Background to the complaint

1. The complainant represents a small company that participated in a project funded by the Research Executive Agency (the REA). The project was led by a German university and its aim was to research and develop a set of tools for the management of emergency situations. The project specifically focused on psycho-social support during crises.

2. The project was divided into several parts (so-called “work packages”). The complainant’s company was responsible for part 7. The objective was to develop a dedicated online learning platform integrating the results of other parts of the project that focused on research.

3. The REA was dissatisfied with how the project was implemented and ultimately requested the consortium to reimburse some of the funds received. Regarding part 7 of the project, the REA considered that the completion rate was 13,89% and reduced the related part of the EU contribution accordingly.

4. Considering that the REA’s assessment was unfair, the complainant turned to the Ombudsman.

The inquiry

5. The Ombudsman opened an inquiry into whether the REA’s decision to recover funds from the complainant’s company was fair.

6. In the course of the inquiry, the Ombudsman received the reply of the REA on the complaint and, subsequently, the comments of the complainant in response to the REA’s reply.

Arguments presented to the Ombudsman

7. The complainant was concerned that the REA and its reviewers had not checked the online platform his company had developed. He said that his company had received no critical feedback during the implementation of the project and that it had acted in good faith. The complainant believed that his company had fully complied with its commitments. He said that the recovery would lead to its insolvency.

8. The REA said that:

•  The project started in July 2013 and was to run for three years. The REA had the project reviewed by independent reviewers on three occasions, as its implementation progressed, namely in September 2014, February 2015 and September 2015. These reviews identified serious weaknesses in the project implementation.
•  In January 2016, the REA suspended the project for eight months to let the participants take adequate corrective measures.
•  Two independent reviewers assessed the project again in August 2016. At that stage, eight out of nine deliverables were considered unsatisfactory.
•  Given that the project was thus unlikely to achieve the objectives within the remaining time, the REA decided to terminate the project in January 2017. The REA gave the consortium 15 days to file a “reasoned request for redress”. The consortium did not use this opportunity. The project thus ended in March 2017.
•  The deliverable related to the complainant’s contribution was given a negative assessment from the reviewers in their report of 16 November 2015 and their consolidated review report of 24 August 2016. It was the responsibility of the project coordinator (that is, the leader of the consortium) to inform the members of the consortium. The REA considered that the complainant’s contribution had been achieved at a rate of 13.89%.
•  The reviewers’ assignment was to review the reports available at the time of their review and not the online platform itself. The reports and the platform formed two distinct deliverables. The platform was to be made available in the very last month of the project. As the project was terminated before it reached its last month, the platform itself was not to be assessed. In spite of this, the reviewers did visit the network address provided for the platform in the context of the exchange of arguments with the consortium. However, they were unable to access it. The consortium should have made the access more explicit at the review meetings and in its related report.
•  The recovery does not breach the principle of proportionality. The complainant’s company breached its contractual duties by not complying with the description of work (Annex I to the Grant Agreement). The REA was thus required to recover a part of the funds that had been unduly paid. The complainant received appropriate feedback in a timely manner and there was adequate time to take corrective measures. The REA rejected only part of the complainant’s costs because of the underperformance of the scientific work.

9. The complainant claimed that his company provided its services fully in line with the grant agreement and even ahead of time. Therefore, it should be paid in full. The REA should not penalize the complainant’s company because other partners underperformed. The complainant’s company developed a social platform that functions well and is fully in line with the project’s objectives. The REA should have assessed the platform because this is what matters, not the related reports. The complainant cannot understand how it is possible that the reviewers were unable to access the platform. The complainant provided them with the network address, as well as the name and the password to be able to log in. The complainant said that the issue of access had never been raised during the meetings. Finally, the complainant informed the Ombudsman that he had had to declare his company’s insolvency in the meantime.

The Ombudsman's assessment

10. The Ombudsman notes first that the material provided by the complainant and the REA in the context of this inquiry does not allow her to verify to what extent the complainant’s company actually complied with its contractual duties or not.

11. The Ombudsman finds it regrettable that the REA’s reviewers apparently did not manage to access the platform developed by the complainant’s company. However, there is no evidence that the REA committed maladministration in this respect.

12. In fact, it is not entirely clear what exactly prevented the reviewers from accessing the platform and who should bear responsibility for this. Moreover, the Ombudsman accepts the REA’s argument that it was not formally required to review the platform as such at the stage at which the reviewers assessed the project outcome. The Ombudsman further understands that the complainant’s company was responsible for developing a platform integrating the results of other parts of the project. Since the REA was dissatisfied with the input from these other parts, the platform and the quality of its content were necessarily going to be affected. The Ombudsman also confirmed that the part of the project for which the complainant was responsible^[1] received negative comments from the reviewers in their reports of 16 November 2015 and 24 August 2016.

13. The Ombudsman further notes that the project was implemented by a consortium composed of several partners. The consortium was collectively responsible for the good implementation of the project^[2]. The REA gave the consortium the opportunity to agree internally^[3] on the distribution of the EU contribution. Since the consortium did not reach an agreement internally, the REA was obliged to decide on the apportionment of the EU financial contribution itself^[4]. The Ombudsman has reviewed the material provided by the parties carefully but found nothing suggesting that the REA’s decision in this regard was unfair.

14. For all these reasons, the Ombudsman considers that there was no maladministration in this case.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration.

The complainant and the Research Executive Agency will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 22/08/2019

 

 

[1] Work package 7.

[2] Article II.2.4 of the general conditions of the grant agreement reads, in relevant part, as follows:

“Beneficiaries shall fulfil the following obligations as a consortium:

b) carry out the project jointly and severally vis-a-vis the Union, taking all necessary and reasonable measures to ensure that the project is carried out in accordance with the terms and conditions of this grant agreement”

[3] The REA’s letters of 5 December 2017 and 24 January 2018.

[4] The REA’s letter of 26 March 2018.