Strasbourg, 4 May 2005

Dear Ms. X.,

On 7 June 2004, you made a complaint to the European Ombudsman concerning the Marie Curie Fellowship awarded to you by the European Commission in 1999.

On 16 June 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 6 September 2004. I forwarded it to you on 13 September 2004 with an invitation to make observations by 31 October 2004 at the latest.

On the occasion of a telephone conversation on 15 November 2004 you informed my services that you intended to submit observations by the end of November 2004. By letter of 15 December 2004, I informed you that any observations should be forwarded to me by 31 December 2004.

On 22 December 2004, you sent me observations on the Commission's opinion.

On 19 January 2005, I submitted a proposal for a friendly solution to the Commission. The Commission sent its opinion on 6 April 2005, and I forwarded it to you on 13 April 2005 with an invitation to make observations, which you sent on 19 April 2005.

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

THE COMPLAINT

In 1999, the European Commission awarded the complainant a Marie Curie Fellowship under the Fifth Framework Programme of the European Community for Research, Technological Development and Demonstration Activities (1998-2002).

The Commission and the host institution agreed to a contract with a duration from 1 September 2000 until 31 August 2002 (24 months).

The complainant took maternity leave from 25 July 2001 until 30 April 2002 (9 months and 7 days).

On 30 May 2002, the complainant addressed herself to the host institution, asking for an extension of the date for the submission of her final report until 31 May 2003 (i.e., an extension of 9 months). The complainant stressed that she did not seek any additional payments as part of this extension of her contract.

The host institution accepted this proposal. On 14 August 2002, it forwarded the proposal to the Commission for its approval.

On 17 October 2002, the Commission sent “Amendment No 1” to the contract to the host institution. This amendment, which was signed by the Commission, stated that the Commission accepted the proposal to extend the duration of the contract. However, the amendment extended the duration of the project to “35 months and 4 days” from the commencement date (i.e., 1 September 2000). According to the amendment, the final scientific report and the final financial report, as well as the corresponding request for payment, were to cover a period of “23 months” from the commencement date.

On 6 August 2003, the host institution submitted the complainant’s final reports covering the period from 1 September 2000 until 31 May 2003 and the request for final payment amounting to EUR 13 472.

On 18 November 2003, and in the absence of a response from the Commission, the complainant sent an e-mail to her contact person at the Commission, Mrs C., asking when she could expect her final payment.

On 26 November 2003, Mrs N., another Commission official, wrote to inform the complainant that Mrs C. had forwarded the complainant’s message to her and that she would check and keep the complainant informed.

On 25 January 2004, the complainant sent a reminder to the Commission.

In an e-mail sent on 28 January 2004, Mrs N. referred to the discrepancy in figures and asked the complainant for clarifications.

On 3 February 2004, the complainant replied by fax, explaining that the overall duration of the contract had been 33 months (1 September 2000 until 31 May 2003) and not 35 months and 4 days as erroneously indicated in the amendment to the contract. The complainant pointed out that the monthly allowances had been paid for 21 months and that the allowances for three months were still outstanding.

By e-mail of 9 February 2004, the complainant asked Mrs N. to acknowledge receipt of the fax of 3 February 2004. According to the complainant, no reply was given to this message.

On 2 March 2004, the complainant sent a further reminder to Mrs N. concerning her case. In her reply of 8 March 2004, Mrs N. apologised for the delay and promised to keep the complainant informed as soon as possible.

On 16 March 2004, the complainant sent an e-mail to Mr B., head of the relevant unit in DG Research. According to the complainant, no reply was given to this message.

On 4 May 2004, the complainant received a standard message from Mrs N. informing her that the person responsible for managing Marie Curie Fellowship contracts was now Mrs M.

On 4 May 2004, the complainant addressed herself to Mrs M. According to the complainant, no reply was given to this message.

In her complaint to the Ombudsman lodged in June 2004, the complainant basically alleged that the Commission had failed to handle her final report and her request for final payment properly and in good time. She claimed that the Commission should inform her about the outcome of the assessment of her final report, transfer the final payment based on the correct calculation of a full 24 months’ fellowship immediately and pay the interest due between the legal deadline for payment (60 days) and the actual date of payment.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The relevant contract had, following the usual structure of fellowships awarded under the Fifth Framework Programme, been concluded between the Commission and the host institution. As a result, any issue concerning the implementation of the contract, including its financial aspects, were to be dealt with by the two contracting parties. The host institution then entered into a contract with the fellow covering the terms and conditions for him or her to receive the monthly payments to carry out the work in the project. As a consequence, there was no contractual relationship between the Commission and the fellow. All payments related to the project were provided by the Commission to the host institution, the latter being responsible for the correct implementation of the agreement, including the payment of the monthly allowances to the fellow.

This contractual structure meant that the obligation of the host institution to execute the monthly payments to the benefit of the fellow was based on the contract between the host institution and the fellow. For the contract in question, the typically used "General conditions" had been replaced by an agreement dated 9 August 1999.

During the first phase, the contract had been managed in a regular and timely way. Then several circumstances had occurred to complicate the case. In a message sent on 7 February 2002, the complainant had confirmed that she had taken maternity leave from 25 July 2001 until 1 February 2002 (6 months and 6 days) and asked for part-time work from 2 February 2002 until 31 May 2002 (3 months and 29 days). The Commission's services informed her of the need for written confirmation from the host institution concerning the duration of the maternity leave, in order to launch the procedure required to extend the duration of the project (and to suspend the work) through an amendment of the contract.

Following the request of the Commission's services, the host institution had sent a letter on 14 August 2002 to inform the Commission that the complainant had received the necessary internal approval for the extension of the duration of the project during the maternity leave period. On this basis, the host institution had asked the Commission for a retroactive suspension of the work to be carried out from 24 July 2001 until 30 April 2002 (9 months and 6 days). No reference had been made to a possible period of part-time work.

The amendment to the contract had been signed on 17 October 2002. The duration of the project had been indicated, after extension, as being 35 months and 4 days from the project commencement date, i.e. more than the requested extension to 33 months. This had been due to a mistake on the part of the Commission, in that the calculation had been based on the period indicated in the message of the complainant (i.e., 6 months of maternity leave plus about 4 months of part-time work) instead of the period of 9 months and 5 days officially requested by the host institution. Moreover, in the amendment letter it had been stated that both the final reports as well as the corresponding requests for payment should cover a period of 23 months, instead of the 24 months originally agreed.

Notwithstanding these errors, no objection had ever been made by the host institution or the complainant.

The request for the final payment and the final report had been submitted on 6 August 2003. Given that the miscalculation of the duration of the project had not been detected by the project officer, the financial officer in charge had based the payment analysis on the text of the contract as agreed. In a message sent on 28 January 2004 to the host institution(1), the Commission had raised the inconsistencies between the contract and the final report and asked for clarifications.

On 4 February 2004, the complainant had written to the Commission in order to explain that the overall duration of the project had been 33 months and that she had received her monthly instalments only for 21 months and not for the full 24 months.

According to the normal procedure, reflected by the "General conditions", the host institution had to advance the salary payments to the fellow and at the moment of the final payment the Commission's services verified that the fellow had been paid.

The complainant's subsequent messages asking for updated information had not been answered by the Commission. In hindsight, this was an error. The Commission apologised for not having been able to reply in time due to the complexity of the case.

On 10 May 2004, the Commission had asked the host institution by e-mail to regularise the financial report in order to make it possible to provide the final payment due under the contract. Notwithstanding a reminder sent on 12 May 2004, the host institution had not yet replied nor had the correct figures been provided.

It appeared that the difficulties in settling the final payment for the contract concerned were linked to a series of unusual misunderstandings and mistakes which had occurred during the preparation of the contract amendment. In addition, during the period concerned several officials dealing with the contract had ended their employment with the Commission and had had to be replaced. This had clearly affected the prompt closure of the relevant file.

The Commission recognised the need to regularise the contract regarding the duration of the project. Therefore, a new contract amendment had been prepared and sent to the host institution on 30 July 2004, replacing the earlier one. The final payment had been made to the host institution on 27 July 2004, once the latter had declared that all the allowances due would be paid to the fellow. A copy of the relevant letter from the host institution of 20 July 2004 was submitted by the Commission.

In conclusion, several errors had contributed to the delay in making the final payment, including errors on the Commission's side. The Commission regretted this situation and had taken steps to avoid similar situations arising in the future.

However, as regards the overall situation it was important to underline the absence of reaction and co-operation from the host institution on several occasions as well as the peculiarities of the relevant contract. These factors, together with the fact that the host institution had allowed the fellow to interact directly with the Commission, had helped to create an unusual situation which could be considered as being the main origin of the delay that had occurred.

The complainant's observations

In her observations, the complainant noted that the final instalment of her fellowship had in the meantime been paid to her by the host institution that had received the relevant amount from the Commission. However, the complainant submitted that the delay in executing this final payment had primarily been the fault of the Commission. The complainant also argued that the Commission was bound to respond to requests for final payment within a specified period of time and that in the present case the Commission had failed to respond to either the host institution's or her own requests for payment within this period of time.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

The issues in dispute between the Commission and the complainant

In her complaint to the Ombudsman lodged in June 2004, the complainant basically alleged that the Commission had failed to handle her final report and her request for final payment properly and in good time. She claimed that the Commission should inform her about the outcome of the assessment of her final report, transfer the final payment based on the correct calculation of a full 24 months’ fellowship immediately and pay the interest due between the legal deadline for payment (60 days) and the actual date of payment.

It emerged from the complainant's observations that the Commission had in the meantime transferred the final payment to the host institution which had then forwarded this sum to the complainant.

In these circumstances, the Ombudsman considered that the first two claims raised by the complainant in her complaint had been satisfied in substance and that his inquiry was therefore now limited to examining (1) the complainant's allegation that the Commission had failed to handle her final report and her request for final payment properly and in good time and (2) the complainant's claim for interest.

The Ombudsman's preliminary assessment

After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman was not satisfied that the Commission has responded adequately to the complainant's allegation and claim.

This view was based on the following considerations:

1 In 1999, the European Commission awarded the complainant a Marie Curie Fellowship under the Fifth Framework Programme of the European Community for Research, Technological Development and Demonstration Activities (1998-2002). The Commission and the host institution agreed to a contract with a duration from 1 September 2000 until 31 August 2002 (24 months). The complainant took maternity leave from 25 July 2001 until 30 April 2002 (9 months and 7 days). On 30 May 2002, the complainant addressed herself to the host institution, asking for an extension of the date for the submission of her final report until 31 May 2003 (i.e., an extension of 9 months). The host institution accepted this proposal and forwarded it to the Commission for its approval on 14 August 2002. On 17 October 2002, the Commission sent “Amendment No 1” to the contract to the host institution. This amendment, which was signed by the Commission, stated that the Commission accepted the proposal to extend the duration of the contract. However, the amendment extended the duration of the project to “35 months and 4 days” from the commencement date (i.e., 1 September 2000). According to the amendment, the final scientific report and the final financial report, as well as the corresponding request for payment, were to cover a period of “23 months” from the commencement date.

It was undisputed that these figures were erroneous and due to a mistake on the part of the Commission.

On 6 August 2003, the host institution submitted the complainant’s final reports covering the period from 1 September 2000 until 31 May 2003 and the request for final payment amounting to EUR 13 472. However, and despite numerous approaches made by the complainant between November 2003 and May 2004, the relevant amount was only released by the Commission in July 2004.

In her complaint to the Ombudsman, the complainant basically alleged that the Commission had failed to handle her final report and her request for final payment properly and in good time. She claimed that the Commission should pay the interest due between the legal deadline for payment (60 days) and the actual date of payment.

2 In its opinion, the Commission acknowledged a series of unusual misunderstandings and mistakes which had occurred during the preparation of the contract amendment. It pointed out, however, that its contract had been with the host institution, not with the complainant. According to the Commission, this contractual structure meant that the obligation of the host institution to execute the monthly payments to the benefit of the fellow was based on the contract between the host institution and the fellow. The Commission also made the following submissions: (1) Neither the host institution nor the complainant had raised objections concerning the errors that the Commission had made in the amendment; (2) during the period concerned several officials dealing with the contract had ended their employment with the Commission and had had to be replaced, something which had clearly affected the prompt closure of the relevant file; (3) the Commission's failure to reply to various inquiries by the complainant - for which the Commission apologised - had been due to the complexity of the case; (4) on several occasions, there had been an absence of reaction and co-operation from the host institution; (5) the host institution had allowed the complainant to interact directly with the Commission. According to the Commission, these factors had helped to create an unusual situation which could be considered as being the main cause of the delay that had occurred.

3 It is good administrative practice to deal with requests for payment properly and promptly. In the present case, the request for a final payment was submitted to the Commission in August 2003 whereas the relevant amount was only released in July 2004. The Ombudsman considers that none of the above arguments submitted by the Commission in order to explain this delay appears to be convincing upon a preliminary assessment.

4 As the Commission correctly observed, a distinction needed to be made between (a) the Commission's contract with the host institution and (b) the contract between the host institution and the complainant. It was also clear that the complainant had no direct claim against the Commission for the payment of her monthly instalments. The Ombudsman noted that the Commission appeared to argue that it would have been for the host institution to pay the instalments for all 24 months even if it had not yet received the relevant funds from the Commission. However, this view was not supported by any evidence. The Commission referred in this context to the "General conditions" that according to it were "typically" used for such contracts (without however submitting a copy of these conditions). However, the Commission itself noted that these "General conditions" had been replaced, for the contract concerning the complainant, by an agreement dated 9 August 1999. No copy of this agreement had been submitted to the Ombudsman. It should however be noted that in its reply of 20 July 2004 to a letter in which the Commission asked the host institution to confirm that the complainant's remaining allowances would be paid, the latter had stated "that, as in the past, we will execute the final payment to the fellow upon its receipt by the Commission". It would thus appear that the standard practice for the host institution was to make payments to the fellow only after having received the necessary funds from the Commission. In the light of the above, the Commission's failure to release the relevant funds to the host institution was thus bound to affect the complainant's interest.

5 As regards the Commission's further arguments, the following remarks should be made:

(1) Given that the request for an extension of the duration of the contract that had been submitted to the Commission had been clear and unambiguous, there was no reason for the host institution or the complainant to suspect that the Commission's decision accepting this request would be fraught with errors. The fact that neither the host institution nor the complainant immediately detected these errors and raised them with the Commission does therefore not have any importance for the present complaint. In this context, the Commission appeared to suggest that the mistake it had committed had been due to information that had previously been provided by the complainant. It should be noted, however, that the figures provided by the Commission did not tally. According to the Commission, the complainant had informed it by her e-mail of 7 February 2002 that her maternity leave had lasted from 25 July 2001 until 1 February 2002 (6 months and 6 days) and that she had asked for part-time work from 2 February 2002 until 31 May 2002 (3 months and 29 days). Even if the Commission had based itself on these figures (totalling 10 months and 5 days), it would be difficult to understand why the amendment provided for an extension of the contract to 35 months and 4 days (i.e., 11 months and 4 days more than the original duration).

(2) As regards the fact that several officials dealing with the contract may have left the Commission during the relevant period, the Ombudsman considered that such a circumstance could not relieve the Commission of its duty to deal diligently and promptly with requests and inquiries from citizens. It should in any event be noted that the complainant had addressed herself to the Commission on numerous occasions over a considerable period of time (18 November 2003, 25 January 2004, 3 February 2004, 9 February 2004, 2 March 2004, 16 March 2004 and 4 May 2004) without receiving a satisfactory answer. The Ombudsman considered that the Commission had not explained why such a consistent failure to address the complainant's concerns should be acceptable in the given circumstances.

(3) As regards the "complexity of the case" to which the Commission referred, it was difficult to see in what it could have consisted. The difficulties in the present case had been due to the erroneous figures contained in the amendment drawn up by the Commission on 17 October 2002. These difficulties could easily have been removed by replacing the erroneous amendment by a new version containing the correct figures (as the Commission had finally done on 30 July 2004).

(4) As regards the Commission submission that the host institution had repeatedly failed to react and co-operate, the Ombudsman noted that the request for clarifications that the Commission purported to have sent to the host institution on 28 January 2004 had in fact been sent to the complainant. The only other messages to which the Commission referred in its opinion and that had in effect been sent to the host institution were two e-mails of 10 and 12 May 2004. In these e-mails, the Commission had asked the host institution to change the financial report by amending the number of months for which the monthly allowances "have been paid" from "21" to "35 [months] and 4 days". The Commission was thus effectively asking the host institution to use the erroneous figure for the duration of the contract that the Commission had introduced in its amendment also in the financial report. However, perpetuating (rather than removing) errors could hardly be considered to be good administrative practice. On the basis of the evidence submitted to him, the Ombudsman therefore took the view that the Commission had not established its argument that the host institution had failed to react and co-operate properly.

(5) As regards the fact that the complainant had directly approached the Commission, the Ombudsman failed to see how this should explain that the Commission had taken nearly half a year to correct a simple and obvious error. It should also be noted that the Commission itself, by its e-mail of 28 January 2004, had asked the complainant for clarifications, instead of addressing itself to the host institution.

6 In these circumstances, the Ombudsman arrived at the preliminary conclusion that the Commission's failure to handle the final report and the request for final payment concerning the complainant's work at the host institution properly and in good time could be an instance of maladministration.

The possibility of a friendly solution

Article 3 (5) of his Statute(2) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant.

In the absence of a direct contractual link between the Commission and the complainant, the latter did not appear to have a claim for interest on account of late payment. It should be noted, however, that the errors made by the Commission as regards the amendment to its contract with the host institution and the slowness with which these errors had been rectified had resulted in a substantial delay as regards the payment of the complainant's last instalments by the host institution.

The Ombudsman therefore made the following proposal for a friendly solution to the Commission:

The Commission could consider offering the complainant reasonable financial compensation for the negative effects of the errors that it committed regarding the amendment to its contract with the host institution.

The Commission's reply

In its reply, the Commission noted that due to several misunderstandings and administrative errors, the final payment to the host institution had been delayed and, as a consequence, the complainant had not received the corresponding salaries in due time. The Commission added that a number of elements identified by the Ombudsman as well as the exceptional circumstances of the case had led it to propose to the complainant, as a friendly solution, the amount of EUR 596,11 corresponding to the interest accrued on the outstanding payment from the due date to the date of the payment. The interest had been calculated on the sum of EUR 13 472 paid on 30 July 2004 and only included interest on arrears. The amount would be paid to the complainant through the host institution.

The complainant's observations

In her observations, the complainant pointed out that she was very pleased with the Commission's proposal. She asked the Ombudsman, however, to request the Commission to inform her about when, to whom and to which account the payment was to be made.

The complainant thanked the Ombudsman and his Office for their swift and professional handling of her case. She added that without the input and the influence of the Ombudsman it would have been extremely difficult for her to resolve this case alone.

THE DECISION

1 Failure to handle fellowship properly

1.1 In 1999, the European Commission awarded the complainant a Marie Curie Fellowship under the Fifth Framework Programme of the European Community for Research, Technological Development and Demonstration Activities (1998-2002). The Commission and the host institution agreed to a contract with a duration from 1 September 2000 until 31 August 2002 (24 months).

The complainant took maternity leave from 25 July 2001 until 30 April 2002 (9 months and 7 days). On 30 May 2002, the complainant addressed herself to the host institution, asking for an extension of the date for the submission of her final report until 31 May 2003 (i.e., an extension of 9 months). The complainant stressed that she did not seek any additional payments as part of this extension of her contract.

The host institution accepted this proposal. On 14 August 2002, it forwarded the proposal to the Commission for its approval. On 17 October 2002, the Commission sent “Amendment No 1” to the contract to the host institution. This amendment, which was signed by the Commission, stated that the Commission accepted the proposal to extend the duration of the contract. However, due to a mistake on the part of the Commission the amendment extended the duration of the project to “35 months and 4 days” from the commencement date (i.e., 1 September 2000).

On 6 August 2003, the host institution submitted the complainant’s final reports covering the period from 1 September 2000 until 31 May 2003 and the request for final payment amounting to EUR 13 472.

In her complaint to the Ombudsman lodged in June 2004, the complainant basically alleged that the Commission had failed to handle her final report and her request for final payment properly and in good time. She claimed that the Commission should inform her about the outcome of the assessment of her final report, transfer the final payment based on the correct calculation of a full 24 months’ fellowship immediately and pay the interest due between the legal deadline for payment (60 days) and the actual date of payment.

1.2 From the Commission's opinion on the complaint and the complainant's observations thereon it emerged that the Commission had in the meantime transferred the final payment to the host institution which had then forwarded this sum to the complainant. In these circumstances, the Ombudsman considered that the first two claims raised by the complainant in her complaint had been satisfied in substance and that his inquiry was therefore now limited to examining (1) the complainant's allegation that the Commission had failed to handle her final report and her request for final payment properly and in good time and (2) the complainant's claim for interest.

1.3 On 19 January 2005, the Ombudsman submitted a proposal for a friendly solution to the Commission according to which the latter could consider offering the complainant reasonable financial compensation for the negative effects of the errors that it committed regarding the amendment to its contract with the host institution.

1.4 In its reply sent on 6 April 2005, the Commission noted that due to several misunderstandings and administrative errors, the final payment to the host institution had been delayed and, as a consequence, the complainant had not received the corresponding salaries in due time. The Commission added that a number of elements identified by the Ombudsman as well as the exceptional circumstances of the case had led it to propose to the complainant, as a friendly solution, the amount of EUR 596,11 corresponding to the interest accrued on the outstanding payment from the due date to the date of the payment. The interest had been calculated on the sum of EUR 13 472 paid on 30 July 2004 and only included interest on arrears. The amount would be paid to the complainant through the host institution.

1.5 In her observations, the complainant pointed out that she was very pleased with the Commission's proposal. She asked the Ombudsman, however, to request the Commission to inform her about when, to whom and to which account the payment was to be made. The complainant thanked the Ombudsman and his Office for their swift and professional handling of her case.

2 Conclusion

Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been agreed between the European Commission and the complainant. The Ombudsman trusts that the Commission will comply with the complainant's request to inform her about when, to whom and to which account the payment is to be made.

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 Commission has provided a copy of this e-mail message. However, it emerges from this document that it had been sent to the complainant, not to the host institution.

(2) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.