Strasbourg, 6 December 2006

Dear Mr J.,

On 30 July 2004, you made a complaint to the European Ombudsman against the European Commission concerning your application of 2 October 2003 under the Leonardo da Vinci Programme (reference DE/04/C/P/RF-80502).

On 2 September 2004, I forwarded the complaint to the President of the Commission. You were informed accordingly by a letter sent the same day.

In my letters of 2 September 2004, I took the view that your complaint did not extend to any issues concerning a request for documents that you had made to the Commission. However, in a fax of 31 August 2004, you informed me that you also wished to complain on that account. This communication had not yet reached me when I signed the letters that were sent out on 2 September 2004. On 13 September 2004, I therefore forwarded your fax of 31 August 2004 to the Commission and asked the latter for an opinion on the issues relating to access to documents as well. You were informed accordingly by a letter sent the same day.

On 12 September 2004, you provided further information to me relating to your case. On 4 October 2004, I forwarded a copy of this letter to the Commission.

The Commission sent its opinion on 3 December 2004. I forwarded it to you on 8 December 2004 with an invitation to make observations, which you sent on 30 December 2004.

On 13 January 2005, you forwarded to me a copy of a letter that the Commission had addressed to you on 12 January 2005.

On 17 January 2005, I asked the Commission to provide me with further information in relation to your case. The Commission sent its reply on 14 March 2005. I forwarded it to you on 30 March 2005 with an invitation to make observations, if you so wished, by 30 April 2005.

On 26 April 2005, you asked for an extension of time until 15 June 2005, which I granted by letter of 2 May 2005.

On 10 June 2005, you sent me your observations on the Commission's letter of 14 March 2005.

On 21 September 2005, you asked when you could expect my decision in this case.

On 27 September 2005, I addressed a draft recommendation to the Commission. You were informed accordingly the same day.

On 5 October 2005, you thanked me for my letter and informed me that no translation into German of the draft recommendation needed to be sent to you. In my reply of 10 October 2005, I pointed out that the translation had already been commissioned when your letter of 5 October 2005 was received. I explained that I considered it appropriate to proceed with this translation, given that the language of the case was German and that the final decision would, therefore, also have to be available in German. However, I noted that you were free to decide that English should be used as the language of the case. In your reply of 12 October 2005, you informed me that you wished to maintain German as the language of the case. On 3 November 2005, I therefore forwarded the German text of the draft recommendation to you.

The Commission sent its detailed opinion on my draft recommendation on 17 January 2006. I forwarded it to you on 18 January 2006 with an invitation to make observations by 28 February 2006.

On 23 February 2006, you asked for an extension of time until 31 March 2006, which I granted by letter of 2 March 2006.

On 31 March 2006, you sent me your observations on the Commission's detailed opinion.

On 16 June 2006, I informed the Commission's Secretary-General that I did not consider the Commission's detailed opinion to be adequate and asked whether the Commission was willing to reconsider its position. You were informed accordingly the same day. After the Secretariat-General had indicated to my Office that it would be preferable if the letter could be addressed to the President of the Commission, I addressed the same letter to Mr Barroso on 19 June 2006.

On 17 August 2006, the Commission sent me its reply (dated 27 July 2006). I forwarded it to you on 6 September 2006 for your observations, which you sent on 15 October 2006. In my letter of 6 September 2006, I also informed you of the fact that I had written to the Commission both on 16 June and on 19 June 2006 and of the reasons therefor.

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

THE COMPLAINT

Background

On 2 October 2003, the complainant, a German consultant, applied to the European Commission in response to the latter's Call for proposals 2003-2004 under the Leonardo da Vinci programme. According to the rules laid down in the Call for proposals, projects had to be submitted by 3 October 2003.

The relevant rules are laid down in Council Decision 1999/382/EC of 26 April 1999 establishing the second phase of the Community vocational training action programme 'Leonardo da Vinci' (OJ 1999, L 146, p. 33). For proposals submitted under 'Procedure C' (such as the complainant's), the relevant rules provide for both a two-step selection process, namely, (i) the selection of pre-proposals and (ii) the selection of full proposals, and the involvement of a management committee (the "Leonardo da Vinci Committee").

The relevant steps to be taken are described as follows in these rules:

"(i) Under the rules defined in the call for proposals, pre-proposals are to be submitted by the promoters to the Commission. (...)

(ii) The Commission will evaluate all the pre-proposals and, having sought the opinion of the [Leonardo da Vinci Committee], make a selection. (...)

(iii) Only promoters of successful projects will be invited to submit a full proposal to the Commission. (...)

iv) The Commission, with the assistance of independent experts, will undertake a transnational appraisal of the proposals received and establish a short-list of projects. (...)

(v) In accordance with the procedure set out in Article 7 of the Decision, the Commission shall seek the opinion of the [Leonardo da Vinci Committee] on this short-list.

(vi) The Commission will establish the final list of proposals selected and inform the [Leonardo da Vinci Committee]. (...)

(viii) The selection of pre-proposals has to be carried out within three months after the end of the period for submission of proposals as specified in the call for proposals; the process on stages (iii) to (vi) should not take more than five months."

On 22 December 2003, the Commission informed the complainant that his project could not be selected since he had failed to comply with the deadline for submitting proposals.

The complainant considered that he had complied with this deadline, given that he had sent his proposal by registered post on 2 October 2003.

The complainant contacted the Commission by telephone on 29 December 2003. In a letter sent the same day, he requested the Commission to confirm by 5 January 2004 that his project had been submitted in time, failing which he would bring court proceedings. In his letter to the Commission, the complainant also lodged complaints ("Dienstaufsichtsbeschwerden") against the person in charge of his project and against the head of the relevant department of the Commission.

Complaint 33/2004/GG

The complainant forwarded a copy of his letter to the Commission of 29 December 2003 to the European Ombudsman on the same day. In his cover letter, he asked the Ombudsman to examine the matter. This letter was therefore registered as a complaint by the Ombudsman (complaint 33/2004/GG).

Given that the complainant’s letter to the Commission had been sent on the same day as the letter to the Ombudsman, it was clear that the Commission had not yet had sufficient time to consider the matter. The complaint was therefore rejected on the basis of Article 2(4) of the Ombudsman’s Statute on 13 January 2004.

Complaint 221/2004/GG

On 15 January 2004, the complainant wrote to inform the Ombudsman that he wished to renew his complaint. This letter was therefore registered as a new complaint (complaint 221/2004/GG). The complainant did not submit any allegations but simply asked the Ombudsman to examine the matter. It appeared, however, that he considered that the Commission had failed to handle his application properly.

In its opinion, the Commission accepted that a mistake had been made. According to the Commission, a closer examination of the envelope sent by the complainant had shown that there was a hardly legible postmark bearing the date of 2 October 2003. The Commission pointed out that, in order to remedy this mistake, it had selected the complainant's project pre-proposal for the presentation of a full proposal. The complainant was originally given until 1 March 2004 to submit this full proposal. After the complainant had pointed out that he would thus dispose of less time for the presentation of the full proposal than other promoters, the Commission accepted that he should be given the same number of days to prepare his full proposal as all the other candidates had been granted.

Together with its opinion, the Commission submitted a copy of the internal note dated 28 January 2004 in which the Commission explained the approach that was suggested in the present case.

In his observations on this opinion, the complainant stressed that he had not benefited from the same amount of information as other applicants since the Commission had not transmitted any information as to how, in its view, the project set out in the pre-proposal could be improved in the full proposal, something which the Commission had done with regard to all other applicants. According to the complainant, this was a serious disadvantage that he would take into account in his final appraisal after the application procedure had terminated and in order to decide as to whether any further steps would be necessary to defend his rights. The complainant also pointed out that the Commission had not replied to his complaints ("Dienstaufsichtsbeschwerden") against the person in charge of his project and against the head of the relevant department of the Commission.

The Ombudsman considered that the Commission's failure to reply to the "Dienstaufsichtsbeschwerden" appeared to be due to a misunderstanding on the part of the Commission. In view of the latter's constructive and expeditious approach to the case, the Ombudsman took the view that there was no need to pursue this issue in the present inquiry. The complainant was however informed of the possibility to submit a new complaint regarding this issue if, contrary to expectation, the Commission should fail to deal with this matter.

As regards the substance of the case, the Ombudsman considered that the Commission had acted rapidly and constructively in order to correct the mistake that had occurred. The Ombudsman noted that the complainant had submitted that, contrary to what the Commission had said, he had not received as much information as other applicants. The Ombudsman considered that the complainant had thus submitted a new, additional allegation. In the Ombudsman's view, it was not appropriate to deal with this new allegation in his inquiry into complaint 221/2004/GG for at least two reasons. First, the complainant did not appear to have raised this issue with the Commission before submitting it to the Ombudsman. The Commission thus had not yet had the possibility to consider the matter. Second, the complainant remained free to submit a new complaint to the Ombudsman in case the Commission’s alleged failure to provide him with information should negatively affect the Commission’s decision on his full proposal. In light of the above steps taken by the Commission to correct its mistake, the Ombudsman concluded that (subject to the said proviso) there was no longer any maladministration. He therefore closed the case on 5 May 2004.

Further developments

On 21 June 2004, the Commission informed the complainant that his proposal had not been selected.

The complainant objected to this decision in a letter sent on 26 June 2004. In this letter, he criticised the fact that the persons against whom he had lodged complaints ("Dienstaufsichtsbeschwerden") had, contrary to his repeated requests, been involved in assessing his proposal. The complainant further submitted that the rejection of his proposal had been arbitrary, given that the persons who had evaluated this proposal did not appear to have the necessary expertise. He also requested access to the Commission's file and pointed out that, after having had access to this file, he would ask for damages on account of the rejection of his proposal.

The complainant further submitted that, if his pre-proposal had been handled properly, there would have been no need for him to submit a complete proposal involving high costs. He further stressed that, if his pre-proposal had been evaluated positively, he would have received (as all other applicants had done) the results of this first evaluation, which would have enabled him to take account of additional problems in his proposal. Such additional problems had only now been brought to his attention for the first time. The complainant noted that the damage that had been caused by this aspect of the Commission's handling of his case could already be expressed in precise terms. He therefore claimed EUR 2 275 for the costs related to his efforts to make the Commission consider his pre-proposal (30 hours' working time at a rate of EUR 75 per hour plus a lump sum of EUR 25 for the costs of sending faxes and making telephone calls) and EUR 8 752.60 on account of the (as it emerged) futile effort to prepare a proposal (20 working days at a rate of EUR 409 per day plus a lump sum of 7 % for costs). The total thus amounted to EUR 11 027.60.

In his letter of 26 June 2004, the complainant also pointed out that he had already asked for access to the Commission's file on several occasions and called on the Commission to set a suitable date, within three days, for the inspection of this file at the Commission's premises in Brussels.

On 14 July 2004, the complainant wrote to the Commission in order to remind it that his request for access had not yet been dealt with. The complainant therefore expressly renewed this request. He also informed the Commission that he wished to lodge complaints ("Dienstaufsichtsbeschwerden") against the person responsible for his request for access to documents and against the director in charge of the relevant unit of the Commission.

On 19 July 2004, the Commission replied to the complainant's letter of 26 June 2004. In this reply, the Commission pointed out that the complainant's full proposal had been evaluated by three independent external experts. In the Commission's view, the process had thus been objective and transparent and had respected the principle that all applicants should be treated equally. The Commission submitted that the problem that had occurred as regards the examination of the complainant's pre-proposal did not affect this conclusion. It pointed out that it had reconsidered its decision to declare the complainant's application inadmissible. The Commission also noted that, in order to avoid any discrimination as compared to other applicants, it had invited the complainant to contact its services with a view to discussing further questions in relation to his application. The Commission stressed that the complainant had not made use of this possibility. It also noted that it had given the complainant an additional amount of time to prepare his proposal. As regards access to documents, the Commission interpreted the request as one for access to the assessments of the complainant's proposal, which had been prepared by the above-mentioned experts. This request was rejected on the basis of Article 4(3) of Regulation 1049/2001. In so far as the "Dienstaufsichtsbeschwerden" were concerned, the Commission explained that it was not aware of any legal basis for such complaints in Community law. It therefore invited the complainant to provide more precise indications as to the basis of such complaints.

On 30 July 2004, the complainant made a confirmatory application, by way of fax transmission to the Secretary-General of the Commission, for access to documents under Regulation 1049/2001.

The present complaint

Also on 30 July 2004, the complainant submitted a further complaint to the Ombudsman, which was registered under reference 2437/2004/GG.

In his complaint, the complainant did not make any precise allegations and claims. However, it appeared that the complainant wished to allege that he had been discriminated against compared to other applicants. It was also clear that he considered that the Commission should pay the damages claimed in his letter of 26 June 2004 and that it should reply to the "Dienstaufsichtsbeschwerden".

As regards the Commission's argument that it had invited him to discuss any relevant issues before he submitted his proposal but that he had failed to make use of this possibility, the complainant submitted that, at the time, he had not had any questions as to the substance of his application, given that he had not received any preliminary evaluation from the Commission. The complainant further pointed out that it was the Commission's established (and reasonable) practice not to engage in such "discussions with a view to optimising applications" during an ongoing procedure. He therefore asked the Ombudsman to examine whether the Commission had indeed engaged in such discussions in the present case.

In these circumstances, the Ombudsman understood the complainant as (1) alleging that he had been discriminated against compared to other applicants, (2) claiming that the Commission should pay the damages set out in his letter of 26 June 2004 and (3) claiming that the Commission should reply to the "Dienstaufsichtsbeschwerden". The Commission was therefore asked to provide an opinion on this allegation and these claims. The complainant was informed accordingly.

The Ombudsman informed both the complainant and the Commission that the complaint did not appear to extend to the issue of access to the documents in the file.

The complainant's fax of 31 August 2004

In a fax of 31 August 2004, the complainant informed the Ombudsman that he also wished to complain about the Commission's refusal to grant him access to documents. On 13 September 2004, the Ombudsman forwarded a copy of this fax to the Commission and asked the latter for an opinion on the additional allegation as well.

The complainant's fax of 12 September 2004

On 12 September 2004, the complainant informed the Ombudsman that he had received a letter dated 2 September 2004 in which the Commission had noted that the period for replying to the complainant's confirmatory application of 30 July 2004 (which according to the Commission had been registered on 12 August 2004) had to be extended by another 15 working days (until 23 September 2004), due to the fact that several officials, whose expertise was needed in order to deal with the application, were on holiday. The complainant took the view that the decision taken by the Commission was not correct, given that the Commission should not be allowed to increase the time for dealing with applications by delaying the registration of applications and that the reason indicated by the Commission could be used to circumvent any deadline. He also expressed doubts as to whether the Commission's letter (which he claimed to have received on 11 September 2004) had indeed been sent on 2 September 2004. On 4 October 2004, the Ombudsman forwarded a copy of the complainant's fax to the Commission.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission provided a chronology of events. According to this description, the complainant's proposal had been declared inadmissible by the Commission's Selection Committee at its meeting of 16 October 2003 whereas the letter informing the complainant thereof had been sent on 22 December 2003. Still according to this chronology, the complainant's fax of 30 July 2004 had been received by the Commission on 6 August 2004.

In addition to that, the Commission presented the following comments:

The selection of proposals under the Leonardo da Vinci programme comprised two steps. The applicant first submitted a pre-proposal, which was subsequently evaluated by the Commission with the help of independent external experts. On the basis of the results of this evaluation, the applicants with the best pre-proposals were invited to submit a complete proposal.

The complainant's pre-proposal had initially been rejected because it seemed to have been submitted after the relevant deadline. This decision had been reversed after the complainant had objected to it in his letter of 29 December 2003. However, since this appeal had been received after the evaluation exercise had already been completed, the complainant's pre-proposal had, contrary to other pre-proposals, not been evaluated by external experts. In order to avoid causing the complainant to suffer any disadvantage on account of the Commission's original decision, he was nevertheless invited to present a complete proposal and to contact the Commission's services as regards any question that he might have concerning his proposal. In order to avoid any discrimination as compared to other applicants, the complainant had furthermore been given more time to submit his complete proposal.

It was acknowledged that a certain period of time had elapsed between the opinion of the Selection Committee and the Commission's letter informing the complainant of the inadmissibility of his application. This delay had been due to the fact that the decision of the Commission on pre-proposals was, within the framework of 'Procedure C', adopted after having obtained the opinion of the Leonardo da Vinci Committee and after the expiry of the period foreseen for the exercise of the European Parliament's right of control.

This was the reason why the Commission had introduced an exceptional procedure with the aim of allowing the complainant to submit a full proposal. The Commission accepted that it had been misled by the illegible postmarks (on the complainant's application) when examining the admissibility of the application and had apologised for this to the complainant. It had however seen to it that this error was corrected by accepting, on an exceptional basis, that the complainant could submit a full proposal, by inviting him to contact its services with regard to any question concerning the pre-proposal and by granting him a special period of time for submitting the full proposal.

The complainant had not suffered any damage due to the fact that his application had initially been declared inadmissible. It should be noted that, between the submission of the pre-proposal and the submission of the full proposal, several messages had been exchanged between the Commission's services and the complainant. It appeared, however, that the complainant had not made any requests regarding the possible comments by the external experts concerning his pre-proposal or the possibilities to improve his proposal during this period.

There was also no direct link between any recommendations made by external experts for the improvement of pre-proposals and the selection of proposals, given that the rate of success between the phase of pre-proposals and the phase of proposals amounted to around 50 %.

It should also be noted that there was no "right" to a subsidy in Community law. The Commission therefore did not compensate persons who had applied for a subsidy for the time they had spent preparing their proposals.

The Commission did not, therefore, share the complainant's view that he was entitled to compensation.

After having received the complainant's letter of 29 December 2003, the Commission had proceeded to re-evaluate the case. The Commission had revised its position in an appropriate way and concluded that no reproach could be made against the official in charge or the Selection Committee, which had made an error while acting in "good faith". The Commission had set out its position in its letter of 19 July 2004 in which it had explained that it was not aware of any legal basis for "Dienstaufsichtsbeschwerden" in Community law and invited the complainant to provide more precise indications as to the basis of such complaints. The complainant had not replied to this invitation.

As regards the issue of access to the file, the confirmatory application of 30 July 2004 had been registered on 12 August 2004. The period of 15 working days for replying had thus expired on 2 September 2004. On that very day, the Commission had written to the complainant in order to inform him that the relevant period had been extended. The reason that had been invoked by the Commission was perfectly legitimate. Upon re-examination of the request, the Commission had decided to release the evaluation forms of the external experts to the complainant, without however disclosing the identity of these experts. The final reply had been sent to the complainant on 24 September 2004.

The complainant's observations

In his observations, the complainant made the following comments:

The Commission accepted that the incorrect handling of his application of October 2003 was entirely its responsibility. It had however not established its allegation that this had been due to illegible postmarks on the envelope containing that application, by for example submitting a copy of the document concerned. No access had yet been granted to the document. On the basis of the evidence available, it had therefore not been shown that the circumstance alleged by the Commission had resulted in the incorrect handling of the application.

Already before the pre-proposal had been submitted, he had drawn the Commission's attention to the fact that fixing the date of 3 October 2003 as the deadline would result in German applicants being treated differently to applicants from other Member States, given that the German post offices were not open on that day because it was a national holiday. However, the Commission had refused to accept his request to change the deadline.

The claim for access to the whole file was therefore maintained.

If the Commission should indeed have had doubts as to whether his application had been sent in time, it would have been obliged to request him to submit, within 48 hours, evidence to show that the letter had been dispatched in time. However, the Commission had failed to do so.

If an evaluation by external experts were not indeed possible at the time it emerged that the pre-proposal was admissible, the Commission should have been obliged, of its own initiative and without any need for a request to that effect, to inform him of its evaluation of the pre-proposal and of its suggestions as to how to improve the latter.

In the absence of such a communication from the Commission, he had assumed that the Commission had had no fundamental objections as regards substance or form and that the Commission did not consider that the pre-proposal needed to be optimised in a fundamental way. It was on the basis of this expectation that he had prepared the full proposal.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The Ombudsman's request for further information

On 17 January 2005, the Ombudsman therefore asked the Commission (i) to comment on the complainant's argument that the Commission had failed to deal with the full scope of his request for access to the Commission's file; (ii) to provide a copy of the envelope containing the complainant's pre-proposal that was sent to the Commission in October 2003; and (iii) to provide more specific information (a) as to the legal provisions that obliged it to consult the Leonardo da Vinci Committee and possibly also Parliament in the case of applications that were held to be inadmissible on the grounds that they had been submitted late and (b) as to when the Leonardo da Vinci Committee had given its opinion and as to the expiry of the period foreseen for Parliament's right of control.

The Commission's reply

In its reply sent on 14 March 2005, the Commission made the following comments:

In his letter of 26 June 2004, the complainant had asked for access to the Commission's file to the extent that he contested the objectivity of the evaluation of his proposal by questioning the quality or the existence of the evaluations of external experts. The Commission had dealt with this request by its letter of 24 September 2004. Together with this letter, it had transmitted to the complainant the anonymised evaluation sheets of the external experts concerning his proposal. The complainant did not mention a specific document that the Commission should transmit to him. The Commission's services were therefore unable to see what the complainant meant when he indicated that the Commission had failed to grant him full access to the file.

The Leonardo da Vinci Committee had to be consulted by the Commission on the draft list of selected pre-proposals. The Committee had given a positive opinion on 17 November 2003. The draft decision had been submitted to Parliament on 17 November 2003, and the period for exercising Parliament's control rights had expired on 16 December 2003.

A copy of the envelope containing the complainant's pre-proposal that was sent to the Commission in October 2003 was submitted by the Commission together with its letter of 14 March 2005.

The complainant's observations

In his observations, the complainant maintained his complaint and made the following further comments:

Given that he had asked for access to the Commission's entire file, there had been no need for him to designate specific documents.

One of the postmarks on the envelope containing his pre-proposal was dated 2 October 2003 and was legible. It was therefore incomprehensible why the Commission had rejected the application as inadmissible. Given that the applications had to be submitted by registered letter, it would have been possible to ascertain the correct date. Applying the Commission's own procedural rules, the Commission ought to have asked him, within 48 hours of becoming aware of the relevant circumstances, to prove that the letter had been sent in good time.

The Commission incorrectly created the impression that it would have been unable to inform him of the fact that his application had been rejected as inadmissible on account of its obligation to consult the Leonardo da Vinci Committee and Parliament.

THE OMBUDSMAN'S DRAFT RECOMMENDATIONS

The draft recommendations

On 27 September 2005, the Ombudsman addressed, in accordance with Article 3(6) of his Statute, two draft recommendations(1) to the Commission. The draft recommendations were worded as follows:

(1) The Commission should deal with the full scope of the complainant's request for access to documents.

(2) The Commission should offer the complainant fair compensation in respect of the adverse consequences for him of the Commission's failure to grant him treatment equal to that afforded to other applicants whose pre-proposals had been selected and who had been invited to submit a full proposal.

This draft recommendation was based on the following considerations:

As regards the alleged discrimination

1 The Ombudsman noted that the Commission had accepted that it made a mistake when it considered the complainant's pre-proposal as having been submitted late and that it had acted rapidly and constructively when the mistake was brought to its attention. In order to correct the negative effects of that mistake, the Commission offered the complainant the possibility of submitting a full proposal.

2 In the Ombudsman's view, it was nevertheless clear that this way of proceeding did not ensure that the complainant was treated in the same way as all the other promoters whose pre-proposals had been selected. In the course of the present inquiry, the Commission confirmed that it had examined the pre-proposals with the help of external experts. It further appeared that comments made by these experts, including proposals as to how to improve the pre-proposals, had been forwarded to the applicants by the Commission. These applicants thus had the possibility to benefit from expert advice when deciding on whether and how to submit a full proposal to the Commission. It was not disputed that no such advice had been given to the complainant. In these circumstances, the Commission had failed to treat the complainant in the same way as the other applicants whose pre-proposals had been selected.

3 Even on the assumption that, due to the lapse of time, it was impossible to carry out an evaluation of the complainant's pre-proposal, the Ombudsman considered that the Commission had not done everything that was necessary and appropriate in the circumstances in order to ensure that the complainant was treated in the same way as the other applicants. In view of the importance that the evaluation of the pre-proposal had for the submission of the full proposal, the Commission should have been aware of the fact that the complainant was at a disadvantage compared to the other applicants whose pre-proposals had been evaluated and selected. In these circumstances, it would have been good administrative practice for the Commission to try and ensure that this disadvantage was minimised as far as possible. As the complainant submitted, the Commission could in particular have informed him of its evaluation of the pre-proposal and of its suggestions as to how to improve the latter. In view of the circumstances of the present case, the Ombudsman considers that such a way of proceeding could indeed be expected of an administration desirous to undo the consequences of a mistake that it had committed. However, no such steps appear to have been taken. It is true that, in its letter of 2 February 2004, informing the complainant of the decision it had taken, the Commission noted that he could contact its Directorate-General "for further information". In the Ombudsman's view, however, this rather general offer was not sufficient to guarantee that the complainant was treated in substantially the same way as those applicants whose pre-proposals had been evaluated and selected.

4 The Commission's failure to ensure such equal treatment therefore constituted maladministration.

As regards the alleged failure to grant access to the Commission's file

5 As regards procedural aspects, the Ombudsman noted that Article 8(2) of Regulation 1049/2001 provides that the time-limit for replying to confirmatory applications can be extended by 15 working days "[i]n exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents". The Ombudsman considered that the absence of several officials because they were on holidays could not be considered to constitute an "exceptional" case within the meaning of this provision that would justify an extension of time. In any event, in its letter of 2 September 2004 the Commission had noted that the extended deadline was 23 September 2004. However, the Commission's reply to the confirmatory application had only been sent on 24 September 2004.

6 As regards the substance of this claim, the complainant had unambiguously stated that his request did not concern "single documents, but the whole file". In the present case, it was clear that the Commission had so far only granted access to the (anonymised) evaluation sheets of the external experts concerning his proposal. Despite being specifically invited to comment on this issue, the Commission had still not dealt with the complainant's request for access to the extent that this concerns the other documents in its file. The Commission had submitted that the complainant had not specified the documents to which he wished to have access. The Ombudsman did not find this argument convincing. In the Ombudsman's view, the complainant's request was precise enough to allow the Commission to understand the scope of access that the complainant wished to obtain.

7 The Ombudsman's conclusion was therefore that the Commission had failed properly to deal with the complainant's request for access, both as regards procedural aspects and in so far as the substance is concerned.

As regards the claim for damages

8 The Ombudsman accepted, judging from the photocopy of the envelope containing the complainant's pre-proposal which had been provided to him, that it was indeed difficult to establish whether the complainant's pre-proposal had been submitted in time. He found it difficult to understand, however, why the complainant had not been contacted and invited to submit evidence to establish the date on which he had sent his pre-proposal to the Commission. In the Ombudsman's view, the Commission had furthermore failed to provide convincing information to show that it would have been unable to inform the complainant in good time of its decision of 16 October 2003. In these circumstances, the Ombudsman considered that the Commission had to be held accountable for the delay that occurred between its decision of 16 October 2003 and the date on which this decision was brought to the complainant's attention.

9 The Commission accepted that its initial decision (of 16 October 2003) to reject the complainant's pre-proposal as inadmissible had been due to a mistake. The Ombudsman had further found that the Commission could be held accountable for the delay that occurred between its decision of 16 October 2003 and the date on which this decision was brought to the complainant's attention. Finally, the Ombudsman concluded that the Commission had subsequently failed to ensure equal treatment between the complainant and the other promoters whose pre-proposals had been selected and who had been invited to submit a full proposal. In view of these circumstances, the Ombudsman considered that a claim for damages was well-founded in principle.

10 The Ombudsman considered that it would be good administrative practice for the Commission to offer the complainant fair compensation in respect of the adverse consequences for him of the maladministration that had occurred. In the Ombudsman's view, however, the amount that could be considered to be fair in the circumstances of the present case was certainly much lower than the amount claimed by the complainant.

The Commission's detailed opinion

In its detailed opinion, the Commission made the following comments:

As regards the facts

The pre-proposal had been declared inadmissible since the only clearly readable postmark bore the date of 5 October 2003. Following the complainant's appeal, the Commission's services had applied the principle of the benefit of the doubt and had exceptionally allowed the complainant to supply a full proposal directly.

As regards the alleged discrimination and the request for compensation

The Commission had corrected the situation that had been created by the fact that the pre-proposal had been declared inadmissible as follows:

• The complainant had exceptionally been allowed to submit a full proposal, as he had requested in his letter to the Commission of 29 December 2003.
• In this letter, the complainant had explicitly refused to have his pre-proposal evaluated at this stage. The Ombudsman's draft recommendation seemed to overlook this fact.
• In any event, the pre-proposal counselling could not have a conclusive effect on the final outcome of a full proposal, since what was evaluated was the general project idea (whereas at the full proposal stage the whole project proposal was evaluated). In any event, the complainant had renounced an ex-post evaluation of his pre-proposal.
• The applicant had been given the same number of days to prepare the full proposal as other applicants.
• The Commission had offered to the complainant the possibility to discuss questions related to the proposal with its services. However, the complainant did not make use of this possibility.
• When accepting to submit his full proposal without having the pre-proposal assessed, the complainant accepted to take a risk like all other applicants (he could at this stage have asked to invalidate the procedure or requested compensation for drafting the pre-proposal).
• The complainant could have resubmitted his proposal in the 2005 selection round, also using the comments and indications provided by the external experts that evaluated his full proposal in order to improve it.
• No reimbursement was foreseen for the preparation of a Leonardo da Vinci proposal; the same principle applied to any other education or research programme.

The allegation that the complainant had been unfairly treated and discriminated against therefore had to be rejected. The complainant's proposal had been the worst of the 48 proposals that had been evaluated.

The claim for damages was unjustified as the Commission had done what was necessary to avoid any prejudice to the complainant.

As regards access to the file

The Commission had interpreted the request for access as concerning the file related to the proposal, which consisted of the proposal and the evaluation forms. However, the Commission was disclosing - in addition to what had already been transmitted to the complainant - further documents related to the selection procedure that were relevant for understanding the reasons for the rejection of the complainant's full proposal, that is, the minutes of the Selection Committee for 'Procedure C' full proposals (all information on other applicants having been omitted).

The complainant's observations

In his observations, the complainant maintained his complaint and made the following comments:

The postmark on the envelope in which he had submitted his pre-proposal had been legible. It was therefore not clear how the relevant Selection Committee could have failed to notice this. It was to be assumed that the Committee had relied on information provided by a member of the Commission's staff who had either acted with gross negligence or deliberately supplied incorrect information.

As regards his letter of 29 December 2003, his refusal of a further check was based on the fear that he would otherwise be disadvantaged as regards timing and on the fact that he had doubts as to the objectivity of an ex-post evaluation. His refusal had therefore been intended to make the Commission implement the only approach that was correct and possible in the circumstances, that is to say, a completely new publication of 'Procedure C'. The Commission had opted for a different procedure, and thus bore the exclusive responsibility for all consequences resulting from this decision.

The Commission could at least have informed him of the comments, appraisals and proposals of its own 'reader', whom the Commission, according to its detailed opinion, used in addition to external experts. Given that this had not been done, it had to be assumed that this 'reader' had not examined the pre-proposal, although he ought to have done so, or that the Commission had, as a result of gross negligence or arbitrariness, omitted to forward the relevant assessment to him.

The Commission had still not granted access to the file. Regard should be had to the fact that the documents disclosed by the Commission bore manuscript notes such as "final version" or "final version 2". It therefore had to be suspected that several "final versions" of the assessments submitted by the Commission's experts had been produced in the present case. After having been given access to the file he would decide as to whether and against whom steps under criminal law might have to be taken.

Further correspondence
The Ombudsman's letter to the Commission

On 16 and 18 June 2006, the Ombudsman informed the Commission that he did not consider the Commission's detailed opinion to be adequate , particularly as regards the issue of access to documents. In this context, the Ombudsman noted that in this detailed opinion, the Commission did not address any of the comments that the Ombudsman had made on the procedural aspects of its handling of the request for access (see point 4.8 of the draft recommendation). As regards the substance of this request, the Ombudsman noted that the Commission had so far not even provided a list of the relevant documents, that is to say, of all the documents that concern the complainant's pre-proposal and proposal, or indicated the reasons why any of these documents that had so far not been disclosed could not be made accessible to the complainant.

The Ombudsman therefore asked the Commission to inform him whether it was willing to reconsider its position.

The Commission's reply

In its reply, the Commission made the following comments:

There was no specific file concerning the complainant's application under the Leonardo da Vinci programme. The request for access had therefore be understood as a request for access to the documents related to the complainant's proposal, namely (i) the evaluation forms and (ii) the minutes of the selection committee.

The handwritten annotations "final version" and "final version 2" could induce confusion to an external reader. However, there were not three different versions of one document, but three expert opinions drafted by three different independent experts who had filled in the same online form, which explained the existence of an identical front page for the three documents.

All relevant documents had been disclosed to the complainant.

As regards procedural aspects, the Commission regretted the delay in registering the confirmatory application of 30 July 2004, which was due to the fact that limited staff was available during the holiday period. As regards the extension of the deadline for answering this application, Regulation 1049/2001 did not limit the grounds for an extension. Applications relating to a very large document or to a very large number of documents were only mentioned as an example. The Commission considered that other circumstances might justify an extension of the time-limit, e.g. if it was necessary to consult other Commission departments or a third party, if the requested documents concerned a complex or very technical matter, if it was particularly difficult to locate the document requested or if more time was needed in order to grant partial access.

In the present case, in addition to the fact that the confirmatory application reached the Commission during a period when its resources were restricted due to the summer break, the examination of the request required the intervention of several services which had to give an opinion on the advisability of partial access to satisfy the complainant's request as much as possible.

The Commission apologised for the fact that the time-limit for replying to the confirmatory application had been exceeded by one working day.

The complainant's observations

In his observations, the complainant explained that he wished to maintain his complaint in its entirety. He made the following further comments:

The Commission's claim that there was no specific file concerning his application was not credible. The fact that the Commission had been able to present relevant documents (such as the envelope containing his pre-proposal and the evaluations) showed that such a file existed. The 'explanation' provided by the Commission for the presence of the handwritten annotations "final version" and "final version 2" was not convincing, since the experts would not have been able to put such notes on online evaluation sheets.

It was to be presumed that unknown persons had tried, after the present complaint had been received, to prove that evaluation sheets existed by signing them. However, it had apparently been overlooked that these sheets constituted online forms. It was also remarkable that the same person appeared to have signed all three documents.

The Ombudsman was therefore requested to examine

• whether the fact that the Commission did not establish or keep a specific file concerning the application constituted maladministration, given that the absence of such a file made it impossible to check the decision adopted by the Commission;
• whether and, if so, why in the present case there were several versions of online evaluation sheets and whether this fact constituted maladministration.

If it should be necessary to submit a new complaint concerning these issues, the Ombudsman should inform him accordingly.

THE DECISION

1 The relevant facts

1.1 On 2 October 2003, the complainant, a German consultant, applied to the European Commission in response to the latter's Call for proposals 2003-2004 under the Leonardo da Vinci programme.

The relevant rules are laid down in Council Decision 1999/382/EC of 26 April 1999 establishing the second phase of the Community vocational training action programme 'Leonardo da Vinci'(2). For proposals (such as the complainant's) submitted under 'Procedure C', the relevant rules provide for a two-step selection process, namely, (i) the selection of pre-proposals and (ii) the selection of full proposals, and the involvement of a management committee (the "Leonardo da Vinci Committee"). The Commission first evaluates all the pre-proposals that it receives and, having sought the opinion of the Leonardo da Vinci Committee, makes a selection. It appears that the Commission uses external experts already at the stage of selecting pre-proposals and that any recommendations for the improvement of proposals made by these experts are forwarded to the applicants.

Only applicants whose pre-proposals have been selected are invited to submit full proposals. The Commission then, once again with the help of external experts, carries out an appraisal of the proposals received and establishes a short-list of projects. After having sought the opinion of the Leonardo da Vinci Committee, the Commission establishes the list of successful projects that have been selected.

The European Parliament exercises control rights over this procedure.

It appears that the selection of pre-proposals has to be carried out within three months after the end of the period for submission of pre-proposals specified in the call for proposals, whereas the remainder of the process should not take more than five months.

1.2 According to the rules laid down in the Call for proposals concerning the present case, pre-proposals had to be submitted by 3 October 2003. At its meeting of 16 October 2003, the Commission's Selection Committee declared the complainant's pre-proposal inadmissible on the grounds that it had been submitted too late. The complainant was informed accordingly by letter of 22 December 2003, after the Commission had made the selection of pre-proposals, after the Leonardo da Vinci Committee had been heard as regards this selection, and after the period during which Parliament could intervene had elapsed.

1.3 Considering that he had complied with this deadline, since he had sent his pre-proposal by registered post on 2 October 2003, the complainant turned to both the Commission and to the European Ombudsman on 29 December 2003. Given that the Commission had not yet had sufficient time to consider the matter, this first complaint (complaint 33/2004/GG) was rejected as inadmissible by the Ombudsman on 13 January 2004.

1.4 On 15 January 2004, the complainant submitted a new complaint to the Ombudsman (complaint 221/2004/GG) and the Ombudsman opened an inquiry. In its opinion, the Commission accepted that a mistake had been made and that the complainant's pre-proposal had indeed been submitted in time. The Commission noted that, in order to remedy this mistake, it had selected the complainant's project pre-proposal for the presentation of a full proposal. The complainant had originally been given until 1 March 2004 to submit this full proposal. After the complainant had pointed out that he would thus dispose of less time for the presentation of the full proposal than other applicants, the Commission had accepted that he should be given the same number of days to prepare this full proposal as all the other candidates had received.

In his observations on this opinion, the complainant stressed that he had not benefited from the same amount of information as other applicants since the Commission had not transmitted any information as to how, in the view of the Commission, the project set out in the pre-proposal could be improved in the full proposal, something which the Commission had done with regard to all other applicants. According to the complainant, this was a serious disadvantage that he would take into account in his final appraisal after the application procedure had terminated and in order to decide as to whether any further steps would be necessary to defend his rights. The complainant also pointed out that the Commission had not replied to the complaints ("Dienstaufsichtsbeschwerden") that he had made against the person in charge of his project and against the head of the relevant department of the Commission.

The Ombudsman considered that the Commission's failure to reply to the "Dienstaufsichtsbeschwerden" appeared to be due to a misunderstanding on the part of the Commission. In view of the latter's constructive and expeditious approach to the case, the Ombudsman took the view that there was no need to pursue this issue in the present inquiry. The complainant was however informed of the possibility to submit a new complaint regarding this issue if, contrary to expectation, the Commission should fail to deal with this matter.

As regards the substance of the case, the Ombudsman considered that the Commission had acted rapidly and constructively in order to correct the mistake that had occurred. The Ombudsman noted that the complainant had submitted that, contrary to what the Commission had said, he had not received as much information as other applicants. The Ombudsman considered that the complainant had thus submitted a new, additional allegation. In the Ombudsman's view, it was not appropriate to deal with this new allegation in his inquiry into complaint 221/2004/GG for at least two reasons. First, the complainant did not appear to have raised this issue with the Commission before submitting it to the Ombudsman. The Commission thus had not yet had the possibility to consider the matter. Second, the complainant remained free to submit a new complaint to the Ombudsman in case the Commission’s alleged failure to provide him with information should negatively affect the Commission’s decision on his full proposal. In the light of the steps taken by the Commission to correct its mistake, the Ombudsman concluded that (subject to the said proviso) there was no longer any maladministration. He therefore closed the case on 5 May 2004.

1.5 On 21 June 2004, the Commission informed the complainant that his proposal had not been selected.

1.6 In a letter sent on 26 June 2004, the complainant objected to this decision and also requested access to the Commission's file. The complainant further indicated that he considered that the Commission should pay him compensation amounting to EUR 11 027.60.

In its reply of 19 July 2004, the Commission took the view that it had proceeded properly in the present case. As regards access to documents, the Commission interpreted the complainant's request as one for access to the assessments of the complainant's full proposal that had been prepared by experts. This request was rejected on the basis of Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(3) ("Regulation 1049/2001").

On 30 July 2004, the complainant made a confirmatory application for access under Regulation 1049/2001.

1.7 Also on 30 July 2004, the complainant submitted a further complaint to the Ombudsman, which was registered under reference 2437/2004/GG. On 31 August and 12 September 2004, the complainant submitted further information and extended the scope of this complaint. On the basis of these letters, the Ombudsman identified the following allegations and claims: the complainant (i) alleged that he had been discriminated against compared to other applicants; (ii) alleged that the Commission had failed to grant him access to its file in conformity with Regulation 1049/2001; (iii) claimed that the Commission should pay the damages claimed in his letter of 26 June 2004; and (iv) claimed that the Commission should reply to the "Dienstaufsichtsbeschwerden".

2 The scope of the present inquiry

2.1 In his letter to the Commission of 26 June 2004, on which the present complaint is based, the complainant explained that the amount of EUR 11 027.60 that he claimed to be due to him was derived from what he considered to be the incorrect handling of his pre-proposal by the Commission. The complainant noted that he reserved the right to claim damages for the way in which his proposal had been evaluated.

2.2 Given that the complainant has not submitted any further information or precise figures in this respect, the Ombudsman considers that the complainant's potential claim for damages arising from the Commission's evaluation of his full proposal is not covered by his complaint. The present inquiry will therefore only deal with the complainant's claim for damages arising from the Commission's handling of his pre-proposal, including the invitation to submit a full proposal.

2.3 In his letter of 26 June 2004, the complainant also submitted that persons against whom he had lodged complaints ("Dienstaufsichtsbeschwerden") had, contrary to his repeated requests, been involved in assessing his proposal.

2.4 The Ombudsman considered that this allegation was not part of the complaint that the complainant submitted to him in the present case. He therefore did not ask the Commission to provide an opinion on this issue. The complainant, who was informed about the allegations and claims on which the Ombudsman had asked the Commission to provide an opinion, did not object to this approach. In these circumstances, the present decision will not deal with this issue.

2.5 In his complaint, the complainant suggested that the Ombudsman should examine whether the Commission had engaged in discussions with other applicants during the course of the procedure with a view to enabling these applicants to optimise their applications. It appears that the complainant's remark concerns the stage after the submission of the full proposals. In view of his conclusions on the complainant's main allegations and claims (see below), the Ombudsman considers that there is no need to deal with this issue in the present inquiry.

2.6 In his observations on the Commission's opinion in the present case, the complainant noted that he had drawn the Commission's attention to the fact that fixing the date of 3 October 2003 as the deadline would result in German applicants being treated differently to applicants from other Member States, given that the German post offices were not open on that day because it was a national holiday in Germany. The complainant pointed out that the Commission had however refused to accept his request to change the deadline.

2.7 The Ombudsman takes the view that the complainant's above-mentioned remark appears to have been intended for his information and that it does not constitute an additional allegation. This aspect of the case will therefore not be covered by the present decision. The Ombudsman considers it useful to add that the mere fact that the end of a period for submitting applications falls on a public holiday in one of the Member States would not appear to be an indication of maladministration, provided that applicants from all Member States disposed of a sufficient period of time for preparing and submitting their applications.

2.8 In his observations on the detailed opinion that the Commission submitted in reply to the Ombudsman's draft recommendation, the complainant expressed the view that the Selection Committee that had declared his pre-proposal inadmissible had relied on a member of staff of the Commission who had either acted with gross negligence or deliberately supplied incorrect information. It is not clear whether this remark was meant as a further allegation. The Ombudsman considers that any such allegation should in any event not be examined in the present inquiry, given that it has not been brought to the Commission's attention yet and that the complainant has not submitted any evidence to support his view (see also point 6.3 below).

2.9 In the said observations, the complainant also suggested that documents might have been manipulated. The Ombudsman notes that as regards the evaluation of the full proposal, the Commission provided the complainant with anonymised copies of what it referred to as the opinions drafted by three different independent experts who had examined this proposal. The complainant pointed out that the documents disclosed by the Commission bore manuscript notes such as "final version" or "final version 2". In his view, it had therefore to be suspected that several "final versions" of the assessments submitted by the Commission's experts had been produced in the present case. In its further comments, the Commission confirmed that the relevant documents constituted the evaluations made by the three experts. In his last observations that were submitted in October 2006, the complainant maintained his view and asked the Ombudsman to examine whether and, if so, why in the present case there were several versions of online evaluation sheets and whether this fact constituted maladministration.

2.10 The Ombudsman notes that this further request concerns the evaluation of the full proposal by the Commission. However, and as mentioned above, the present inquiry has so far focused on the way in which the Commission has handled the complainant's pre-proposal. Given that this inquiry has already taken up a considerable period of time and has given rise to a draft recommendation, the Ombudsman takes the view that it would not be appropriate to extend its scope, at the present stage, so as to cover further issues.

2.11 The same conclusion applies to the further request made by the complainant in his last observations, according to which the Ombudsman should examine whether the fact that the Commission did not establish or keep a specific file concerning the application constituted maladministration.

2.12 The complainant is of course free to submit a new complaint concerning these two further aspects. However, the Ombudsman considers it useful make some further comments in this regard.

As regards the first of these aspects, it is not immediately obvious on what the complainant based his view that the same person appeared to have signed all three documents. The anonymised copies of the relevant documents that were submitted to the Ombudsman did not show the signatures of the persons concerned. However, when inspecting these documents more closely the Ombudsman noticed that the information provided on the first page of one of these documents differs markedly from that provided on the first pages of the other documents(4). The Ombudsman nevertheless takes the view that, before submitting a further complaint concerning this issue and the evaluation of the full proposal, it would be appropriate for the complainant to address himself to the Commission, so as to enable it to deal with any allegations and claims the complainant may wish to make in this regard.

As regards the second of these aspects, regard should be had to the fact that the present inquiry includes an allegation concerning the way in which the Commission has handled the complainant's request for access to its file. In view of the conclusions to which the inquiry has led in respect of this allegation (see point 4 below), the Ombudsman nevertheless considers it doubtful whether it would be justified to conduct a further inquiry concerning an issue that is closely linked to this allegation.

3 Alleged discrimination

3.1 The complainant alleged that he had been discriminated against compared to other applicants. This allegation was based on the fact that the Commission had not examined his pre-proposal before he had been invited to submit a full proposal. The complainant submitted that, if his pre-proposal had been handled properly, there would have been no need for him to submit a full proposal involving high costs. He further stressed that, if his pre-proposal had been evaluated, he would have received (as all other applicants had done) the results of this first evaluation. These results would have enabled him to take account of additional problems in his proposal, which had now been brought to his attention for the first time.

3.2 In its opinion, the Commission pointed out that the complainant's pre-proposal had initially been rejected because it seemed to have been submitted after the relevant deadline. This decision had been reversed after the complainant had objected to it in his letter of 29 December 2003. However, since this appeal had been received after the evaluation exercise had already been completed, the complainant's pre-proposal had, contrary to other pre-proposals, not been evaluated by external experts. In order to avoid causing the complainant to suffer any disadvantage on account of the Commission's original decision, he had nevertheless been invited to present a full proposal and to contact the Commission's services as regards any question that he might have concerning his proposal. Furthermore, in order to avoid any discrimination as compared to other applicants, the complainant had been given more time to submit his full proposal.

The Commission submitted that the complainant had not made any requests regarding the possible comments by the external experts concerning his pre-proposal or the possibilities to improve his proposal during this period. According to the Commission, there was also no direct link between any recommendations made by external experts for the improvement of proposals and the selection of proposals, given that the rate of success between the phase of pre-proposals and the phase of full proposals amounted to around 50 %.

3.3 In his observations, the complainant submitted that, if an evaluation by external experts were not indeed possible when it emerged that the pre-proposal was admissible, the Commission should have been obliged, of its own initiative and without any need for a request to that effect, to inform him of its evaluation of the pre-proposal and of its suggestions as to how to improve the latter.

3.4 The Ombudsman considers it appropriate to deal with a preliminary point first. In its detailed opinion on the draft recommendation that was made in the present case, the Commission stated that the complainant's pre-proposal had been declared inadmissible since the only clearly readable postmark on the envelope in which it had been submitted bore the date of 5 October 2003. The Commission added that, following the complainant's appeal, its services had applied the principle of the benefit of the doubt and had exceptionally allowed the complainant to supply directly a full proposal. It appears useful to recall in this context that the Commission, in its opinion on a previous complaint that the complainant had lodged concerning this case (complaint 221/2004/GG), had accepted that a mistake had been made. This is also confirmed by the internal note dated 28 January 2004 in which the Commission set out the background and the action that needed to be taken(5). According to this note, a closer examination had shown that the relevant envelope bore an (albeit hardly readable) postmark of 2 October 2003. The note arrives at a clear conclusion: "The pre-proposal should therefore have been declared eligible." It is useful to recall that the action taken by the Commission thus served to correct a mistake that had been made by its services and did not constitute an exercise whereby the complainant was given the 'benefit of the doubt'. It should also be recalled that, in its opinion in the present case, the Commission pointed out that it had apologised to the complainant for the error that had occurred.

3.5 The Ombudsman notes, however, that the Commission acted rapidly and constructively when the mistake was brought to its attention. In order to correct the negative effects of that mistake, the Commission offered the complainant the possibility of submitting a full proposal that was to be handed in by 1 March 2004, the date set for the submission of full proposals from those applicants whose pre-proposals had been selected. The Ombudsman further notes that when the complainant pointed out that this would give him less time to submit a full proposal than the other applicants, the Commission accepted that the same time should be given to him and that his full proposal should be submitted by 19 March 2004.

3.6 In the Ombudsman's view, it is nevertheless clear that this way of proceeding did not ensure that the complainant was treated in the same way as all the other promoters whose pre-proposals had been selected. In the course of the present inquiry, the Commission confirmed that it had examined the pre-proposals with the help of external experts. It further appears that comments made by these experts, including suggestions as to how to improve the pre-proposals, were forwarded to the applicants by the Commission(6). These applicants thus had the possibility to benefit from expert advice when deciding on whether and how to submit a full proposal to the Commission. It is not disputed that no such advice was given to the complainant. In these circumstances, the Commission failed to treat the complainant in the same way as the other applicants whose pre-proposals had been selected.

3.7 In order to determine whether this difference of treatment could be justified, regard must be had to the circumstances of the present case. It appears that the relevant rules provide that pre-proposals have to be assessed within a specific period of time. This period of time had elapsed when the Commission became aware of the mistake that had occurred, and the Commission explained that it was for this reason that the complainant's pre-proposal was not assessed by external experts. The Ombudsman further notes that, in the above-mentioned internal note dated 28 January 2004, the Commission pointed out that it was at this stage "materially impossible" to carry out an evaluation of the complainant's pre-proposal in view of the time that was needed to contract external experts and the fact that the full proposal should reach the Commission before the end of the "full proposal evaluation exercise", which was to take place, still according to the note, between 1 and 26 March 2004. Furthermore, the note stated that it had therefore been decided to declare the pre-proposal as selected for the presentation of a full proposal and "to take appropriate measures towards the [complainant] in order to grant equal treatment."

3.8 As the Ombudsman explained in his draft recommendation, it was unclear whether it was indeed impossible to have the complainant's pre-proposal evaluated by external experts in the present case. It should be noted that the relevant rules do not appear to set binding time-limits as regards the assessment of the second stage of the process, that is, the assessment of the full proposals. However, in the absence of further information regarding these issues and in view of his subsequent conclusions, the Ombudsman took the view that it was best to proceed on the assumption that it had indeed been "materially impossible" for the Commission to have recourse to external experts in order to assess the complainant's pre-proposal. On that basis, the Ombudsman considered that the solution outlined in the Commission's note of 28 January 2004 was indeed reasonable in the circumstances, provided that the Commission took "appropriate measures (...) in order to grant equal treatment".

3.9 In the Ombudsman's view, however, the Commission did not do everything that was necessary and appropriate in the circumstances in order to ensure that the complainant was treated in the same way as the other applicants. This is certainly true as concerns the time that was granted to applicants. It should be noted that the complainant was originally given until 1 March 2004 to submit his full proposal. It was only after the complainant objected to this that he was given the same number of days as the other applicants. Whilst this defect was thus swiftly remedied by the Commission and is therefore irrelevant for present purposes, the Commission's approach gives rise to doubts as to whether it was fully aware of what was needed in order to ensure equal treatment of all applicants. More importantly, in view of the importance that the evaluation of the pre-proposal had for the submission of the full proposal, the Commission should have been aware of the fact that the complainant was at a disadvantage compared to the other applicants whose pre-proposals had been evaluated and selected. In these circumstances, it would have been good administrative practice for the Commission to try and ensure that this disadvantage was minimised as far as possible. As the complainant submitted, the Commission could in particular have informed him of its evaluation of the pre-proposal and of its suggestions as to how to improve the latter. In view of the circumstances of the present case, the Ombudsman considers that such a way of proceeding could indeed be expected of an administration desirous to undo the consequences of a mistake that it had committed. However, no such steps appear to have been taken. It is true that, in its letter of 2 February 2004 informing the complainant of the decision it had taken, the Commission noted that he could contact its Directorate-General "for further information". In the Ombudsman's view, however, this rather general offer was not sufficient to guarantee that the complainant was treated in substantially the same way as those applicants whose pre-proposals had been evaluated and selected.

3.10 In its detailed opinion on the draft recommendation that was made in the present case, the Commission pointed out that, in his letter of 29 December 2003, the complainant had explicitly refused to have his pre-proposal evaluated at this stage. The Commission submitted that the Ombudsman's draft recommendation seemed to overlook this fact.

3.11 It is true that the statement referred to by the Commission had not been considered to be of decisive importance as regards the present case by the Ombudsman when he made his draft recommendation. This view was based on the fact that the Commission itself had not previously relied on this statement. Having again examined the relevant document, the Ombudsman continues to believe that the statement it contains does not affect his conclusions.

3.12 The relevant statement, which follows a request that the complainant should be allowed to submit a full proposal, is worded as follows: "We hereby declare explicitly that we do not agree to an ex-post evaluation of our pre-proposal on the grounds of the temporal disadvantage that would result as compared to our competitors and because of existing doubts, in the light of the above-mentioned facts, as regards the objectivity of an ex-post evaluation."

The Ombudsman considers that it emerges clearly from this statement that it was motivated by the concern that an ex-post evaluation of the pre-proposal might delay the decision to allow the complainant to submit a full proposal or might be abused with a view to finding a reason why no such permission should be granted. It is already questionable whether this statement would have been sufficient to relieve the Commission of its duty to examine the complainant's pre-proposal with the same diligence that it had afforded the pre-proposals submitted by other applicants. It should be noted in this context that the Commission's internal note of 28 January 2004 stressed that it was "materially impossible" to carry out an evaluation of the complainant's pre-proposal in view of the time-constraints. It is thus clear that the Commission did not feel obliged to refrain from carrying out such an evaluation for the mere reason that the complainant had objected to it in his letter of 29 December 2003. In the Ombudsman's view, there is in any event nothing to suggest that the statement in the letter of 29 December 2003 was also meant to prohibit the Commission from examining the complainant's pre-proposal with a view to making suggestions as to how it could be improved. Nor does it appear logical to assume that the Commission had to (and did) understand this statement in this sense. It should be noted that, in the letter of 29 December 2003, the relevant statement is followed by a statement according to which the complainant held the Commission responsible for any damage that might arise from its allegedly incorrect handling of the application. The Ombudsman considers that this remark can be understood as suggesting that the complainant expected the Commission to do more than just allow him to submit a full proposal. It should further be noted that the Commission's internal note of 28 January 2004 stresses the need "to take appropriate measures towards the [complainant] in order to grant equal treatment" without referring to the complainant's statement in his letter of 29 December 2003. Given that the said note states that the Commission has decided to allow the complainant to submit a full proposal and to take such measures, the Ombudsman considers that the Commission itself was aware of the fact that, given the circumstances, a particular effort needed to be made and that the mere permission to submit a full proposal was not enough to guarantee equal treatment.

3.13 The Ombudsman therefore maintains his view that the Commission, whilst taking steps to remedy the mistake that had occurred, did not do all it could to guarantee such equality. This is an instance of maladministration. However, for the reasons set out in point 5.17 below it does not appear appropriate to make a critical remark concerning this aspect of the case.

3.14 For the avoidance of doubt, it should be noted that the Ombudsman is aware of the fact that the complainant proceeded to submit a full proposal without having insisted on or obtained an evaluation of his pre-proposal or suggestions as to how it could be improved. In the Ombudsman's view, however, this circumstance (whilst relevant for the question as to whether the complainant is entitled to damages, which will be discussed later) does not affect his conclusion that the Commission failed to ensure that the complainant was granted treatment equal to that afforded to other applicants whose pre-proposals had been selected and who had been invited to submit a full proposal. The Commission's failure to ensure such equal treatment therefore constitutes maladministration.

4 Alleged failure to grant access to the Commission's file

4.1 The complainant alleged that the Commission had failed to grant him proper access to its file. In a further letter to the Ombudsman of 12 September 2004, the complainant informed the Ombudsman that he had received a letter dated 2 September 2004 in which the Commission had noted that the period for replying to the complainant's confirmatory application of 30 July 2004 (which according to the Commission had been registered on 12 August 2004) had to be extended by another 15 working days (until 23 September 2004) due to the fact that several officials whose expertise was needed in order to deal with the application were on holiday. The complainant took the view that the decision taken by the Commission was not correct, given that the Commission should not be allowed to increase the time for dealing with applications by delaying the registration of applications and that the reason indicated by the Commission could be used to circumvent any deadline.

4.2 In its opinion, the Commission pointed out that the confirmatory application of 30 July 2004 had been registered on 12 August 2004. The period of 15 working days for replying had thus expired on 2 September 2004. On that very day, the Commission had written to the complainant in order to inform him that the relevant period had been extended. According to the Commission, the reason that had been invoked by it had been perfectly legitimate. Upon re-examination of the request, the Commission had decided to release the evaluation forms of the external experts to the complainant, without however disclosing the identity of these experts. The final reply had been sent to the complainant on 24 September 2004.

4.3 In his observations, the complainant maintained his allegation.

4.4 In a request for further information sent on 17 January 2005, the Ombudsman asked the Commission to comment on the complainant's view that it had failed to deal with the full scope of his request for access to the Commission's file.

4.5 In its reply, the Commission submitted that the complainant had asked for access to its file to the extent that he contested the objectivity of the evaluation of his proposal by questioning the quality or the existence of the evaluations of external experts. The Commission had dealt with this request by its letter of 24 September 2004 with which it had transmitted to the complainant the anonymised evaluation sheets of the external experts concerning his proposal. The Commission pointed out that the complainant had not mentioned a specific document that the Commission should transmit to him. The Commission's services were therefore unable to see what the complainant meant when he indicated that the Commission had failed to grant him full access to the file.

4.6 In his observations, the complainant submitted that there had been no need for him to designate specific documents, given that he had asked for access to the Commission's entire file.

4.7 The Ombudsman considers that it is useful to distinguish between the procedural aspects of this allegation and the substantive issues it involves.

4.8 As regards procedural aspects, the Ombudsman notes that the complainant, in his letter to the Commission of 26 June 2004, in which he asked for access to documents, also pointed out that he had already asked for access to the Commission's file on several occasions. No further information was submitted as regards these previous attempts to gain access to the Commission's file. The Ombudsman notes, however, that the arguments that the complainant submitted to him concern the handling of his application of 26 June 2004. It is therefore this request for access (and the subsequent confirmatory application) that will be examined here.

4.9 In the absence of a reply to his request for access, the complainant submitted a confirmatory application to the Commission, which was sent by fax on 30 July 2004. According to the information provided by the Commission in its opinion, this confirmatory application was received on 6 August 2004, that is, a week later, and registered on 12 August 2004. In its opinion on the complaint, the Commission did not submit any explanations for these delays.

4.10 The Commission did not address this issue in its detailed opinion on the draft recommendation that the Ombudsman made in this case. It was only in response to a subsequent request from the Ombudsman that the Commission regretted the delay in registering the confirmatory application of 30 July 2004 and explained that this delay had been due to the fact that limited staff was available during the holiday period.

4.11 The Ombudsman notes that Article 8(1) of Regulation 1049/2001 stipulates that a confirmatory application for access shall be handled "promptly" and that a reply shall be given within 15 working days "from registration". It is obvious that the purpose of this provision could not be attained if the Commission had a discretion as to when a confirmatory application should be registered (and the deadline for dealing with it thus triggered). The Ombudsman notes that the Commission has not disputed the complainant's claim that he sent his confirmatory application by fax on 30 July 2004. It is thus clear that the Commission was already in possession of this confirmatory application on that day. In the Ombudsman's view, registering a confirmatory application nearly two weeks after it has been received cannot be considered as handling such application "promptly". The Ombudsman acknowledges that the Commission has expressed its regrets at this delay. He notes, however, that no apology was offered to the complainant. The Ombudsman further notes that the Commission tried to explain the delay by its lack of resources during the holiday period. This argument is not convincing. Even if it is understandable that the registration of a confirmatory application that arrives in the holiday period (as the complainant's did) might take a little longer than usual, the delay that occurred in the present case went beyond what could be considered acceptable in the circumstances.

4.12 In these circumstances, the Ombudsman considers that the Commission failed to handle the confirmatory application properly as regards its registration. This constitutes an instance of maladministration, and a critical remark will be made in this context.

4.13 By letter of 2 September 2004, the Commission informed the complainant that the deadline of 15 working days for replying to the confirmatory application (which expired that day) had to be extended by another 15 working days (until 23 September 2004) due to the fact that several officials whose expertise was needed in order to deal with the application were on holiday. Article 8(2) of Regulation 1049/2001 provides that the time-limit for replying to confirmatory applications can be extended by 15 working days "[i]n exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents". In its reply to the Ombudsman's specific request for comments on this and other procedural issues, the Commission correctly observed that Regulation 1049/2001 did not limit the grounds for an extension and that applications relating to a very large document or to a very large number of documents were only mentioned as an example. However, regard should be had to the fact that an extension of time is only possible in "exceptional" cases. The Ombudsman considers that the absence of several officials on holidays cannot be considered to constitute an "exceptional" case within the meaning of this provision that would justify an extension of time.

The Commission has submitted that other circumstances might justify an extension of the time-limit, e.g., if it was necessary to consult other Commission departments or a third party, if the requested documents concerned a complex or very technical matter, if it was particularly difficult to locate the document requested or if more time was needed in order to grant partial access. In the Ombudsman's view, it is not necessary further to examine whether any or all of the reasons could indeed justify an extension of the time foreseen for answering confirmatory applications. The Ombudsman notes that Article 8(2) stipulates that any extension presupposes that the applicant is informed in advance and that "detailed reasons" are given. However, the only reason that was indicated in the Commission's letter of 2 September 2004 was the one discussed above, i.e., the absence of certain officials on holiday.

4.14 I n these circumstances, the Ombudsman considers that the Commission failed to handle the confirmatory application properly as regards the extension of time it accorded itself. This constitutes an instance of maladministration, and a critical remark will be made in this context.

4.15 In any event, in its letter of 2 September 2004, the Commission noted that the extended deadline was 23 September 2004. However, the Commission's reply to the confirmatory application was only sent on 24 September 2004. In its reply to the Ombudsman's specific request for comments on this and other procedural issues, the Commission apologised for the fact that the time-limit for replying to the confirmatory application had been exceeded by one working day.

4.16 In these circumstances, the Ombudsman considers that there is no need for further inquiries as regards this aspect of the case.

4.17 As regards the substance of this claim, it should be noted that the complainant had asked for access to the file ("Akteneinsicht") in his letter of 26 June 2004. In his confirmatory application of 30 July 2004, the complainant unambiguously stated that his request did not concern "single documents, but the whole file". However, in its reply to this application the Commission had only referred to the evaluations that had been carried out by the three external experts as regards the full proposal submitted by the complainant. The Commission had granted access to an anonymised version of these evaluation sheets. However, and despite being specifically invited to comment on this issue in the Ombudsman's request for further information, the Commission had not dealt with the complainant's request for access to the extent that it concerned the other documents on its file.

4.18 The Ombudsman therefore made a draft recommendation to the effect that the Commission should deal with the full scope of the complainant's request for access to the file. In this draft recommendation, the Ombudsman pointed out that he did not consider the Commission's argument, according to which the complainant had not specified the documents he wished to have access to, to be convincing. The complainant has asked for access to the whole of the Commission's file concerning his case. In the Ombudsman's view, the complainant's request was thus precise enough to allow the Commission to understand the scope of access that the complainant wished to obtain.

4.19 In its detailed opinion, the Commission submitted that it had interpreted the request for access as concerning the file related to the proposal, which consisted of the proposal and the evaluation forms. The Commission added, however, that it had decided to disclose further documents related to the selection procedure that were relevant for understanding the reasons for the rejection of the complainant's full proposal, that is, the minutes of the Selection Committee for 'Procedure C' full proposals (all information on other applicants having been omitted).

4.20 In his observations, the complainant took the view that the Commission had still not granted proper access to the file. The complainant pointed out that the documents disclosed by the Commission bore manuscript notes such as "final version" or "final version 2". It therefore had to be suspected that several "final versions" of the assessments submitted by the Commission's experts had been produced in the present case.

4.21 In its reply to the Ombudsman's request for comments on this issue, the Commission submitted that there was no specific file concerning the complainant's application under the Leonardo da Vinci programme. According to the Commission, the request for access had therefore be understood as a request for access to the documents related to the complainant's proposal, namely (i) the evaluation forms and (ii) the minutes of the selection committee. The Commission took the view that a ll relevant documents had been disclosed to the complainant.

4.22 In his observations, the complainant maintained his complaint. He expressed the view that the Commission's claim that there was no specific file concerning his application was not credible. According to the complainant, the fact that the Commission had been able to present relevant documents (such as the envelope containing his pre-proposal and the evaluations) showed that such a file existed.

4.23 The Ombudsman notes that the complainant asked the Commission for access to its file. Given that the complainant had submitted a pre-proposal and a proposal to the Commission, it appears logical to assume that the request had to be understood as referring to all documents concerning these applications that were in the Commission's possession. It should be noted in this context that, if an institution considers that a request for access is not sufficiently precise, it shall ask the applicant to clarify his request and assist him in doing so (Article 6(2) of Regulation 1049/2001). However, no such request for clarification appears to have been addressed to the complainant in the present case. The Ombudsman acknowledges that the Commission, in its detailed opinion, agreed to grant the complainant access to further documents. However, it is still far from clear whether the documents that the Commission has released to the complainant so far constitute all the documents on its file, that is to say, all the documents that are relevant for the complainant's pre-proposal, his full proposal and the Commission's handling of these proposals. As the complainant correctly observed, the documents disclosed so far and the information contained in these documents suggest that the Commission's file could contain further documents that might be relevant in this context. Even if the Commission's claim that there is no specific file (in the formal sense) concerning the complainant's case were to be accepted, the Ombudsman fails to see why the Commission should be unable to deal with a request for access to all the documents that are relevant for the complainant's pre-proposal, his full proposal and the Commission's handling of these proposals.

4.24 The Ombudsman therefore continues to believe that the Commission has failed to grant proper access to its file. This constitutes an instance of maladministration.

4.25 For the avoidance of doubt, it should be noted that a request for access made under Regulation 1049/2001 does not oblige the administration to disclose all the documents concerned. A refusal to disclose a document is justified if one of the exceptions set out in Regulation 1049/2001 applies. However, given that so far the Commission has neither provided a list of all the relevant documents nor explained why other documents that may be part of its file are protected by one of the exceptions set out in Regulation 1049/2001, it is impossible at this stage to determine whether further documents should be disclosed to the complainant. What is clear, however, is that the Commission ought to consider the possibility of granting access for each of the relevant documents and then inform the complainant of the results of this examination.

5 Claim for damages

5.1 The complainant claimed that the Commission should pay the damages set out in his letter of 26 June 2004.

5.2 In its opinion, the Commission acknowledged that a certain period of time had elapsed between the opinion of the Selection Committee and the Commission's letter informing the complainant of the inadmissibility of his application. According to the Commission, this delay had been due to the fact that the decision of the Commission on pre-proposals had been adopted, within the framework of 'Procedure C', after having obtained the opinion of the relevant Committee and after the expiry of the period foreseen for Parliament's right of control.

The Commission further submitted that the complainant had not suffered any damage due to the fact that his application had initially been declared inadmissible (see the arguments already set out in point 2.2 above). It also stressed that there was no 'right' to a subsidy in Community law. The Commission therefore did not compensate persons who had applied for a subsidy for the time they had spent preparing their proposals.

5.3 In his observations, the complainant maintained his view.

5.4 Given that the Commission's initial decision to declare the pre-proposal inadmissible forms the background (and the origin) of the present complaint, the Ombudsman considers it necessary to start his examination of the present claim by considering this issue more closely. Following a request made to this effect by the Ombudsman, the Commission presented a photocopy of the envelope containing the complainant's pre-proposal that was sent to the Commission in October 2003. Judging from this photocopy, it was indeed difficult to establish whether the complainant's pre-proposal had been submitted in time. The Ombudsman finds it difficult to understand, however, why the complainant was not contacted and invited to submit evidence to establish the date on which he had sent his pre-proposal to the Commission. Given that applicants had been required to send their applications by registered post, the issue could have been clarified easily. The Ombudsman finds it even harder to understand why the letter informing the complainant of the (presumed) inadmissibility was only sent on 22 December 2003, more than two months after the Commission's Selection Committee had decided on the issue (on 16 October 2003). In its opinion, the Commission appeared to argue that it had to consult the Leonardo da Vinci Committee first and wait until the time during which Parliament could exercise its control rights had expired before it could write to the complainant. The Ombudsman thereupon asked the Commission to provide more specific information as to the legal provisions on which this view was based. In the Ombudsman's view, the Commission's reply fails to provide convincing evidence to show that it would have been unable to inform the complainant in good time of its decision of 16 October 2003. In these circumstances, the Ombudsman considers that the Commission must be held accountable for the delay that occurred between its decision of 16 October 2003 and the date on which this decision was brought to the complainant's attention.

5.5 As noted above (point 3.4), the Commission accepts that its initial decision (of 16 October 2003) to reject the complainant's pre-proposal as inadmissible was due to a mistake. The Ombudsman has further found that the Commission can be held accountable for the delay that occurred between its decision of 16 October 2003 and the date on which this decision was brought to the complainant's attention (see point 5.4). Finally, the Ombudsman concluded that the Commission had subsequently failed to ensure equal treatment between the complainant and the other promoters whose pre-proposals had been selected and who had been invited to submit a full proposal (point 3.13). In view of these circumstances, the Ombudsman considered that a claim for damages was well-founded in principle.

5.6 As regards the quantum of damages, the complainant had submitted a calculation in which he claimed EUR 2 275 for the costs related to his efforts to make the Commission consider his pre-proposal (30 hours working time at a rate of EUR 75 per hour plus a lump sum of EUR 25 for the costs of sending faxes and making telephone calls) and EUR 8 752.60 on account of the (as it emerged) futile effort to prepare a proposal (20 working days at a rate of EUR 409 per day plus a lump sum of 7 % for costs).

5.7 As regards the first of those items, the Ombudsman, in his draft recommendation, considered that it could not be excluded that a citizen could ask the administration to compensate him for specific costs that he had incurred in pursuing his rights. However, it was difficult to see why the complainant should have needed to spend 30 working hours on the issue. The complainant's letter to the Commission of 29 December 2003 comprised less than two pages and its preparation could not have required a disproportionate amount of time and work. The same applied to the two complaints that the complainant had lodged with the Ombudsman (complaint 33/2004/GG and complaint 221/2004/GG). In the Ombudsman's view, the complainant had not submitted sufficient evidence to show that the efforts he had had to make in order to make the Commission accept that his pre-proposal had been submitted in time went beyond what can reasonably be expected of a citizen who approaches an EU institution with a view to obtaining a subsidy.

5.8 The Ombudsman considered that different considerations should apply as regards the costs of preparing the full proposal. As the complainant had correctly argued, it was possible that he could have prepared a better proposal, or decided to refrain from making a proposal at all, if he had received an evaluation of his pre-proposal or suggestions as to how to improve it.

The Ombudsman considered, however, that the following aspects should be considered as well:

• Even if the Commission had provided the advice that the complainant claimed he ought to have been given, there was nothing to prove that the complainant would have refrained from submitting a full proposal. However, making a full proposal did not guarantee success, given that only 50 % of the promoters who were invited to submit a proposal seemed to have been selected in the end.
• In his observations on the Commission's opinion, the complainant had submitted that he had assumed that the Commission had no fundamental objections as regards substance or form and that the Commission did not consider that the pre-proposal needed to be optimised in a fundamental way. It was on the basis of this expectation that he had prepared the full proposal. It should be noted, however, that the Commission's letter of 2 February 2004 inviting the complainant to submit a full proposal unambiguously stated that there was no guarantee that a subsidy would be paid.
• As the Commission submitted, there was no 'right' to a subsidy in Community law. Persons who applied for a subsidy could only hope to obtain the amount sought without having any guarantee of success. Applicants thus ran the risk that the time they had spent preparing their proposals was spent in vain.
• In the present case, the complainant had accepted to submit a full proposal despite the absence of an evaluation of his pre-proposal. The complainant thus had to be presumed to have accepted part of the risk that his proposal would be unsuccessful in the circumstances.

5.9 In view of the above, the Ombudsman considered that it would be good administrative practice for the Commission to offer the complainant fair compensation in respect of the adverse consequences for him of the maladministration that had occurred. However, in the draft recommendation that he addressed to the Commission to that effect, the Ombudsman stressed that the amount that could be considered to be fair in the circumstances of the present case was certainly much lower than the amount claimed by the complainant.

5.10 In its detailed opinion, the Commission submitted that it had corrected the situation that had been created by the fact that the pre-proposal had been declared inadmissible. Its reasoning was as follows:

• The complainant had exceptionally been allowed to submit a full proposal, as he had requested in his letter to the Commission of 29 December 2003.
• In this letter, the complainant had explicitly refused to have his pre-proposal evaluated at this stage.
• In any event, the pre-proposal counselling could not have a conclusive effect on the final outcome of a full proposal, since what was evaluated was the general project idea (whereas at the full proposal stage the whole project proposal was evaluated). In any event, the complainant had renounced an ex-post evaluation of his pre-proposal.
• The applicant had been given the same number of days to prepare the full proposal as other applicants.
• The Commission had offered to the complainant the possibility to discuss questions related to the proposal with its services. However, the complainant did not make use of this possibility.
• When accepting to submit his full proposal without having the pre-proposal assessed, the complainant accepted to take a risk like all other applicants (he could at this stage have asked to invalidate the procedure or requested compensation for drafting the pre-proposal).
• The complainant could have resubmitted his proposal in the 2005 selection round, also using the comments and indications provided by the external experts that evaluated his full proposal in order to improve it.
• No reimbursement was foreseen for the preparation of a Leonardo da Vinci proposal; the same principle applied to any other education or research programme.

The Commission submitted that, in view of these elements, the claim for damages was unjustified as it had done what was necessary to avoid any prejudice for the complainant.

5.11 In his observations, the complainant maintained his claim. He submitted that his refusal, in his letter of 29 December 2003, of a further check had been intended to make the Commission implement the only approach that was in his view correct and possible in the circumstances, that is to say, a completely new publication of 'Procedure C'. The complainant submitted that the Commission had opted for a different procedure, and thus bore the exclusive responsibility for all consequences resulting from this decision.

5.12 The Ombudsman notes that most of the arguments submitted by the Commission in its detailed opinion were already taken into account by him when he made his draft recommendation. For the reasons set out in point 3.12 above, he further considers that the fact that the complainant, in his letter of 29 December 2003, objected to an evaluation of his pre-proposal does not mean that the Commission's behaviour did not constitute maladministration and that the claim for damages must necessarily fail. In the Ombudsman's view, the detailed opinion thus includes only two arguments that can be considered to be new.

5.13 According to the first of these arguments, the complainant could have resubmitted his proposal in the 2005 selection round, using the comments and indications provided by the external experts that evaluated his proposal in order to improve it. However, the Commission itself, in its detailed opinion, stressed that the complainant's proposal had been the worst of the 48 proposals that had been evaluated. Seen against this background, the Commission's argument does not appear to be very convincing. It should also be noted that the complainant has argued that, if his pre-proposal had been handled properly, there would have been no need for him to submit a complete proposal involving high costs.

5.14 According to the second argument, the complainant took a deliberate risk when he accepted to present a full proposal, since he could have asked to invalidate the procedure or requested compensation for drafting the pre-proposal. The Ombudsman appreciates the fact that the Commission thus acknowledged that its handling of the complainant's pre-proposal could have entitled the complainant to claim compensation.

5.15 In the argument just mentioned, the Commission again underlined the fact that the complainant took a risk when submitting a full proposal. As the Ombudsman already acknowledged this fact and took account of it in his draft recommendation, this argument does not as such alter his conclusions regarding the claim for damages. However, in his observations on the Commission's detailed opinion, the complainant submitted that his letter of 29 December 2003 had been intended to make the Commission implement the "only" approach that was, in his view, correct and possible in the circumstances, that is to say, a completely new publication of 'Procedure C'. However, if the complainant considered that this was the only possible solution, the fact that he nevertheless accepted to submit a full proposal must indeed be considered to constitute the deliberate and informed acceptance of the risk that this way of proceeding would not lead to a satisfactory result. The Ombudsman considers that this conclusion is further strengthened by the fact that the complainant himself, in his letter of 29 December 2003, asked to be allowed to submit a full proposal, without making any suggestions that this did not constitute the proper way to proceed.

5.17 In view of the complainant's explanations in his observations, which shed new light on the whole issue, and given that the maladministration found by the Ombudsman is in any event of a limited nature, the Ombudsman considers that there is no longer any basis for the claim for damages. In the Ombudsman's view, it is clear that the principal aim that the complainant pursued with his present complaint was to obtain not a finding of maladministration, but compensation for the damages he claims to have suffered. Although the Ombudsman maintains his view that the Commission did not do all it could to guarantee that the complainant was granted equality of treatment as regards the handling of the pre-proposals (see point 3.13 above), he therefore does not consider it appropriate to make a critical remark concerning this issue.

6 Claim for a reply to the "Dienstaufsichtsbeschwerden"

6.1 The complainant claimed that the Commission should reply to his "Dienstaufsichtsbeschwerden" (complaints against individual members of the Commission's staff).

6.2 In its opinion, the Commission submitted that, after having received the complainant's letter of 29 December 2003, it had proceeded to re-evaluate the case. According to the Commission, this examination had led to the conclusion that no reproach could be made against the official in charge of the Selection Committee, which had made an error while acting in "good faith". The Commission noted that it had set out its position in its letter of 19 July 2004 in which it had explained that it was not aware of any legal basis for "Dienstaufsichtsbeschwerden" in Community law and invited the complainant to provide more precise indications as to the basis of such complaints. According to the Commission, the complainant had not replied to this invitation.

6.3 The Ombudsman considers that, by lodging his "Dienstaufsichtbeschwerden", the complainant wished to complain about the behaviour of the individual officials concerned and not about the behaviour of the institution as such. However, the Ombudsman considers that there is indeed nothing to suggest that these officials had not acted in "good faith". In the Ombudsman's view, the Commission's position thus appears to be reasonable.

6.4 No maladministration is therefore found as regards this aspect of the case.

7 Conclusion

7.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remarks:

(1) Article 8(1) of Regulation 1049/2001 stipulates that a confirmatory application for access shall be handled "promptly" and that a reply shall be given within 15 working days "from registration". The complainant's confirmatory request for access to the Commission's file was sent by fax on 30 July 2004 but only registered on 12 August 2004. The Ombudsman further notes that the Commission tried to explain the delay by its lack of resources during the holiday period. This argument is not convincing. Even if it is understandable that the registration of a confirmatory application that arrives in the holiday period (as the complainant's did) might take a little longer than usual, the delay that occurred in the present case went beyond what could be considered acceptable in the circumstances. I n these circumstances, the Ombudsman considers that the Commission failed to handle the confirmatory application properly as regards its registration. This constitutes an instance of maladministration.

Article 8(2) of Regulation 1049/2001 provides that the time-limit for replying to confirmatory applications can be extended by 15 working days "[i]n exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents". In the present case, the Commission informed the complainant that the deadline of 15 working days for replying to the confirmatory application had to be extended due to the fact that several officials whose expertise was needed in order to deal with the application were on holiday. The Ombudsman takes the view that the absence of several officials on holidays cannot be considered to constitute an "exceptional" case within the meaning of this provision that would justify an extension of time. I n these circumstances, the Ombudsman considers that the Commission failed to handle the confirmatory application properly as regards the extension of time it accorded itself. This constitutes an instance of maladministration.

(2) The complainant had asked the Commission for access to its file. Given that the complainant had submitted a pre-proposal and a proposal to the Commission, the request had to be understood as referring to all documents concerning these applications that were in the Commission's possession. However, the Commission at first only granted access to three documents. In its detailed opinion, the Commission agreed to grant the complainant access to further documents. In its reply to the Ombudsman's request for further comments on this issue, the Commission took the view that there was no specific file concerning the complainant's case and that a ll relevant documents had been disclosed to the complainant. However, it is still far from clear whether the documents that the Commission has released to the complainant constitute all the documents to which the complainant sought access, that is to say, all the documents that are relevant for the complainant's pre-proposal, his full proposal and the Commission's handling of these proposals. The Ombudsman therefore considers that the Commission has failed to grant the complainant proper access to its file. This constitutes an instance of maladministration.

7.2 Article 3(7) of the Statute of the Ombudsman provides that, after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, the Ombudsman shall send a report to Parliament and to the institution or body concerned.

7.3 In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to Parliament was of inestimable value for his work. He added that special reports should therefore not be presented too frequently, but only in relation to important matters where Parliament was able to take action in order to assist the Ombudsman(7). The Annual Report for 1998 was submitted to and approved by Parliament.

7.4 The Ombudsman considers that the present case concerns an instance of maladministration in relation to the handling of an application for EU funding and a number of instances of maladministration concerning the handling by the Commission of a request for access to documents relating to this application. In the Ombudsman's view, the instances of maladministration found by him do not raise issues of principle. The Ombudsman further notes that it is not apparent which action Parliament could take in order to assist him and the complainant in the present case. Given these circumstances, the Ombudsman concludes that it is not appropriate to submit a special report to Parliament.

7.5 The Ombudsman will therefore send a copy of this decision to the Commission and include a short summary in the annual report for 2006, which will be submitted to Parliament. The Ombudsman thus closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The draft recommendations are available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(2) OJ 1999 L 146, p. 33.

(3) OJ 2001 L 145, p. 43.

(4) To cite only one example, whereas the other two documents refer to the funding requested as having amounted to EUR 299 182, the other document mentions "0" in this context.

(5) A copy of this note was submitted by the Commission to the Ombudsman in the course of the inquiry into complaint 221/2004/GG.

(6) The Ombudsman presumes that this kind of information was only given to those promotors whose pre-proposals had been selected and only after the decision on this selection had been adopted.

(7) Annual Report for 1998, pp. 27-28.