THE BACKGROUND TO THE COMPLAINT

1. In 2008, the Commission launched a call for tenders for framework contract no 2008/157113 ('the Contract') to carry out a study entitled "Study of the implementing conditions for the new External Aid tools set out in the Regulation establishing a European Neighbourhood and Partnership Instrument"[1] ('the Study').

2. The Contract was awarded to an international consortium whose members were "Agriconsulting Europe SA" ('AESA'), which acted as the consortium's leader; "ECA International" (Spain); "Imani Development" (Great Britain); "Maxwell Stamp PLC" (Great Britain), and "Instituto de la Calidad" (Spain).

3. On 29 April 2008, the European Commission ('the Contracting Authority') signed the Contract with AESA for an amount of EUR 52 448. The duration of the Contract was 30 days.

4. Under Article 2.3 of the Contract's Specific Terms of Reference[2], the consortium's tasks were as follows:

"(i) List the current practices concerning the implementation of the three External Aid tools ("bonification d’intérêt", "prise de participation", and "fonds de garantie").

(ii) Define practical details regarding the implementation of the above tools by the Commission, taking into consideration the conditions set out in the Financial Regulations, and the Regulation establishing a European Neighbourhood and Partnership Instrument ('Regulation IEVP').

(iii) Provide the Commission with practical information for the implementation of the three External Aid tools in the framework of the Finance Agreements to be signed with partnership countries, and in the framework of contracts to be signed with intermediary financing entities chosen to manage the subsidy: draw up templates/documents; advise on contractual provisions"[3].

5. Under Article 2.4 of the Contract's Specific Terms of Reference[4], the consortium's tasks were as follows:

"For each of the three External Aid tools ("bonification d’interêt", "prise de participation", and "fonds de garantie"),

(i) draw up contractual provisions in legal documents (Finance Agreements and contracts to be signed with the intermediary financing entities); and

(ii) draft any other document or provision for implementation and follow-up to be provided by the Commission's services."

6. The Contract provided for two experts to carry out the above tasks. An expert economist (category I- Head of Mission), and a legal expert (category II- 'the complainant'). The complainant's employer, 'Sopex', was not a consortium member, but a subcontractor of AESA.

7. On 6 May 2008, the Commission held a meeting with AESA. The complainant and the expert economist were present. The Commission provided the complainant with templates for three contracts. One for a finance agreement, a second for a grant agreement, and a third for a delegation agreement. The complainant had to use these templates as a basis for his work. On 15 May 2008, the Commission held another meeting with AESA to ensure the correct implementation of the chosen method.

8. During the course of the Study, each expert had, independently, to submit one interim report and one final progress report. The experts were also required to draft a report on each meeting.

9. On 28 May 2008, the expert economist submitted his draft interim report in order to prepare the third meeting. By e-mail of 29 May 2008, the Commission reminded the complainant that he should also submit a report, and that it should be drafted on the basis of the documents provided at the meeting of 6 May 2008.

10. On 30 May 2008, the Commission held a meeting with AESA and the two experts. The Commission provided them with a proposal for a summary regarding the Study, and guidelines for the legal part of the summary. This was done to give the experts a better understanding of its expectations.

11. On 31 May 2008, the expert economist submitted his first draft, on which the Commission made its observations.

12. On 2 June 2008, the complainant submitted his draft interim report for the Commission's approval.

13. On the same day, AESA requested an amendment to the Contract to extend the length of the experts' mission. It stated that the tasks the experts were asked to carry out differed from the Terms of Reference. The Commission denied this and stated that the complainant had not taken the right approach. It questioned whether an extension of the experts’ mission was necessary.

14 On 3 June 2008, the Commission contacted the complainant and clarified certain issues relating to his draft interim report. It also asked him to improve the quality of his draft in order for it to give its approval. On 6 June 2008, the Commission contacted the complainant again because it did not consider the legal part of his draft interim report to be satisfactory. The Commission again explained the approach it wished the complainant to take.

15. On 10 June 2008, during its fourth meeting with AESA, the Commission finally agreed to extend the experts’ mission by up to 10 working days. The complainant was present during the meeting.

16. On 11 June 2008, the complainant submitted the report on this meeting to the Commission.

17. On the same day, AESA asked the Commission to increase the budget to EUR 71 168 in order to pay for the new tasks the Commission wished the experts to perform.

18. On 12 June 2008, the Commission sent the experts a revised version of the report on the meeting of 10 June 2008.

19. On 18 June 2008, the complainant informed the Commission that he was unable to draw up a legal document incorporating the recommendations made by the expert economist in the latter's report. He requested the Commission to organise a further meeting with the expert economist, and to clarify the experts' tasks. The Commission refused to meet the experts, but clarified the issues raised by the complainant in his e-mail.

20. On the same day, the Contract was amended to extend the duration of the experts' missions by up to 10 days. The revised budget for the Study amounted to EUR 68 248, which was less than the increase requested by AESA.

21. In an e-mail of 20 June 2008 to AESA, the Commission stated that the professional relationship between the two experts had become strained, and that this put the satisfactory implementation of the Contract at risk. The Commission further stated that, without judging the role and responsibility of either of the experts in this "unfortunate" situation, it wished to suspend, in accordance with Article 35.1 of the General Conditions of the Framework Contract ('the General Conditions')[5], the performance of the complainant's services for two weeks.

22. At a meeting on 2 July 2008, the Commission and AESA both agreed that the mission could not be completed if the complainant continued to be part of it. It was further agreed that, by 8 July 2008, the consortium would submit the CV of three candidates from which the Commission could select a replacement for the complainant.

23. By a further e-mail to AESA of 23 July 2008, the Commission requested that the complainant be replaced in accordance with Article 17(2) of the General Conditions of the Framework Contract[6]. It stated that he did not perform his duties as stated in the Contract, and he worked on tasks which he was not requested to carry out, despite several meetings and additional guidance from the Commission.

24. On 31 July 2008, in a letter which the complainant sent to the Commission by registered post, he alleged that he had been unfairly dismissed. He claimed EUR 20 000 in damages.

25. The Commission did not reply to this letter. On 6 January 2009, the complainant lodged a complaint with the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

26. In his complaint to the Ombudsman, the complainant submitted the following allegations:

1. The Commission’s decision of 23 July 2008 to dismiss him was unfair.
2. The Commission failed to reply to his letter of 31 July 2008.

27. The complainant claimed that the Commission should take a position on his claims as specified in his letter of 31 July 2008, in which he claimed EUR 20 000 in damages.

THE INQUIRY

28. On 16 February 2009, the Ombudsman opened an inquiry regarding the complainant’s allegations and claim.

29. On 4 May 2009, the Commission sent its opinion. The Ombudsman forwarded it to the complainant with an invitation to make observations, which he sent on 7 September 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Alleged unfair dismissal of the complainant

Arguments presented to the Ombudsman

30. The complainant alleged that the Commission’s decision of 23 July 2008 to dismiss him was unfair.

31. In support of his allegation, the complainant submitted four arguments, outlined below.

(i) The Commission "approved" his interim report and did not indicate that it was of a poor quality.

(ii) At the meeting on 10 June 2008, the Commission informed him orally that his mission would be extended.

(iii) The professional relationship between himself and the other expert was not strained, contrary to the Commission's statement in its e-mail of 20 June 2008 to the Contractor.

(iv) The complainant's request for the increase of his remuneration led to his dismissal.

In light of these arguments, the Ombudsman understands the complainant’s allegation to be that the Commission’s decision to dismiss him was substantively unfair.

32. In its opinion, the Commission first pointed out that it had no contractual relationship with the complainant. The parties to the Contract were itself and the consortium, represented by AESA, which acted as the leader. The complainant's employer, 'Sopex', was not a consortium member, but a subcontractor of AESA. Moreover, the Contract was a global price contract, which meant that the Commission would pay AESA a pre-determined sum for the experts' work, once the work was completed. The experts were not to be paid according to the actual number of hours worked. For that reason, the complainant's remuneration was a matter which could be decided only between the complainant and Sopex, his employer.

33. The experts' interim draft reports to the Commission were informal documents, since only the consortium could submit the official reports, even if authored by the experts. Therefore, no approval of such informal documents was foreseen in the Contract. The Commission stated that it did not approve any reports or tasks carried out by the experts in accordance with the Contract's General Conditions. The Commission approved only the report concerning the meeting of 10 June 2008, but this was a different kind of report. It did not relate to the experts' study.

34. The Commission's services endeavoured to provide the complainant with as much information as possible regarding the tasks he was expected to carry out under the Contract. From the very first day of the Contract's implementation, the Commission noticed the difficulties the complainant had in carrying out his duties. Several meetings had to be organised to clarify his tasks, namely, on 6, 28 and 29 May 2008. In his e-mail of 18 June 2008[7] to the Commission, the complainant himself recognised that he was having difficulty in understanding what was expected of him.

35. The Commission informed the complainant orally, at the meeting of 10 June 2008, that his mission would be extended in order for him to accomplish his tasks. This showed the Commission's goodwill towards the complainant, who was having difficulty in carrying out his tasks.

36. The Commission pointed out that two weeks after the Contract was amended in order to extend the experts' missions, there was still no improvement in the complainant's draft report. In these circumstances, pursuant to Article 35-1 of the General Conditions[8], the Commission decided to suspend the Contract for two weeks. Then, pursuant to Article 17-2 of the General Conditions[9], the Commission asked AESA to replace the complainant. During the meeting of 2 July 2008, AESA agreed to do so.

37. The professional relationship between the complainant and the other expert did not concern the Commission. However, the complainant's tasks involved drawing up a legal framework for the expert economist's proposals.

38. The Commission expressed its regrets that the explanation the consortium gave the complainant for his dismissal did not correspond with reality, despite the clear and detailed justification the Commission gave the consortium in this regard. Although the Commission made every effort to ensure that the consortium was able to provide the complainant with reasons for his dismissal, it was unable to check how the consortium actually did this, given that it could not interfere in third-party relationships.

39. In his observations, the complainant stated that he was unfairly dismissed and he maintained his claim. He referred to the Commission's non-contractual liability.

The Ombudsman's assessment

40. Article 17 of the Contract's General Conditions ("Replacement of personnel") states the following:

"(1) The Contractor shall not make changes to the agreed personnel without the prior written approval of the Contracting Authority. The Contractor must in its own initiative propose a replacement in the following cases:

a) In the event of a member of staff's death, illness or accident.

b) If it becomes necessary to replace a member of staff for any other reason beyond the Contractor's control (e.g. resignation, etc.).

(2) Moreover, in the course of the performance, and on the basis of a written and justified request, the Contracting Authority can ask for a replacement if it considers that a member of staff is inefficient or does not perform his/her duties under the contract".(Emphasis added)

41. In light of the above provision, the Ombudsman considers that the Commission, despite having no contractual relationship with the experts, can clearly influence the latters' employment relationship with the Commission’s contractors. For that reason, whenever the Commission requests an expert's removal from an EU funded project, it should do so on the basis of the above Article. It should provide fair and objective grounds to justify its request.

42. In its e-mail of 23 July 2008 to AESA, the Commission set out the reasons for its request for the complainant to be replaced, namely, the poor quality of his performance. The Commission's relevant e-mail read as follows:

"As requested and as foreseen by Article 17(2) of the General Conditions, we confirm in writing our request for a change of the legal expert for the study in question.

The justification for this request is that, in our opinion, Mr [name of the complainant] did not perform his duties as stated in the contract (specifically, he worked on tasks that were not requested from him) and this was despite several meetings we had with the experts on what was required, where he was present, and additional explanations/guidance that went beyond what was formally foreseen in the Terms of Reference.

In addition, the working relations within the team of 2 experts had, in our opinion, become strained (cfr. exchange of e-mails on 18 and 19 June 2008). We therefore finally concluded, at our meeting of 2 July, that it was no longer possible to continue with this legal expert as we felt that no satisfactory result would be obtained for the study (cf. terms of reference)."

43. The complainant considers that the Commission's request to dismiss him was unfounded and unfair. In his view, at the outset, the Commission was satisfied with his work and approved it. It then increased his remuneration. In addition, during a meeting, the Commission ensured him that his mission would be extended. In its opinion, the Commission denied having made this positive assessment.

44. The Ombudsman notes that the complainant’s mission was extended for ten days, and the budget for AESA was increased accordingly. However, according to the Commission, the purpose of the extension was to give the complainant the chance to improve his work, and not to reward him for work done. This showed the Commission’s fairness. The complainant did not succeed in demonstrating that he could improve his work.

45. Moreover, the increase of the complainant’s remuneration can be reasonably considered as corresponding to the above extension, and to his additional tasks agreed between AESA and the Commission. Again, it was not a reward for his performance.

46 Furthermore, on the basis of Article 26 of the Contract's General Conditions[10], the Commission could not formally approve the complainant’s interim report, since his work had first to be approved by the contractor, and then submitted to the Commission by the contractor. In light of these facts, the Ombudsman understands that all discussion between the Commission, AESA and the complainant on his drafts was only preliminary steps.

47. Finally, there must have been some doubt about the quality of the complainant’s work if a series of meetings had to be organised concerning his drafts (meetings on 6, 15, 30 May 2008, and 10 June 2008). In addition, on 3 and 6 June 2008, the Commission itself contacted the complainant and asked him to improve his work. Furthermore, by e-mail, it clarified certain issues relating to his interim draft, and asked him to work on his report again before it could give its approval. It also provided the complainant with supporting material in order to help him to carry out an in-depth analysis.

48. As regards the complainant’s argument that his professional relationship with the expert economist was not such as to influence the quality of his reports, the Ombudsman notes that close collaboration was required between the experts if they were to carry out their respective duties: the legal expert had to implement the expert economist's proposals, once approved by AESA. On the basis of an exchange of e-mails dated 18 June 2008 between the expert economist and the Commission[11], it appears that a disagreement had arisen between the experts. This disagreement was also evident from the complainant's e-mail of 19 June 2008[12] to the expert economist, a copy of which the complainant sent to the Commission, concerning their respective obligations under the Contract.

49. In light of the above, the Ombudsman considers that the Commission provided objective grounds for its request that the complainant should be dismissed, and that there is no basis to consider that its decision to do so was substantively unfair.

50. In these circumstances, the Ombudsman does not find any instance of maladministration as regards the complainant's allegation, and his claim cannot be sustained.

51. However, the Ombudsman considers it important to comment on the Commission’s statement in its opinion that "it was unable to check how the consortium carried out the complainant's dismissal given that it could not interfere in third-party relationships".

52 The Ombudsman recalls in this regard that his response to the Commission's public consultation on review of the Financial Regulation[13] expressed the view that a sub-contractor (such as an expert in the position of the complainant in the present case) should have the right to know of any criticism by the Commission of his or her performance and the right to be heard in relation to that criticism. The Ombudsman also recalls his exchange of correspondence with the Commission following a critical remark in another case concerning the replacement of sub-contracted experts[14]. In substance, the Commission took the view that the rights of an expert whose replacement was requested could be ensured by a system in which the Contractor would hear the expert and convey to the Commission any observations he or she might make. In his reply of 11 August 2010, the Ombudsman did not exclude that the communication of the Commission’s criticisms to the sub-contractor, and the opportunity to be heard in relation thereto, could both be delivered by the Contractor.

53. In this context, the Ombudsman considers it useful to point out that a system of the kind which the Commission appears to envisage for guaranteeing procedural fairness when the Commission requests replacement of a sub-contractor (i.e. a system which depends on the Contractor’s actions) would not be compatible with the Commission’s statement in its opinion that "it was unable to check how the consortium carried out the complainant's dismissal given that it could not interfere in third-party relationships". On the contrary, such a system would imply that the Commission has both the responsibility and the power to require the Contractor to ensure procedural fairness when the Commission requests replacement of a sub-contractor. The Ombudsman will make a further remark accordingly.

B. The Commission's alleged failure to reply to the complainant's letter of 31 July 2008

Arguments presented to the Ombudsman

54. The complainant alleged that the Commission failed to reply to his letter dated 31 July 2008. He claimed that the Commission should take a position on the claims he made in that letter.

55. The Commission stated that the letter dated 31 July 2008 was sent to the complainant's former employer, 'Sopex'. The Commission's services were sent only a copy. Furthermore, this letter contained serious accusations made against named persons. The Commission did not find it necessary to reply to this letter since, in this communication, the complainant asked Sopex to contact the Commission.

The Ombudsman's assessment

56. The Ombudsman notes that on 31 July 2008, the complainant sent the Commission a short covering letter in which he wrote the following:

"Sur indication de Mr R. W. (Commission official), je vous remercie de trouver ci-joint copie de la lettre de réclamation adressée ce jour à Mr ... de Sopex mon contractant".

57. With his letter, he enclosed a copy of his letter to Sopex. In this letter, he complained about his alleged unfair dismissal and made a claim for damages in the amount of EUR 20 000 to be paid by Sopex and the Commission.

58. In accordance with Article 14 of the European Code of Good Administrative Behaviour[15], the Commission should have replied to the complainant's letter to explain that the issues he raised did not fall within its competence, even if he had already turned to Sopex.

59. However, since the Commission provided the above explanation in the course of the inquiry, the Ombudsman considers that there are no grounds for further inquiries into this allegation.

60. In light of the above, there are no grounds for further inquiries into the complainant's allegation.

Conclusions

On the basis of his inquiries into this complaint, the Ombudsman closes it with the following conclusions:

There is no instance of maladministration as regards the complainant's first allegation.

His claim cannot, therefore, be sustained.

There are no grounds for further inquiries into the complainant's second allegation.

The complainant and the Commission will be informed of this decision.

FURTHER REMARK

The Ombudsman recalls that his response to the Commission's public consultation on review of the Financial Regulation[16] expressed the view that a sub-contractor (such as an expert in the position of the complainant in the present case) should have the right to know of any criticism by the Commission of his or her performance and the right to be heard in relation to that criticism. The Ombudsman also recalls his exchange of correspondence with the Commission concerning a critical remark in another case concerning the replacement of sub-contracted experts[17]. In substance, the Commission took the view that the rights of an expert whose replacement was requested could be ensured by a system in which the Contractor would hear the expert and convey to the Commission any observations he or she might make. In his reply of 11 August 2010, the Ombudsman did not exclude that the communication of the Commission’s criticisms to the sub-contractor, and the opportunity to be heard in relation thereto, could both be delivered by the Contractor. In this context, the Ombudsman considers it useful to point out that a system of the kind which the Commission appears to envisage for guaranteeing procedural fairness when the Commission requests replacement of a sub-contractor (i.e. a system which depends on the Contractor’s actions) would not be compatible with the Commission’s statement in its opinion that "it was unable to check how the consortium carried out the complainant's dismissal given that it could not interfere in third-party relationships". On the contrary, such a system would imply that the Commission has both the responsibility and the power to require the Contractor to ensure procedural fairness when the Commission requests replacement of a sub-contractor.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 27 August 2010

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[1] Regulation (EC) No 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument ('ENPI'). ENPI is the financial instrument for European neighbourhood policy ('ENP'). It is addressed to ENP partner countries including Russia and offers co-funding for promoting good governance and an equitable social and economic development process.

[2] Specific Terms of Reference of the Contract- "Framework Contract 2007- lot no 5"- "Offer request no 20008/157113".

[3] Translation from the French original version.

[4] See footnote 2.

[5] Article 35(1) of the General Conditions (EuropeAid/123314/C/SERV/Multi) states the following:

"The Contracting Authority shall be entitled to suspend the performances of the services or any part thereof for such time in such manner as it may consider necessary."

[6] Article 17(2) of the General Conditions ("Replacement of personnel")states the following:

"Moreover, in the course of performance and on the basis of a written and justified request, the Contracting Authority can ask for a replacement if it considers that a member of staff is inefficient or does not perform its duties under the contract".

[7] See the relevant paragraph: (French original version):

"… malgré les nombreuses demandes et explications fournies par la Délégation au Chef de mission, j'ai le regret de constater que je ne peux pas, sur la base de ce rapport provisoire, transcrire sur le plan juridique les définitions et recommandations figurant aux pages 7 à 19 du rapport …".

[8] See footnote 5.

[9] See footnote 6.

[10] Article 26 of the General Conditions provides the following:

"(1) The Terms of Reference of the Framework Contract and of each specific Contract specify the kinds of reports to be elaborated by the Contractor as well as the format uses.

(2) The final report shall be forwarded to the project manager not later than 60 days after the end of the period of execution of the Contract. Such report shall not bind the Contracting Authority."

[11] See e-mail dated 18 June 2008 (French original version):

"J'ai quelque peine à suivre Mr. [nom du plaignant] et je trouve parfaitement inutile de gaspiller encore plus de temps avec des réunions plénières, frasques, ... Il faudrait que Mr. [nom du plaignant] se concentre sur son domaine et essaie d'être constructif et positif."

[12] See e-mail of 19 June 2008 sent by the complainant to the expert economist (French original version):

"J'ai le regret de vous faire observer que vos recommandations sont incompréhensibles et inopérantes. En conséquence de quoi, je suis contraint, devant ces manquements, de partir des définitions officielles …".

[13] Available on the Ombudsman’s website: http://www.ombudsman.europa.eu/resources/otherdocument.faces/en/4957/html.bookmark

[14] See case 2449/2007/VIK

[15] Article 14 (1)of the European Code of Good Administrative Behaviour (http://www.ombudsman.europa.eu/resources/code.faces#hl17)

"Every letter or complaint to the Institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period."

[16] Available on the Ombudsman’s website: http://www.ombudsman.europa.eu/resources/otherdocument.faces/en/4957/html.bookmark

[17] See case 2449/2007/VIK