Strasbourg, 16-10-2002

Mr Romano Prodi
President of the European Commission
200 rue de la Loi
B-1049 Bruxelles

Mr President,

As you will be aware, I have had to deal with a considerable number of complaints directed at the European Commission over the last couple of years. The experience I have been able to gain from these cases leads me to raise an issue of a more general nature with you. I am in effect convinced that the European Ombudsman should not only react to individual cases of maladministration but also try and contribute towards improving the administration by making constructive proposals where this appears appropriate.

In addition to that, I should like to revert to a number of cases in which critical remarks have been made by me.

Elimination of maladministration by compensation

Article 3 (5) of the Statute of the European Ombudsman directs the latter to seek, as far as possible, a solution "to eliminate the instance of maladministration". The notion underlying this provision is of course that maladministration should be eradicated and that its negative effects should be repaired as far as possible. I think you will agree that whilst the European Ombudsman ought to seek such a result, the obligation to eliminate the instance of maladministration as such rests with the administration. The obligation of the institutions of the EU to comply with principles of good administration and the corresponding right of the European citizen to good administration would indeed be virtually meaningless if they did not entail a duty on the part of the administration to endeavour to undo the results of maladministration.

I am pleased to note that the practice of the European Commission has shown that it appears to subscribe to this interpretation. In case 109/98/ME, for example, three fishery inspectors had been recruited by the Commission in grades B4/B5 whilst others had been placed in higher grades. I took the view that there was unequal treatment and recommended that the Commission should take steps to rectify the situation. The Commission subsequently informed me that "in the interest of justice and fairness", it had accepted my draft recommendation.

There have also been many cases where the Commission fulfilled its obligations under contracts concluded with private individuals or firms after the non-compliance with these obligations had been raised in complaints to the Ombudsman. To cite just one example, in case 780/2000/GG the Commission accepted the Ombudsman's proposal to pay the complainant the sum that was still due to her. A sum of more than € 7 400 was paid to the complainant as a result.

The last-mentioned example also shows, however, that the elimination of maladministration may require more than just doing what ought to have been done before. In case 780/2000/GG, the Commission acknowledged that the complainant should already have been paid in 1995 whereas payment was only made in 2001. In order to compensate the complainant for this delay, the Commission accepted to pay interest (in the relevant case amounting to more than € 3 400).

The Commission has in effect paid interest in a number of similar cases or otherwise compensated the complainant in order to eliminate the instance of maladministration concerned. It will be sufficient for present purposes to quote a few examples. In case 489/98/OV, the Commission had failed to reinstate the complainant at the end of the unpaid leave the latter had taken on personal grounds. The Commission accepted to pay the complainant two months' salary to compensate him for the loss of remuneration and the consequent reduction in his pension entitlements. In case 390/99/ADB, the Commission accepted my proposal to pay interest to the complainant. The same happened in cases 860/99/MM and 1230/2000/GG. In case 444/2000/ME, I made a draft recommendation according to which the Commission should propose a settlement of the claim for financial losses put forward by the complainant. The Commission accepted this proposal in the end.

I am pleased to note these and other cases where the Commission has lent a hand in achieving an equitable solution. However, I believe it is time to establish general guidelines for such cases in order to make it easier for both the Ombudsman and the administration to find solutions for future cases of this kind.

In this context, it appears useful to consider the situation in the United Kingdom. According to information provided by the UK Parliamentary Ombudsman, the UK government has accepted the principle that, so far as possible, a complainant should be put in the position that he or she would have been in if maladministration had not occurred and that, if that is not possible, some appropriate alternative form of compensatory action should be taken. Several departments of the UK government have subsequently adopted and published Codes of Practice on redress for maladministration, including financial redress, after discussion with the Ombudsman.

Drawing on the experience gained from the cases I have had to deal with as European Ombudsman, and having regard to the solutions adopted by ombudsmen in member states such as the United Kingdom, I would therefore propose the following conclusions:

• It is good administrative practice to eliminate instances of maladministration as soon as they are discovered.
• In order to do so, the administration should as far as possible take measures to ensure that complainants are put in the same position they would have been in if the maladministration had not occurred.
• Where such restitution is not possible, the administration should take action to compensate the complainant for the damage or distress he has suffered. Unless there are more appropriate forms of compensation, financial compensation should be granted.

I should be grateful if you could consider these proposals and inform me as to whether the Commission agrees with them.

Follow-up on critical remarks

As mentioned above, the Commission already appears to have acted in conformity with these principles in various cases. However, there is a limited number of cases where the Commission has refused to accept the Ombudsman's view that compensation should be granted. In my decisions closing these cases, critical remarks have therefore been made.

I believe it is highly desirable to achieve consistency in the approach to complaints. Furthermore, the European Parliament has called upon me last year to verify the effect that my critical remarks had on the administration. I subsequently informed you that I would therefore revert to the critical remarks made in individual cases after a certain period of time.

I should therefore be grateful if the Commission, apart from considering my general proposals for eliminating instances of maladministration, could also reconsider the following four cases in which my proposals or draft recommendations were not complied with:

1) 511/99/GG:

The Commission had accepted to grant a contribution of € 70 000 towards a development project in South America run by a small German charity. Although it accepted that the project was worthy of assistance, the Commission subsequently refused to release the money on the grounds that the application itself had been made by another German association against which the Commission believed to have a counter-claim. The Commission refused to comply with the Ombudsman's draft recommendation that it should indemnify the small German charity.

2) 1689/2000/GG:

The complainant was invited by the Commission to prepare a document in relation to a conference that took place in Lisbon in 1999 and that was organised by the Commission and the Portuguese authorities. On the basis of the evidence available, it appeared that a fee of € 3 000 had been agreed for this service. In the end, the Commission refused to pay and referred the complainant to the Portuguese authorities instead. The latter then refused to pay as well. The Ombudsman made a draft recommendation to the effect that the Commission should ensure that the complainant was paid the sum of € 3 000 and indemnify the complainant for the time and effort that the latter had spent in pursuing the claim. The Commission refused to accept this draft recommendation, whilst offering to pay € 1 600.

3) 344/2001/GG:

The complainant had made an application for a grant under a town-twinning programme amounting to € 1 600. Despite oral promises that the money would be granted, the application was finally rejected. The complainant was only informed thereof three months afterwards. The Ombudsman suggested that the Commission should compensate the complainant with regard to the negative consequences the Commission's handling of the application had had. The Commission refused.

4) 1165/2001/ME:

The complainant had entered into a grant agreement with the Commission. The latter subsequently decided to deduct a sum of more than € 30 700 from the final payment without proving a reasonable explanation. The Ombudsman proposed that the Commission should pay the complainant the sum concerned but the Commission refused to accept this proposal.

Conclusion

I should be grateful if you could let me have the Commission's views on the issues raised in this letter by 16 December 2002.

Given that the issue raised in the present letter is of general importance, it may become necessary to submit a Special Report to the European Parliament at some stage in the future to inform the Parliament about developments in this matter.

Yours sincerely,

 

Jacob SÖDERMAN

cc: Mr Massangioli