THIS COMPLAINT WAS TREATED AS CONFIDENTIAL. THE DECISION HAS THEREFORE BEEN ANONYMISED. THE MASCULINE FORM HAS BEEN USED THROUGHOUT.
Strasbourg, 29 September 2006

Dear Mr X,

On 15 November 2004 you made a complaint on behalf of a company to the European Ombudsman, against the European Commission. On 5 January 2005, I decided to open an inquiry into alleged unfairness, namely that the decision of the Commission to reduce by 25 % the payment for the complainant's services under a Study Contract was procedurally and substantively unfair.

However, both the Commission, in its opinion, and the company, in its observations, have put forward detailed arguments and counter arguments related to the issue of proper fulfillment of contractual obligations pertaining to technical and methodological aspects of the study, the production of which was the subject of the above contract.

Subsequently, by letter dated 20 June 2006, I informed you of the following.

According to Article 195 of the EC Treaty, the European 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. Maladministration may, thus, also be found when the fulfillment of obligations arising from contracts concluded by the institutions or bodies of the Communities is concerned. The Ombudsman has consistently taken the view that, when he investigates into contractual disputes, it is justified to limit his inquiry to examining 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 does not affect the right of the parties to have their contractual dispute examined and authoritatively settled by a court of competent jurisdiction.

With respect to the present complaint, I noted that my assessing whether the Commission has given a coherent and reasonable explanation of its position that the company was in breach of contract presupposes my examining of the merits of the arguments put forward by the Commission and the company about the issue of proper fulfillment by the company of its contractual obligations pertaining to technical and methodological aspects of the study it had undertaken to produce, under the Study Contract. Such an examination and assessment would extend considerably the scope of my inquiry, as announced in my opening letter of 5 January 2005, and, in essence, alter its focus. Moreover, the technical nature of the above-mentioned issue implies that the prospects of my finding of maladministration by the Commission are quite limited. In light of the above and taking into account that you declared unequivocally in your complaint to the Ombudsman that, eventually, the company would take the case before the courts, I did not consider it appropriate to extend or alter, according to the foregoing observations, the scope of my present inquiry.

Therefore, in case the company wishes to pursue your contractual dispute against the Commission, you may better consider bringing the matter before the competent courts, as you have already indicated, in your complaint, that you would do.

In my letter of 20 June 2006, I also observed that the company's allegation that the Commission's challenged decision was unfair, to the extent that the company had received contradictory guidance from the Commission as regards the content of the study that was the subject of the contract, falls within the scope of my inquiry, as defined in my opening letter of 5 January 2005. I was, thus, willing to investigate this allegation. However, it seems that the company's primary concern is to contest the Commission's position that the company is in breach of contract. Moreover, the company has expressed unequivocally its intention to take the case before the courts, an action which would oblige the Ombudsman to terminate consideration of the complaint, pursuant to articles 1(3) and 2(7) of the Statute of the European Ombudsman. Under these circumstances, I requested you to inform me, by 31 August 2006, if you would like the Ombudsman to continue the present inquiry, by examining the foregoing allegation, or to discontinue his inquiry into your complaint. I also noted that, in the event I did not receive a reply from you by 31 August 2006, I would presume that you wish that the Ombudsman discontinues the inquiry into your complaint.

I observe that you have not sent a reply to my letter of 20 June 2006. Accordingly, I have decided to discontinue and close my inquiry into your complaint.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS