's Tempus 2000 programme (project IB_JEP-15015-2000: "Institution Building in EU Environmental Policy & Related Matters"). Once the selection procedure was completed, Mr Martin Westlake, Head of Unit responsible for the Tempus programme, informed the complainant on 10 January 2001 that his project was not among those proposed for EU financial support. He also explained in his letter that the selection of projects had been carried out on the basis of the recommendations made by a panel of independent academic experts, as well as technical assessment and other expert advice, and invited the complainant to contact Mrs Dubosc, from the European Training Foundation-Tempus Unit, for further information.

The complainant subsequently contacted Mrs Dubosc on 19 January 2001. She justified the rejection of the complainant's proposal on the following grounds:

1. The needs analysis was general and consisted only of minutes of meetings held in Macedonia.

2. Target groups were unclear and only six Macedonians were to be trained as trainers.

3. The objective did not appear realistic because only nine modules were to be developed.

4. The costs of the proposal seemed too high.

5. The sustainability of the project after the Tempus funding was unclear.

6. The quality control was to be done only by an external assessor. Internal assessment, which is essential, was not included in the proposal.

7. East-West mobility was concentrated in years 2 and 3, and there was no such mobility in year 1.

Since the complainant considered that these reasons were spurious wished to have them in writing, he wrote to Mr Westlake on 19 January 2001. In a detailed annex enclosed with his letter he contested each of the reasons put forward by the Commission services:

1. Appendix 2 of the proposal contained all relevant information on needs analysis, including the different activities to be undertaken for this objective.

2. Target groups were clearly defined, and the number of Macedonians to be trained as trainers was 20.

3-4. Modules and costs had been checked upon with the informal assistance of Commission officials who seemed to agree to the forecasts made in the proposal.

5. The sustainability of the proposal after the Tempus funding was described in detail in item C (page 24) of the proposal.

6. Internal assessment was included in the proposal since there were two planning/review meetings to be held for each project-year.

7. No need of early mobility was evident because of the meagre knowledge of EU environmental policy by Macedonian academics, professionals or officials.

The complainant also addressed a number of questions to the Commission regarding the evaluation of his proposal. He concluded by requesting that a new independent evaluation be arranged.

The Commission services replied on 20 February 2001 in a letter signed by Mr Westlake, which referred to each of the points raised by the complainant and explained in detail the view of the assessors who evaluated the project:

1. The needs analysis should have been deeper and better elaborated. Attachment 2 did not convey the reply to questions such as how many people needed the proposed training, and what was their profile, or their potential availability. there was no explanation on how the knowledge acquired during the training might have impacted the daily work of the target trainees.

2. The number of trained trainers could have been raised for a better impact of the project, and their training could have been organised earlier in the lifetime of the project.

3-4. There was a need to improve the balance between activities dedicated to the development of modules and management of the project and the activities focusing on the delivery of the training. Only 30% of the budget had been devoted to the delivery of the training, and more than half to cover travel and subsistence.

5. The references to sustainability of the project in its page 24 were not considered sufficiently clear, in particular as they relied on the use of the Centre for Sustainable Development (CSD) which was, at the time, not yet operational.

6. Lack of a clear definition and attribution of tasks related to internal quality control of the modules.

7. Some of the mobility flows could have been scheduled somewhat earlier in the life time of the project and their number probably rationalised by the combination of several activities.

In his reply of 26 February 2001, the complainant indicated that he felt underwhelmed by the Commission's explanations, which, in his view, had been manufactured by the programme's evaluators in order to backtrack from the reasoning he had been given verbally. He therefore repeated his objections, and requested that they be replied to.

This new letter led to an extensive exchange of correspondence between the complainant and the different Commission services, including the Director with responsibility for the Tempus Programme and the Cabinet of Vice-President Kinnock.

The complainant lodged a complaint with the Ombudsman on 12 August 2001, as suggested by the Commission. He alleged that his application had been rejected for spurious reasons based on a grossly inadequate review. He further explained that the Commission had been refusing his request for a fresh review of the proposal by an independent expert acceptable to both parties. The complainant found this position unacceptable, since the institution was setting itself up as both judge and jury on the matter. He therefore requested the Ombudsman to facilitate such a review.

In summary, the complainant alleged that the Commission,

(i) rejected his proposal following an inadequate review; and

(ii) did not accept his request to have a freshly new evaluation by independent and objective experts.

THE INQUIRY

The Commission's opinion

In its opinion of 12 November 2001, the Commission first described the methodology employed for the selection of Tempus projects, and then detailed the exchanges held with the complainant. It concluded by addressing the specific allegations made in the complaint.

As regards the methodology employed for the selection of Tempus projects, the Commission described the procedures in place. Applications are first reviewed by a team at the European Training Foundation (ETF), which provides the European Commission's technical assistance. The eligibility of applications is tested by ETF before they are forwarded for academic assessment. Panels of academic assessors are assembled by the Commission for regions or groups of partner countries. The pool of academic experts from which the panels are drawn is made up of academics from the EU Member States, the candidate countries and the Tempus partner countries. The panels are overseen by a lead expert, together with a representative of the Commission and representatives of ETF. The Commission selects the lead experts among those with several years' experience as academic assessors for the Tempus programme. Each application is assessed independently by two assessors. Where these two assessments differ largely, another assessment is carried out by the lead expert.

The academic assessments result in 'scores' for each application. They then go on to a technical assessment, which is carried out by ETF. The technical assessment also results in a 'score'. The academic and technical assessments are then sent to the Commission, which takes the ultimate decision on project selection. A particularity of the Tempus programme is the possibility for unsuccessful applicants to receive feedback indicating at least some of the reasons why their applications failed. Such feedback is provided orally by ETF in the first instance. This practice aims at encouraging unsuccessful applicants to fine-tune their proposals and to re-submit them, rather than writing off all of the time and the effort they have expended.

The Commission described a chronology of its correspondence with the complainant. This chronology included twenty two dates at which some initiative had been taken in relation to the case.

In the third part of its opinion, the Commission explained that it had responded to all the points which the complainant had raised in his extensive correspondence. It proceeded to answer to the allegations made in the complaint to the Ombudsman:

(1) Rejection of the application "for spurious reasons" : The Commission pointed out that no reasons had initially been given in writing to the complainant. ETF gave him an oral summary of the conclusions from the academic analysis, which he used as the basis of his complaint. The Commission underlined that the academic assessment is but one element which is taken into account when making selection decisions. The institution had attempted several times to explain the full range of elements involved in its selection process but the complainant had persisted in arguing that only the reasons he had been given verbally were responsible for the rejection of his project. The Commission also took the view that even if the complainant might have differed with the opinions of the academic assessors, these could hardly be described as "spurious".

(2) Rejection of the application "based on a grossly inadequate review" : The Commission explained that the complainant's proposal had been assessed, first from an academic point of view by two academic experts, and then technically by ETF. Taking into account that the proposal had been randomly chosen as a "simulation project" for the training of lead experts, it was also reviewed by five leading experts and the Commission's staff. The institution explained that the same review mechanisms had been used in the past regarding successful projects submitted by the complainant. The Commission underlined that the complainant had not put forward any evidence which might prove that his proposal had been discriminated against.

(3) Request for a new evaluation "by a real expert who is truly independent and acceptable to both parties" : The institution referred to the structure of the selection procedure, and underscored that the Commission had little or no influence regarding the academic and technical assessments. The Commission considered that there appeared to be no reason to justify any different treatment for the complainant's proposal, as it would be the case if an academic panel "acceptable to both parties" were to be set up. It added that such a panel would be impossible to organise.

(4) The Commission had "set themselves up as both judge and jury" : The Commission referred to its previous answer.

In the last part of its opinion, the Commission concluded by stating that following Prof. N.'s complaints, two inquiries had been conducted within the Commission, at Head of Unit and Director level. In both instances, the conclusion reached was that there was nothing to justify reconsidering the original decision. The Commission explained that it had tried to give detailed explanations to the complainant, but since the arguments put forward seemingly failed to convince him, it had proposed that he consider presenting his case to the Ombudsman. This suggestion, the Commission pointed out, sought to clear out allegations of unfair dealings or partiality, so that they would not undermine the credibility of the Tempus programme.

The Commission regretted that a valued collaborator on previous projects felt that he had been wronged. In its correspondence with the complainant, the Commission had expressed its hope that he might be able to work with the programme again in the future.

The complainant's observations

In his observations, dated 3 December 2001, the complainant repeated the allegations and contested some of the statements made by the Commission. He believed that the Commission had failed to address the allegations made in his complaint and therefore stressed the need for a new evaluation of his proposal.

He considered that the Commission's selection procedure seemed fine on paper, even though its practical implementation was far from it.

In the complainant's view, the reasoning which the Commission offered to justify the rejection of his proposal was unclear and should have been set out in writing.

The complainant pointed out that the configuration and budget of his proposal had been deemed to be unacceptably high, though he had previously checked out these aspects with the responsible Commission services He contested some of the arguments to reject the proposal, namely the number of Macedonians to be trained, the need for east-west mobility in the project's first year or the explicit reference to the setting out of internal means of assessment.

In his view, the Commission had not assessed the proposal with the required degree of seriousness.

THE DECISION

1 Alleged inadequate review of the complainant's proposal

1.1 The complainant alleged that his application for funding to the Community's Tempus 2000 programme had been rejected following an inadequate review.

1.2 The Commission described the reasons which had justified its rejection of the complainant's proposal. It explained that these reasons had resulted from a thorough assessment of the project, both at academic and technical level. The institution took the view that there were no grounds to consider that the reasons given by the Commission were spurious.

1.3 As Community courts have held, the Commission has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender(1). Review of the actions taken by the Commission in connection to tender procedures, is therefore limited to checking that the rules governing the procedure and the statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers(2).

1.4 The Ombudsman notes that in reply to the complainant's request, the Commission has offered an explanation, first verbally and subsequently in writing, of its reasons not to retain his proposal for funding. They include references to particular aspects of the complainant's proposal such as its needs analysis, trainingship, internal quality control or parity among its activities. Both Mrs. Dubosc's statements as summarised by the complainant in his letter of 19 January 2001 and those of Mr Westlake in his letter of 20 February 2001, present a similar reasoning. These explanations appear to provide an adequate statement for the position taken by the institution.

1.5 The Ombudsman considers that the complainant has not provided sufficient evidence that the Commission misused its powers when carrying out its selection of proposals under the Tempus 2000 call for applications.

Accordingly, the Ombudsman has concluded that the Commission acted within the limits of its legal authority. The Ombudsman therefore finds that there is no evidence of maladministration in relation to this aspect of the case.

2 Request of a new evaluation of the complainant's proposal

2.1 The complainant alleged that the Commission did not accept his request to have a freshly new evaluation of his proposal by independent and objective experts.

2.2 The Commission considers that there appears to be no reason to justify the complainant's proposal. The Ombudsman has already concluded that the Commission acted within the limits of its legal authority in the assessment of the complainant's proposal. The Ombudsman therefore finds that there is no evidence of maladministration in relation to this aspect of the case.

3 Conclusion

On the basis of the European Ombudsman's inquires into this complaint, there appears to have been no maladministration by the European Commission.

The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN

 

cc.: Ms Theresa Villiers, MEP

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(1) Case 56/77 Agence Européenne d'Interims v Commission [1978] ECR 2215, par. 20; Case T-19/95 Adia Interim v Commission [1996] ECR II-321, par. 49.

(2) Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, par. 147.