Strasbourg, 6 December 2006

Dear Mr X,

On 23 June 2005 , you submitted a complaint to the European Ombudsman against the European Commission concerning the evaluation of your application for a Marie Curie Intra-European Fellowships grant.

On 22 July 2005, I forwarded your complaint to the Commission and asked it to submit an opinion. The Commission sent its opinion on 29 November 2005.

On 5 December 2005, I forwarded the Commission's opinion to you with an invitation to make observations. No observations have been received from you.

By letter of 8 June 2006, I informed you that, after a preliminary examination of the file, it seemed that further inquiries into your complaint were not necessary.

As you have requested, your complaint has been treated confidentially.

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

THE COMPLAINT

In January 2005, the complainant submitted his proposal to "Call for proposals for Marie Curie Intra-European Fellowships FP6-2004/Mobility-5"(1) ("the Call") published in the Official Journal of 15 October 2004.

By e-mail of 27 May 2005, the European Commission informed the complainant (i) that, with the help of independent experts, its services had carried out the first-step in the evaluation of the proposals submitted in the context of the Call, and (ii) that the complainant's proposal would not be included in the second-step evaluation, because it had failed to pass one or more of the thresholds mentioned in the "Guidelines on Proposal Evaluation and Selection Procedures"(2) ("the Guidelines"). The Commission attached a copy of the Evaluation Summary Report ("ESR") drawn up by the expert evaluators concerning the complainant's proposal.

By e-mail of 13 June 2005 to the Commission, the complainant protested against one part of the ESR according to which "(...) some specific aspects are relatively new to the candidate and he would need significant help in familiarizing with e.g. sociology and research techniques in social sciences." In this context, the complainant referred to his previous academic and research record, which gives him precise knowledge of the methods in question.

In its reply of 21 June 2005, the Commission explained that the aim of the ESR was not to criticise either the proposal or the candidate. It added that evaluation of the complainant's proposal was carried out, in accordance with the rules governing the evaluation process, by a team of three independent and qualified senior experts appointed in accordance with Article 11 of the Regulation (EC) No 2321/2002 of 16 December 2002 concerning the rules for the participation of undertakings, research centres and universities in, and for the dissemination of research results for, the implementation of the European Community Sixth Framework Programme (2002-2006)(3) ("Regulation 2321/2002"). According to the Commission, those experts were sufficiently qualified to evaluate the proposal, and reached a consensus on both the score and the comments awarded to the proposal. Finally, the Commission referred to the principle of equal treatment of applicants and concluded that it would only consider re-examining the evaluation of a proposal if there were a serious factual error, for example, if it were clear from a consensus report that an expert evaluator had read a wrong CV.

On 23 June 2005, the complainant submitted his complaint to the European Ombudsman. He alleged that:

(1) the evaluation of his application for a Marie Curie grant was not carried out properly; and

(2) the absence of an appeal procedure violated his procedural rights.

He claimed that the results of the evaluation of his proposal should be annulled.

In support of his first allegation, the complainant argued that the experts did not act independently but reached a consensus mark, and that the number of experts who evaluated his proposal was too small.

THE INQUIRY

The opinion of the Commission

The Ombudsman forwarded the complaint to the Commission and asked it to submit an opinion. In summary, the Commission's opinion was as follows:

The Commission first described the process of evaluation of the proposals, which were submitted in a single stage and were evaluated in two steps. The first-step evaluation focused on the scientific quality of the project and the researcher involved, and proposals failing any of the thresholds established in the first step were not retained for the second-step evaluation.

As regards the complainant's proposal, the Commission clarified that it failed to reach the threshold concerning the quality of the researcher, and was not, therefore, retained for the second-step evaluation. The Commission attached a copy of the ESR concerning the complainant's proposal. According to the ESR, the proposal was given a mark of 3.8 out of 5 as regards the quality of the researcher, the threshold being 4. The written evaluation of that aspect contains the statement, criticised in the complainant's e-mail of 13 June 2005 to the Commission, that "[...] some specific aspects are relatively new to the candidate and he would need significant help in familiarizing with e.g. sociology and research techniques in social sciences."

Concerning the complainant's first allegation (that the evaluation of his proposal was not carried out properly), the Commission took the view that the evaluation was carried out in accordance with the rules governing the evaluation process, in particular: (i) Regulation 2321/2002; (ii) the Guidelines; and the (iii) Guidance Notes for Evaluators(4).

According to the Commission, the independent senior experts evaluating the complainant's proposal were appointed in accordance with Article 11 of the Regulation 2321/2002, and were sufficiently qualified to carry out the evaluation.

As regards the complainant's remark that the experts did not act independently but reached a consensus mark, the Commission stated that the complainant's proposal was evaluated in accordance with section 0.4 of the Guidance Notes for Evaluators, according to which the two main phases of each evaluation session are:

● Individual evaluation of proposals

"Each proposal is evaluated against the applicable criteria independently by several evaluators who fill in Individual Assessment Reports (IARs) giving marks and providing comments. This part of the evaluation is normally carried out remotely by the evaluators at their place of work (...)".

● Consensus

"For each proposal a consensus should be reached and a consensus report will be prepared by one of the experts who has been nominated to act as rapporteur. This report will faithfully reflect the common views of the evaluators. After finalising the individual evaluation of the outline of or the full proposal the experts involved in the evaluation of a particular proposal will gather and agree – locally or by means of remote communication - on a joint assessment and scoring of the proposal. A Consensus report is prepared for each proposal reflecting the achieved consensus of the experts."

Thus, the expert evaluators must reach a consensus, which is, therefore, a structural pillar of the evaluation procedure.

As regards the complainant's remark that the number of experts evaluating his proposal was too small, the Commission quoted section 0.2.1 of the Guidance Notes for Evaluators according to which "[e]ach proposal will be assigned at least 3 independent experts who will normally undertake remote individual evaluations (...)".

As regards the complainant's second allegation (that his procedural rights were violated by the absence of an appeal procedure) , the Commission pointed out that Regulation 2321/2002 does not provide for a formal appeal procedure. The Commission added that it would only consider re-examining the evaluation of a proposal if there were a serious factual error, for example, if it were clear from a consensus report that an evaluator had read a wrong CV.

Nevertheless, the Commission contacted the experts involved in the evaluation of the complainant's proposal who (i) confirmed that there was no such serious factual error, and (ii) confirmed their previous assessment of the proposal. Therefore, no procedural rights of the complainant can be alleged to have been violated.

Moreover, the complainant does not allege the existence of such serious factual error. In the absence of any such error, re-evaluation of the complainant's proposal would imply a breach of the principle of equal treatment with respect to all the other proposals which were excluded.

On the above basis, the Commission concluded that it considers the complainant's allegations unfounded and his claim invalid.

The complainant's observations

The complainant did not submit any observations.

THE DECISION

1 Alleged improper evaluation of a proposal

1.1 The complainant submitted his proposal to "Call for proposals for Marie Curie Intra-European Fellowships FP6-2004/Mobility-5" ("the Call"). His proposal was not included in the second-step evaluation, because it failed to pass the threshold concerning the quality of the researcher. According to the Evaluation Summary Report ("ESR") drawn up by the external experts concerning the complainant's proposal, the proposal was given a mark of 3.8 out of 5 as regards the quality of the researcher, the threshold being 4.

In his complaint to the European Ombudsman, the complainant alleged that the evaluation of his proposal was not carried out properly, and claimed that the results of the evaluation of his proposal should be annulled.

In support of his allegation, the complainant argued that the experts involved in the evaluation of his proposal did not act independently but reached a consensus mark, and that the number of experts evaluating his proposal was too small.

1.2 In its opinion, the European Commission stated that the evaluation of the complainant's proposal was carried out in accordance with the rules governing the evaluation process, that is, (i) Regulation 2321/2002 concerning the rules for the participation of undertakings, research centres and universities in, and for the dissemination of research results for, the implementation of the European Community Sixth Framework Programme (2002-2006)(5) ("Regulation 2321/2002"), in particular Article 11 thereof, (ii) the Guidelines on Proposal Evaluation and Selection Procedures ("the Guidelines")(6), and (iii) the Guidance Notes for Evaluators(7).

In accordance with the above rules, the Commission appointed the senior experts evaluating the complainant's proposal, who performed their duties in accordance with the same rules.

1.3 The Ombudsman has examined the relevant provisions of Regulation 2321/2002, of the Guidance Notes for Evaluators and of the Guidelines, and notes that, according to first indent of Article 11(1) of Regulation 2321/2002, the Commission shall designate independent experts to assist in the evaluation required under the Sixth Framework Programme and the specific programmes. Similarly, according to section 0.2. of the Guidance Notes for Evaluators, the e valuators are expected to be independent, impartial and objective, and to behave in a professional manner throughout the evaluation process.

In this regard, the Ombudsman considers it useful to add that, according to the Guidelines(8), an independent expert is an expert who is working in a personal capacity and, in performing his/her work, does not represent any organisation.

1.4 The Ombudsman further notes that, according to the Guidelines (sections 4.1. and 4.5.) and the Guidance Notes for Evaluators (sections 0.2.1. and 0.4.): (i) each proposal will be assigned at least three independent experts who will normally undertake remote individual evaluations, and (ii) each evaluation session consists of a number of phases, including:

(a) The individual evaluation of proposals, during which each proposal is independently evaluated against the applicable criteria by several evaluators who fill in Individual Assessment Reports giving marks and providing comments;

(b) The consensus phase, during which a consensus should be reached for each proposal, and a consensus report prepared which should faithfully reflect the common views of the evaluators. For this purpose, the experts involved in the evaluation of a particular proposal should gather and agree, locally or by means of remote communication, on a joint assessment and scoring of the proposal. In this respect, the Ombudsman points out that the independent expert evaluators strive to reach a consensus only once all of them have completed their individual assessments of the proposal.

1.5 In addition, the Ombudsman notes that the Guidelines (section 4.5.) and the Guidance Notes for Evaluators (section 3.1.) provide that, if a consensus cannot be reached, the consensus report sets out the majority view, but also records any dissenting views of any particular expert.

1.6 The Ombudsman takes the view that the evaluation procedure described above appears reasonable, that the distinction between the phase in which three independent experts make their individual evaluations and the phase in which they seek a consensus is clear, and that the overall procedure appears adequately designed to be accurate and effective.

1.7 Moreover, the Ombudsman considers that the complainant has not submitted any evidence that could call in question the Commission’s position that the evaluation of the complainant's proposal was, in fact, carried out in accordance with the above procedure.

1.8 The Ombudsman therefore finds no instance of maladministration as regards the complainant's first allegation and considers that his claim cannot be sustained.

2 Alleged violation of procedural rights

2.1 T he complainant alleged that the absence of an appeal procedure violated his procedural rights.

2.2 In its opinion, the Commission pointed out that Regulation 2321/2002 does not provide for a formal appeal procedure. The Commission a dded that it would only consider re-opening the evaluation of a proposal if there were a serious factual error, for example, if it were clear from a consensus report that an expert evaluator had read a wrong CV. However, the complainant does not allege the existence of such serious factual error. In the absence of any such error, re-evaluation of his proposal would imply a breach of the principle of equal treatment with respect to all the other excluded proposals.

Nevertheless, the Commission contacted the experts involved in the evaluation of the complainant's proposal who (i) confirmed that there was no such serious factual error, and (ii) confirmed their previous assessment of the proposal.

2.3 The Ombudsman first notes that, as the Commission correctly remarks, Regulation 2321/2002 does not provide for a formal appeal procedure.

The Ombudsman points out, however, that this fact would not prevent the Commission from establishing an appeal procedure as part of its administrative implementation of the Regulation. Moreover, the Commission’s administrative implementation of the Regulation should aim to ensure that its decisions on applications will comply with principles of good administration such as fairness, objectivity and absence of discrimination.

The Ombudsman recalls, however, his finding in point 1.6 above, that the overall evaluation procedure involved in the present case appears adequately designed to be accurate and effective. In these circumstances, the Ombudsman does not consider that the principles of good administration require specific provision to be made for appeals in the case of unsuccessful applications.

The Ombudsman finds it useful to point out, however, that unsuccessful applicants who consider that there has been maladministration in the handling of their application have the right to complain to the European Ombudsman, that the complainant exercised that right in the present case, and that, especially if left uncorrected by the administration, a serious factual error could constitute maladministration.

2.4 The Ombudsman therefore welcomes both the fact that the Commission contacted the experts involved in the evaluation of the complainant's proposal in order to verify whether there was a serious factual error in the evaluation and the Commission’s statement that occurrence of a serious factual error would justify a re-opening of the evaluation of the proposal.

2.5 In light of the above, the Ombudsman finds no instance of maladministration as regards the alleged violation of procedural rights due to the absence of an appeal procedure.

3 Conclusion

The Ombudsman concludes that the inquiry into this complaint has not revealed an instance of maladministration. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) OJ 2004 C 255, p. 12.

(2) The Guidelines are available on the Cordis website (http://cordis.europa.eu/fp6/find-doc-specific.htm#evalproc).

(3) OJ 2002 L 355, p. 23.

(4) The Guidance Notes for Evaluators are available on the Cordis website (http://fp6.cordis.lu/ index.cfm?fuseaction=Usersite.FP6DetailsCallPage&call_id=158).

(5) O J 2002 L 355, p. 23.

(6) The Guidelines are available on the Cordis website (http://cordis.europa.eu/fp6/find-doc-specific.htm#evalproc).

(7) The Guidance Notes for Evaluators are available on the Cordis website (http://fp6.cordis.lu/ index.cfm?fuseaction=Usersite.FP6DetailsCallPage&call_id=158).

(8) The Guidelines, p. 6, footnote 7.