Strasbourg, 19 December 2003

Dear Mr B.,

On 12 December 2002, you made a complaint to the European Ombudsman on behalf of G.I.M Est against the European Commission. The complaint concerned a project financed by the European Commission in the framework of the Leonardo Da Vinci Programme.

On 23 January 2003, the European Ombudsman forwarded the complaint to the President of the European Commission. The European Commission sent its opinion on 3 April 2003. I forwarded it to you with an invitation to make observations, which you sent on 28 May 2003.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant's company, G.I.M. Est, participated in a pilot project (F/95/2/1206/P/II.1.1.a) FPC) financed by the European Commission (Directorate General Education and Culture) in the framework of the Leonardo Da Vinci Programme. The complainant disagreed with the Commission's views on the eligibility of some expenses. On 11 April 2001, he therefore contacted the Commission and asked for a meeting to discuss the matter. The Commission rejected the request and initiated a recovery procedure for the amounts already paid.

On 12 December 2002, the complainant lodged a complaint with the European Ombudsman. He alleged that the Commission had arbitrarily and unilaterally decided upon the eligibility of some expenses. The complainant further alleged that the Commission had refused to arrange a meeting to discuss the eligibility of expenses.

THE INQUIRY

The European Commission's opinion

The opinion of the European Commission on the complaint was in summary as follows:

The assessment of the complainant's final report began in 1998 at the Technical Aid Office in charge of the Leonardo Da Vinci Programme. On 14 January 1999, a first request for further documents had been sent to the complainant. The latter was namely asked to send a copy of the payslips and properly to fill in the table on travel expenses/subsistence within a ten-day deadline. No answer from the complainant was received within the above-mentioned deadline by the Technical Aid Office.

On 6 December 1999, a further request for supplementary documents had been sent by the Commission's services to the complainant. On 8 May 2000, the Commission's services had asked the complainant to send the documents within thirty days, specifying that, failing that, the file was likely to be closed on the basis of the information already available. On 11 July 2000, the complainant was informed that in the absence of an answer within ten days, the Commission would close the file and would request the full reimbursement of the Leonardo Da Vinci allocation. On 24 July 2000, the complainant was informed that, beyond the final deadline of ten days, no further documents would be accepted and the file would be closed.

In a letter dated 1st August 2000, the complainant had sent a new version of the final report and further documents which had been assessed by the Commission's services. The latter considered that the requested further documents related to the staff expenses that had not been provided and that the table on travel expenses had not been properly filled in. Pursuant to Article III.3.3 of the administrative and financial Manual attached to the contract, the file was closed by the Commission and a recovery proposal amounting to 44 484 € was established. On 2 April 2001, the complainant was sent a debit note with the closing letter and explanatory enclosures related to the ineligible expenses. The complainant had been informed, therefore, of the expenses considered ineligible.

On 11 April 2001, the complainant had lodged a first complaint with the Commission following its letter dated 2 April 2001. He had disagreed as to the expenses considered ineligible by the Commission's services and requested the organisation of a meeting. No explanation or further supporting documents relating to expenses considered ineligible had been enclosed with the documents submitted by the complainant. Given that the Commission's letter dated 24 July 2000 specified that no further documents would be accepted beyond the ten-day deadline, it had been decided to maintain the decision requesting a recovery amounting to 44 484 €.

On 11 April 2002, the complainant had sent a further complaint to the Commission in which he had challenged the recovery amounting to 44 484 € and argued that these supporting documents related to the different expenses had complied with the contract signed between the two parties. The decision of the Commission to proceed to a recovery amounting to 44 484 € had been maintained.

The complainant's company, in spite of its contractual obligations(1), had not submitted the supporting documents requested on several occasions by the Commission's services. In the absence of such documents, its file had been closed on the basis of the information already available, in compliance with the rules set out in the contract, as had been the case for all the other participants.

The Commission stated that in the absence of the requested documents, the organisation of a meeting would not have modified the decision to close the file on the basis of the information already provided and would not have changed the answer given to the complainant.

The complainant's observations

The European Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations. In his reply of 28 May 2003, the complainant maintained his complaint. He argued that the contract had foreseen the establishment of an interim report to be forwarded to the Commission. The latter had accepted the renewal of the project and had paid further funds which had been allocated for the second part of the project, on the basis of an interim report detailing the expenses undertaken in relation to 5 % of the initial amount. The complainant concluded that the Commission had acted with laxity and failed to consider that this work was not typical at this stage and only corresponded to 5% of the whole work. The Commission should have asked for further information at this time. No expenses had been rejected during the first year of the programme.

THE DECISION

1 The allegation that the Commission had arbitrarily and unilaterally decided upon the eligibility of some expenses

1.1 The complainant's company, G.I.M. Est, participated in a pilot project (F/95/2/1206/P/II.1.1.a) FPC) financed by the European Commission (Directorate General Education and Culture) in the framework of the Leonardo Da Vinci Programme. The complainant alleged that the Commission had arbitrarily and unilaterally decided upon the eligibility of some expenses.

1.2 The Commission stated that the complainant, in spite of his company's contractual obligations, had not submitted the supporting documents requested on several occasions by the Commission's services. In the absence of such documents, its file had been closed on the basis of the information already available, in compliance with the rules set out in the contract, as had been the case for all the other participants.

1.3 The present complaint concerns allegations arising from a contract concluded between the Commission and the complainant.

1.4 According to Article 195 of the EC Treaty, the European Ombudsman is empowered to receive complaints "concerning instances of maladministration in the activities of the Community institutions or bodies". The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule or principle binding upon it.(2) Maladministration may thus also be found when the fulfilment of obligations arising from contracts concluded by the institutions or bodies of the Communities is concerned.

1.5 However, the Ombudsman considers that the scope of the review that he can carry out in such cases is necessarily limited. In particular, the Ombudsman is of the view that he should not seek to determine whether there has been a breach of contract by either party, if the matter is in dispute. This question could be dealt with effectively only by a court of competent jurisdiction, which would have the possibility to hear the arguments of the parties concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact.

1.6 The Ombudsman therefore takes the view that in cases concerning contractual disputes it is justified to limit his inquiry to examining whether the Community institution or body has provided him with a coherent and reasonable account of the legal basis for its actions and why it believes that its view of the contractual position is justified. If that is the case, the Ombudsman will conclude that his inquiry has not revealed an instance of maladministration. This conclusion will not affect the right of the parties to have their contractual dispute examined and authoritatively settled by a court of competent jurisdiction.

1.7 In the present case, the Commission has put forward a coherent and reasonable account of the reasons for which it had decided to close the complainant's file on the basis of the information already available, thus providing a justification for its decision upon the eligibility of some expenses.

1.8 In these circumstances, there appears to have been no maladministration on the part of the Commission.

2 The allegation that the Commission had refused to arrange a meeting to discuss the eligibility of expenses

2.1 The complainant alleged that the Commission had refused to arrange a meeting to discuss the eligibility of expenses.

2.2 The Commission stated that in the absence of the requested documents, the organisation of a meeting would not have modified the decision to close the file on the basis of the information already provided and would not have changed the answer given to the complainant.

2.3 The European Ombudsman notes that it seems that the Commission was under no contractual obligation to arrange a meeting in order to discuss the eligibility of expenses. He further considers that the position of the Commission, according to which a meeting would not have been useful in the absence of the requested documents, appears to be reasonable.

2.4 In these circumstances, there appears to have been no maladministration on the part of the Commission.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Articles 8.3 and 8.4 of the contract

(2) See Annual Report 1997, pages 22