The European Ombudsman, P. Nikiforos Diamandouros, has opened an own-initiative inquiry into whether contractors or sub-contractors of the Commission should have access to alternative methods of dispute resolution (ADR), such as mediation. The aim is to examine whether ADR could help promote a prompt and amicable resolution of contractual disputes. Mediation is a non-binding dispute resolution process in which an independent third party assists the parties to settle their differences, but does not give an opinion on the merits of the dispute.

Background

Every year, the European Ombudsman receives a significant number of complaints against the Commission concerning contractual disputes. The complaints come from individuals, small and medium-sized enterprises and other organizations, including both contractors and sub-contractors. Whenever the Ombudsman finds maladministration by the Commission, he tries to achieve a friendly solution, if possible. However, an inquiry by the Ombudsman does not constitute mediation, because, unlike in the case of mediation, the Ombudsman must normally take a view on the merits of the dispute. Moreover, the Ombudsman is rarely able to achieve a satisfactory solution if a dispute concerns relations between a contractor and sub-contractor, since his mandate is limited to the Community's institutions and bodies and, therefore, he has no jurisdiction to deal with a complaint made directly against a contractor.

The Commission actively promotes the use of ADR, and in particular mediation, in the Member States. In 2004, the Commission proposed a Directive in which it pointed out that access to justice should include promoting access to adequate dispute resolution processes for individuals and businesses, and not just access to the judicial system. The Commission referred to mediation as a quicker, simpler and more cost-effective way to solve disputes, which makes it possible to take into account a wider range of interests of the parties, provides a greater chance of reaching an agreement which will be voluntarily respected, and preserves an amicable and sustainable relationship between them.

The Ombudsman therefore wonders whether ADR, and in particular mediation, could also be used to good effect in relation to contracts financed by the Commission. Accordingly, he has asked the Commission 1) whether it has already considered the potential usefulness of ADR, and in particular mediation, in its own sphere of activity, 2) what the results of any such considerations have been, 3) whether it proposes to become active in that regard, both in its own contractual relations and in relations between its contractors and sub-contractors, and 4) whether it sees any potential problems or drawbacks in this regard. The Commission should reply by 31 March 2006.

The European Ombudsman can launch own-initiative inquiries to tackle potential systemic problems in the EU administration.

To read the Ombudsman's letter to the Commission opening this inquiry, please visit:

 

For information about the inquiry: Ms Tina Nilsson, Legal Officer, Tel: +32 2 284 1417