Strasbourg, 31 January 2008

Dear Mr Z,

On 4 April 2006, you submitted the present complaint to the European Ombudsman against the European Commission concerning the implementation of a project in Uzbekistan. Your complaint was related to your prior complaint to the Ombudsman (3650/2005/GK)(1).

On 22 May 2006, I forwarded your complaint to the President of the Commission.

On 10 October 2006, the Commission sent its opinion, which I forwarded to you with an invitation to make observations.

On the same date, you sent me an additional letter concerning your complaint, and, on 1 December 2006, I received your observations on the Commission's opinion.

On 12 January 2007, I informed you of the change of the legal officer dealing with your complaint.

On 2 May 2007, I asked the Commission for further information and sent it your observations and additional letter.

On 31 May 2007, the Commission asked for an extension of the deadline until 30 June 2007, which I granted.

On 20 August 2007, the Commission replied to my above request for further information and its reply was sent to you for observations.

On 13 November 2007, you sent your observations on the Commission's above reply.

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

THE COMPLAINT

The complaint may be summarised as follows:

The European Commission was the finance provider for the Tacis(2) Project EuropeAid/110867/C/SV/UZ "Support to Democracy", in Uzbekistan ("hereinafter "the Project"). In the context of the Project, the Commission had a contract with a German private consulting company, X Consult. Furthermore, a Belgian private consulting company, Y, was the subcontractor of X Consult.

According to the complainant, on 21 March 2002, Y proposed to him that he replace another Project expert on ombudsman related issues which the complainant agreed to do. On 23 April 2002, Y informed the complainant that his "CV had been submitted to the European Commission and we are waiting for the reply".

The formal contract was concluded between Y and the complainant in May 2002, providing for 84 working days, that is, 68 days in Uzbekistan and 16 days in Europe. However, the complainant finally worked on the project for only 40 days, which entailed two missions in Uzbekistan.

On 18 February 2003, Y wrote to the complainant, stating that

"I am attaching the TOR [(3)] of the next mission, for which unfortunately your profile has been rated as not suitable by the X Consult and the beneficiary. Despite my discussion with them I could not have their view and opinion being [sic] modified. They want a very experienced ombudsman expert".

The complainant insisted that, according to his contract, he still had 44 days to fulfil and he informed Y that he would start legal proceedings against it. In his e-mail of 20 March 2003, the complainant wrote to Y that "[t]he EU simply cannot treat individuals in this way".

The complainant enclosed with his complaint the X Consult's letter of 10 January 2003 to Y, in which X Consult noted that "(...) [the complainant] does not meet the expectation of the beneficiary for the ombudsman expert position at this stage".

On 18 July 2003, the complainant was contacted by Mr V, the Commission's task manager for the Project, who asked him to brief him confidentially as regards his criticisms of the Project.

The complainant did so by letter of 10 August 2003. In that five-page letter to the Commission, the complainant elaborated on the various problems encountered and on the deficiencies he had identified in the management of the Project.

Furthermore, on 13 February 2006, the complainant sent another letter to the Commission, referring to various elements that, in his view, implied that the Project was poorly managed, notably that the Project lacked a detailed work plan or timetable, as well as a planning of expert's time; and that the project was manipulated by the local Project manager "as a public relations exercise for the regime"; and that "it was as if the project existed to enable the regime to demonstrate that it was committed to [the] democratic progress". He further referred to the very poor organisation of a seminar held in the framework of the project, and argued that, out of 312 project hours, only 30 minutes were spent with the Uzbek Ombudsman, even though the Project was designed, inter alia, to provide expert consultancy to the latter's service. The complainant also pointed out that, at the same time, another expert also expressed her negative views with respect to the development of the project. The complainant noted that the project's management was "virtually non-existent", and asked "why an individual consultant (...) should suffer financially as a consequence of the general maladministration of an EC project". The fact that the consultant had a contract through managing agents did not detract from the fact that this was an EC project. He further referred to a clause in his contract stating that dissatisfaction with the consultants' services would be expressed in writing. He argued that, in his case, the contractors alleged that there had been such a written expression of dissatisfaction, which, however, had never been communicated to him This was hardly in line with good practice in any institution, let alone in the Commission. He alleged that he had suffered significant financial loss as a consequence of the maladministration of the Project by the Commission's contractors and he claimed that he should be entitled to compensation for the part of his contract that remained unfulfilled.

In its reply of 29 March 2006 to the complainant's letter, the Commission stated that, further to an examination of the complainant's case and consultation with its relevant services, it had concluded that the issue raised concerned solely the complainant's relations with the contractor, namely, X Consult. The latter company was part of a consortium which concluded contract n° 01-025900 with the Commission for the implementation of the Project. The Commission noted that the complainant appeared to be the subcontractor of the said company and that his complaint appeared to be a contractual dispute with the company. The Commission pointed out that, since it was not a party to the complainant's contract, it could not interfere in this dispute. Article 4(5) of the General Conditions of contract n° 01-025900 stipulated that the Contracting Authority shall have no contractual relations with the subcontractors. The Commission concluded that it was not in a position to reply positively to the complainant's claim.

The complainant was not satisfied with that reply and turned to the European Ombudsman. In his complaint to the European Ombudsman, the complainant alleged that the Commission had failed properly to monitor the implementation of the Project (first allegation), and that, as a consequence of the deficiencies in the management of the project by the Commission's contractors, his consultancy contract with one of these contractors was unfairly terminated and he suffered financial loss (second allegation).

The complainant claimed that he should be entitled to compensation for the part of his contract that remained unfulfilled.

THE INQUIRY

The Commission’s opinion

The Commission's opinion may be summarised as follows:

First, the Commission referred to the background of the case.

In May 2001, the Commission launched the Project. The overall objective of the Project was to assist the Republic of Uzbekistan in the advancement of democratic reform and to reinforce the development of civil society that is based on the supremacy of law, on principles of human rights and freedom, as well as on generally recognised values of democracy and freedom.

On 11 July 2001, the offers were submitted and, on 4 September 2001, they were evaluated. The offer of a consortium composed of three consulting companies (X Consult from Germany, VV from Northern Ireland, and Y from Belgium) was selected. On 23 January 2002, the consortium, represented by its leader X Consult, signed a contract (contract number 01-0259-00) ("the Contract") with the Commission for the implementation of the Project, , which began on the same date. The Project was to last for 18 months (in fact, it ended on 23 July 2003). A maximum contract price was agreed for the amount of EUR 999 770.

Subsequent to the signing of the Contract, two addenda to the Contract were signed. The first addendum was signed on 23 April 2002 and concerned an advance payment and the replacement of key experts. The second addendum was signed on 5 March 2003 and stipulated a new breakdown of prices.

The subject of the Contract concerned the provision of technical assistance to the following institutions of the Republic of Uzbekistan: the Committee on Legislation and Judicial issues (of Oliy Majlis); the Committee on Democracy Institutions (of Oliy Majlis), several NGOs and self-governing organisations; the Institute for the Monitoring of Legislation under the Oliy Majlis and the Institute of the Ombudsman.

According to the Contract, the technical assistance to the Project consisted of two key experts, namely, a Project director and a team leader, as well as nine non-key experts, that is, short-term experts, from the EU and Uzbekistan. During the implementation of the Project and on the basis of the first addendum to the Contract, the team leader was replaced by the former Project director, and the post of Project director was filled by a new key expert. During the implementation of the Project, the Commission sent to the consortium ten "side letters" to the Contract in which it approved 36 new local and EU non-key experts whom the consortium had in the meantime proposed.

The complainant was one of four EU non-key experts approved as such by the Commission in its side letters of 3 and 14 May 2002. The consortium proposed the complainant as a non-key expert (short-term expert) on "[o]mbudsman development issues and election procedures". The consortium did not specify in its proposal a number of working days for the complainant's position.

On 10 August 2003, the complainant briefed, informally and confidentially, the Commission's official who was responsible for the implementation of Project. On this occasion, the complainant informed that official that he had carried out two missions to Tashkent, with each mission amounting to 20 days, and that he held a contract with Y for a further 44 days.

On 13 February 2006, the complainant addressed the Commission again about the same issue.

The Commission replied to him on 29 March 2006.

As regards the first allegation, the Commission stated that it duly monitored the Project and pointed out that the ex-post evaluation was also undertaken by its services.

During the implementation of the Project, the Commission approved all the reports sent by the Contractor, namely: (i) the Inception Report, submitted on 22 March 2002; (ii) the First Project Progress Report, submitted on 22 June 2002; (iii) the Second Progress Report, submitted on 22 September 2002; (iv) the Third Progress Report, submitted on 22 December 2002; (v) the Fourth Progress Report, submitted on 22 March 2003; (vi) the Fifth Progress Report, submitted on 22 June 2003; and (v) the Final Report, submitted on 22 July 2003. These reports were also approved by the beneficiary of the Project.

In addition, the Contractor sent to the Commission periodic reports in March, May, July/August, and October/November 2002.

The Tacis National Co-ordinating Unit in Tashkent ("NCU") issued three monitoring reports which were all made following monitoring visits, namely: the First Monitoring Report of 10 May 2002, which followed the visit of 22-23 April 2002; the Second Monitoring Report of 26 November 2002, which followed the monitoring visit of 13-14 November 2002; and the Final Monitoring Report of 25 July 2003, which followed the monitoring visit of 17 June-15 July 2003.

In addition, the task manager from the Commission's headquarters, namely, the official from EuropeAid Office, Mr V, made two monitoring visits to Tashkent on 7-17 December 2002 and 9-24 March 2003. According to the Commission, during these two visits, Mr V met the team leader and participated in the Project steering committee together with the local beneficiaries of the Project, the NCU and Europa House (Implementation and Management Support Office).

The monitoring reports did not mention any problems. On the contrary, there were statements to the effect that the Project was being implemented in accordance with the Contract.

The Commission concluded that the Project was monitored properly, in accordance with the regular procedures used for other Tacis projects.

Europa House and the NCU, both funded by the Commission, supported the implementation of the Project at all levels. The management team of the Project took part in all meetings organised by Europa House and the NCU. There were never any instances of maladministration mentioned in the contacts between the Commission, Europa House and the NCU.

As regards the complainant's second allegation and claim, the Commission stated the following.

The complainant had no contractual links with the Commission. The complainant was never party to the Contract between the Commission and the Contractor and, furthermore, the Commission was not a party to the consultancy contract which was concluded between the complainant and Y. Therefore, he has no contractual claims against the Commission.

The Contract concerning the implementation of the Project was concluded between the Commission and the consortium ("the Contractor"). According to the Contract, the Contractor was obliged to supply a total of 352 working days by key-experts; 440 working days by EU non-key (or short-term) experts; 18 working months by the local project manager; and 144 working months by local short-term experts. The complainant was proposed by the Contractor as "a short-term expert on [o]mbudsman development issues and election procedures". He was not proposed as a replacement for one of the key experts mentioned in the Contract. The Contractor did not indicate the number of proposed working days for his assignment. The complainant did not therefore replace a key expert at the Contracting authority's request as foreseen under Article 18(3) of the General Conditions for Service Contracts financed from Phare/Tacis funds (Annex E to the Contract). As stated in Article 4(2) and Article 18(1) of the above General Conditions, the Contracting Authority had to give its prior approval to ensure that the staff member which the contractor proposed had the appropriate qualifications and experience; that his assignment fell within the scope of the tasks imposed under the contract; and that his engagement complied with the timetable provided for in the contract for the performance of the tasks.

It was therefore imperative for the Commission that the technical assistance services be provided by qualified staff with the necessary competence to fulfil the project tasks originally agreed in the Contract.

As regards the non-key experts, it was, as a rule, left to the discretion of the contractor to propose how the Project’s objectives were to be fulfilled and to divide the tasks among the non-key experts accordingly. It could happen that the contractor may consider that, in light of the expertise or availability of its staff, it was preferable, in the case of certain tasks, to divide the working days for a particular task between two or more experts.

As regards the complainant, the Commission approved the Contractor's proposal to add the complainant to the Project team as "reinforcement" for the component of the Project concerning the development of ombudsman-related issues and election procedures. It was not recognised that the complainant should be employed as a replacement for the key expert, Mrs W, to whom the term "ombudsman expert" was accorded as originally mentioned by the Contract. Mrs W was replaced by Mr XX, whom the Contractor described as an "experienced parliamentary ombudsman".

The complainant undertook two missions to Uzbekistan, which added up to a total of 40 working days. During his first mission, from 27 May 2002 to 21 June 2002, the complainant provided consultancy advice mainly concerning ombudsman-related issues. During his second mission, from 15 October to 12 November 2002, he provided consultancy support mainly in the field of legislation and election procedures. I In particular, he provided expertise on a number of draft laws and support to the central Election Committee of Uzbekistan. He also organised a seminar on parliamentary control of legislation. Both missions were completed successfully. Since October 2002, ombudsman-related issues have been dealt with by Mr XX.

Finally, the Commission noted that, according to Article 36(1) of the above General Conditions, "[t]he Contracting Authority will not be held liable for any damage sustained by the Contractor himself or by its staff during the performance of the Contract". In addition, according to Article 4(5) of the General Conditions, "the Contracting Authority shall have no contractual relations with the sub-contractors (...)". The Commission stated therefore that the above provisions showed that the Contracting Authority shall not be bound or held responsible by acts of the Contractor towards third parties and that contractual responsibilities of the Contracting Authority towards third parties are excluded. Furthermore, according to Article 11 of the General Conditions, the Contractor shall not commit the Contracting Authority or act on its behalf with regard to third parties. Finally, the rules concerning the replacement of personnel according to Article 18(4) of the General Conditions showed that, in the present case, contractual obligations of the Contracting Authority towards the complainant could be excluded.

The Commission concluded that the complainant's claim was not admissible because he had no contractual links with the Commission. The Commission stated, in this respect, that "[a]lso, this specific case was brought to Europe's-Aid's attention after the completion of the Project in August 2003."

The complainant's additional letter of 10 October 2006

The complainant stated that the Contractor had in the meantime made a partial offer which the complainant had accepted. The Contractor paid him GPB 5 243.

However, the 44 unpaid days, at a rate of GPB 350 per day, on the contract in question amounted to a total of GPB 15 400. Therefore, taking into account the partial payment of GPB 5 243, the complainant's claim still remained, but at the reduced amount of GPB 10 157.

The complainant pointed out therefore that the individual consultant's contract was held by that Contractor as the Commission's agent and that it should not be possible for that Contractor unilaterally to cancel the contract, particularly when the individual consultant had respected the declaration of exclusivity by refusing other contracts offered during the term of the original one.

The complainant's observations on the Commission's opinion

The complainant admitted that the Commission's statement that the complainant had no contractual links with the Commission was correct in law. However, he pointed out that the Commission had played an important role in the changes made to the Project. The complainant asked whether the Contractor had received payment from the Commission for the 44 unpaid days of the complainant's contract, which was to be paid to the complainant or another consultant.

The complainant also pointed out that individual contractors were not in a position to be cognisant of or to check whether they were formally party to the service contract between the Contractor and the Commission. They had to accept, in good faith, that they were protected by contractual arrangements.

Moreover, it was difficult for individual consultants to bring legal proceedings against the Commission's contractors, given the high cost of such proceedings and the impossibility of being present in Brussels for hearings in the event that the consultants were working abroad.

Furthermore, the complainant insisted that he was employed in order to replace Ms W In this regard, he quoted from a letter sent to him by Y on 22 March 2002, in which that company stated that "you would be asked to replace Mrs W in her work-Ombudsman Expert (...)".

The complainant underlined however that, during the 20 days of his mission to Tashkent, he had been able to spend only 30 minutes with the local (that is, Uzbek) Ombudsman despite asking regularly when he would deal with ombudsman-related issues as foreseen in his contract with Y.

The complainant also pointed out that it was highly unlikely that the reports sent to the Commission by the Contractor would detail the problems which might well alert the Commission to management difficulties within the Project. "Even so it is clear that from the direct approach to me by Mr V of the Commission that there was disquiet within the Commission as to the management and the conduct of the project." The complainant stated therefore that he endeavoured to assist Mr V in the hope of improving the quality of the Project. In addition, he stated that the Commission's senior official with overall responsibility for the Project, Mr YY, was aware of the problems with the Project. The complainant suggested therefore that the Ombudsman hear that person.

The complainant also referred to a seminar on parliamentary control of legislation, which he organised himself during his mission to Tashkent and during which he experienced numerous problems. According to the complainant, the seminar was an "embarrassing fiasco" due to the deliberate acts of the local team leader. However, the seminar was not criticised in the reports.

FURTHER INQUIRIES

After careful consideration of the Commission's opinion and the observations of the complainant and his additional letter, it appeared that further inquiries were necessary.

The Ombudsman's letter to the Commission dated 2 May 2007

The Ombudsman asked the Commission to answer the following questions:

(1) In its opinion, the Commission stated that the project was monitored "using the regular procedures as for other TACIS projects". Could the Commission describe briefly these procedures? In this respect, could the Commission explain the role of Europa House and the Tacis National Co-ordinating Unit in the Project? Could the Commission also explain what its margin of manoeuvre is if, despite the fact that it may have doubts, the local beneficiary of the project approves the contractor's report?

(2) According to the complainant, the Commission Project Manager/task officer, Mr V , asked the complainant to brief him as regards the complainant's criticisms of the Project. Why was such a (confidential) request made if, a few days later and without waiting for the complainant's reply, the Commission approved the final report of the Contractor and the Project ended? What was the purpose and the consequences of the complainant's five-page reply sent to the Commission on 10 August 2003?

(3) Could the Commission provide the copies of the reports (if any) made by the above task officer after his two monitoring visits to Uzbekistan?

(4) On the basis of the evidence submitted within the inquiry, it appears that the beneficiary of the Project did not want the complainant to continue to work on the Project because it wanted to have somebody dealing with this issue who had more experience. On the other hand, the Commission appears to have approved the complainant's CV for such work. Could the Commission comment on this point?

(5) By stating in its opinion that "this specific case was brought to Europe's-Aid's attention after the completion of the Project in August 2003", does the Commission suggest that if the complainant had informed the Commission earlier about his problems with Y, the Commission could have considered his claim or helped him in his dispute with Y?

(6) Finally, as regards the complainant’s suggestion that the European Ombudsman should take testimony from the Commission's senior official with overall responsibility for the Commission's Tacis programme in Uzbekistan, the Ombudsman (i) noted the complainant’s statement that this official was aware of the problems with the Project, and (ii) invited the Commission to provide a written answer on this point.

The Commission's reply of 2 May 2007

The Commission's reply may be summarised as follows:

As regards the Ombudsman's first question, the Commission stated that the regular procedures for monitoring include: (i) desk monitoring of the project by the task manager on the basis of progress reports and other written or spoken inputs; (ii) site visits by the task manager and meetings with relevant interlocutors (beneficiaries and project executors especially); and (iii) periodic monitoring by an external monitoring team in the context of result oriented monitoring. All these actions were undertaken in the framework of the Project.

The Commission also explained that Europa House was a project which was implemented under a service Contract signed by the EC and a consultancy firm that aimed to form a liaison between Uzbek beneficiaries and the Commission and to give visibility to the EC assistance programme to target audiences in Uzbekistan. In addition, it acted as a "resource for trouble shooting for other project executors contracted by the EC in Uzbekistan".

Further, the Commission explained that the NCU formed part of the Uzbek administration and worked under the Tacis national co-ordinator who usually was a member of the Uzbek government. The NCU was the first point of contact for the EC as regards the assistance programme. It co-ordinated the assistance programming exercise on the beneficiary side and supported the implementation of Project. The NCU received technical assistance from the Commission, that is, a Commission expert worked in that unit and advised it on the programming, implementation and monitoring of the assistance programme.

Europa House and the NCU gave support at all levels during the Project's implementation. Furthermore, its management team took part in all meetings organised by Europa House and the NCU. In the contacts between the Commission, Europa House and the NCU, there was never any mention of irregularities related to the implementation of the Project.

Moreover, the Commission put forward that, in cases of centralised management, that is, when, as in the present case, the Commission is the Contracting Authority, its services are solely responsible for approving reports and documents drawn up and forwarded by a consultant working within a project. Thus, in such circumstances, the Commission has to verify whether these reports and documents comply with the terms of the contract. The Commission referred therefore to Article 27(1) of General Conditions for Service Contracts for European Community External Actions. Nevertheless, in the interest of promoting the ownership of projects among beneficiaries, it is common practice for the Commission's task manager to consult the project beneficiary on a draft report submitted by a contractor and the project beneficiary is usually asked to endorse the draft report or to provide comments. Subsequently, the Commission's services consider the comments received from Project beneficiaries but can ignore them when approving or rejecting a contractor's report.

As regards the Ombudsman's second question, the Commission stated that the Commission's task manager invited the complainant to send his views about the project's progress and results because of the possibility that such views could have determined whether the Project had been executed in accordance with the Terms of Reference of the Contract. "Unofficial views [were] frequently sought with this purpose", inter alia, through site-visits, contacts by telephone or by e-mail. However, the informal character of such inputs derived from the fact that they were gathered outside the formal reporting channels, notably the contractor's inception, progress and final reports.

The final report sent by the Contractor was not approved before the Commission task manager had received the informal note from the complainant but it was approved after the receipt of that note. The task manager approved the report on 13 October 2003 while the complainant's note was dated 10 August 2003.

The task manager examined the complainant's note and concluded that, given that there were no additional evidence or input that might suggest that the Project had not been executed in line with the Terms of Reference, no follow-up was given to the complainant's note. The Commission underlined therefore that the complainant's assignment to which his complaint referred concerned a small part of the activities foreseen in the Terms of Reference, and in budgetary terms represented approximately 3% of the total value of the Contract. "The complainant's criticism of the results of one sub-activity under the contract cannot be reconciled with an overall judgement by the Task manager that the final report of the project in its entirety can be approved."

In relation to the Ombudsman's third question, the Commission attached a copy of the task manager mission report on his mission of 9-24 March 2003 to Uzbekistan. It stated that the relevant section focused on the preparation of a follow-up project with the Uzbek Parliament on the positive results of the Project, in which the complainant was involved.

The Commission also stated that it was not possible to "trace" the report of the December 2002 mission. However, given that the facts to which the complaint referred did not occur until early 2003, this December 2002 mission report could not contain any information that was directly connected to the complaint.

As regards the Ombudsman's fourth question, the Commission stated that the experts proposed by the contractors and approved by the Commission's services could be replaced in the course of the contract at the request of the Commission, of the beneficiary or of the contractor, provided that there was no overall negative impact on the progress of the contract and that there were no financial disadvantages for the Commission. In the present case, the Commission "approved the proposal of the [C]ontractor to add the complainant to the [P]roject team as a short term expert because his CV was considered adequate for the task to be performed." However, "the presence of [the] EU experts is always subject to acceptance from the project partner who may refuse an expert for reasons beyond the EC's control."

As regards the Ombudsman's fifth question, the Commission put forward that, by stating that "this specific case was brought to Europe-Aid's attention after the completion of the Project in August 2003", the Commission did not suggest that, had the complainant informed it earlier about his problems with Y, the Commission could have helped him in his dispute with Y.

As a matter of principle and irrespective of whether they were firms or individual experts, the Commission did not get involved in contractual relations between the main contractors and the latter's subcontractors. However, in the event that a task manger became aware of an issue between the contractor and subcontractors that could jeopardise the progress of a project, the task manager would make inquiries and would usually ask the contractor to solve the issue. The Commission also pointed out that the EC's main contractor for the Project was X Consult and not Y; Y was itself a subcontractor of X Consult; and the complainant was hired by Y.

Finally, as regards the Ombudsman's sixth question, the Commission made reference to Mr YY, whom the complainant referred to in his complaint as the "senior official with overall responsibility for the Commission's TACIS programme in Uzbekistan". In this regard, the Commission explained that, at that time, Mr YY was in fact the lead expert under the service contract for the Europa House project in Uzbekistan but was not a Commission official. Given the absence of a Commission delegation in Uzbekistan, all assistance programmes for that country were managed on a central basis by Commission services in Brussels, notably, the EuropeAid Cooperation Office.

The Commission concluded that the complainant had a contract with Y which was a subcontractor of the Commission's contractor and not with the Commission. It was therefore up to both contractors to settle their disputes, and, if necessary, to enforce their rights through court proceedings. In this respect, the Commission noted that the complainant had accepted a partial financial settlement which was offered by his former contractor.

The Commission took the view that it applied correctly the rules which governed the Project.

The complainant's observations on the Commission's reply of 2 May 2007

The complainant's observations may be summarised as follows:

First, the complainant referred, again, to Mr YY and emphasised that his contacts with the latter as regards his problems with the Project were in line with what the Commission stated about the role of Europa House, namely, that it was a "resource for trouble shooting for other project executors contracted by the EC in Uzbekistan". The complainant stated that Mr YY did not initiate reports on the Project because this was outside his direct responsibilities. The complainant stated, however, that "it would be interesting to know as [sic] whether the Commission had contacted Mr PR for his comments on the Project in view of the complaint."

As regards the report from the task manager's mission to Uzbekistan, which the Commission attached to its reply, the complainant noted that there was no concrete mention about the work carried out by the complainant (including ombudsman-related work even though it was definitely part of the Project) nor about the work carried out by other short-term consultants. The complainant took the view that such an omission was due to the fact that "the project wanted to cover up the problems it had with the short term consultants and the lack of the involvement in the topics for which they were contracted".

Further, the complainant referred to his conversation with the Commission's task manager when the latter telephoned him. The complainant stated that the task manager asked him to give his views "in confidence". The complainant also stated that "he had never before over the past 17 years while he made about 45 missions to 35 countries been asked for his comments in a similar situation by any EU official". In the complainant's view, the suggestion that this request constituted routine practice would seem to be an attempt to divert attention from its exceptional nature. According to the complainant, the reason for the request "was clearly that there were difficulties with the Project and in particular with the Project's management." The complainant recalled therefore that (i) the team leader of the project was rarely present during the complainant's second period in the country and disappeared from the Project afterwards; (ii) it was difficult to find a task for the complainant and he was never asked to do any ombudsman-related work despite being hired for that purpose. He could only have a 30-minute meeting with the (Uzbek) Ombudsman during his 312-hour stay in Uzbekistan; and (iii) the event "Round Table seminar" was a "disaster due to poor management." The complainant also stated that he considered the fact that he was hired to work on one issue and then asked to work on everything but that topic to constitute an instance of maladministration.

Moreover, the complainant referred to the Commission's statement in its reply that "the presence of [the] EU experts is always subject to acceptance from the project partner who may refuse an expert for reasons beyond the EC's control." The complainant stated, in this respect, that he complained to the local programme manager about the results of the Round Table seminar and, subsequently, was dismissed from the Project. The complainant stated that he had brought a case against Y before the Belgian courts and that it was only within the context of those proceedings that he had obtained access to the information contained in the letter of 10 January 2003 sent to Y by X Consult that "[he] did not meet the expectation of the beneficiary."

The complainant concluded that it was unfair for the Commission to "hide behind the contractual structure" when the key issues as to the continuation, amendment or ending of a project fell essentially under the EC's control. He also pointed out that, during the period in question, he was contacted with a view to undertaking missions in Congo-Brazzaville, Madagascar and Somalia and he refused them because he was contractually committed to continue his mission in Uzbekistan. The complainant considered that he was still owed the sum of GPB 10 157.

THE DECISION

1 The preliminary remarks

1.1 The European Ombudsman notes that, on several occasions during the course of the inquiry, the complainant suggested to him that he hear one of the Commission's official, namely, Mr YY, in the context of the complaint.

1.2 In light of the Commission's explanation that that official was not employed by the Commission but, at the time of the facts alleged in the complaint, worked in the framework of the project Europa House which, according to the Commission, was run by a private organisation, the Ombudsman points out that he can require officials (or other servants) of Community institutions or bodies to give evidence only as regards the facts related to their duties as officials. Therefore the complainant's suggestion cannot be followed.

2 The Commission's monitoring of the implementation of the Project

2.1 The complainant, an individual consultant, was employed by a Belgian private consulting company, "Y Belgium" ("Y"), which was a member of the consortium led by a German private consulting company, "X Consult GmbH" ("X Consult"), to work on the Tacis(4) Project EuropeAid/110867/C/SV/UZ "Support to Democracy in Uzbekistan" ("the Project") . The Project comprised a variety of activities (including ombudsman-related issues, a task which was allocated to the complainant) aiming at reinforcing and supporting the beneficiaries and local partners of the Project, that is, the Parliament of Uzbekistan, the Uzbek Institute of the Ombudsman and Uzbek NGOs. The consortium ("the Contractor") had entered into a contract with the Commission to carry out the Project.

The complainant alleged that the Commission has failed properly to monitor the implementation of the above Project (first allegation), and that, as a consequence of the deficiencies in the management of the Project by the Commission's Contractor, his consultancy contract with Y was unfairly terminated and he suffered financial loss (second allegation).

The complainant claimed that he should be entitled to compensation for the part of his contract that remains unfulfilled.

2.2 In its opinion and further reply to the Ombudsman's request for additional information, the Commission pointed out that its procedure on the monitoring of Tacis projects includes (i) desk monitoring by the tasks manager on the basis of progress reports and other written or spoken inputs; (ii) site visits by the task manager and meetings with relevant interlocutors (beneficiaries and project executors especially); and (iii) periodic monitoring by an external monitoring team in the context of result-oriented monitoring, and that procedure was correctly applied in the present case. The Commission also pointed out that the Project was centrally managed by its services from Commission headquarters and that, although the reports provided by the Contractor and its experts were assessed exclusively by the Commission, the latter also considered the opinion of the beneficiaries (local partners) of the Project in this respect. Moreover, as regards non-key experts, including the complainant, it is as a rule left to the discretion of the Contractor to propose how it intends to divide their tasks, and their presence is always subject to acceptance from the project beneficiary (local partner) who may refuse to work with an expert for reasons beyond the EC's control.

The Commission also referred to its co-operation, with respect to the control of the implementation of the Project by the Contractor, with (i) a private consultancy running the project Europa House funded by the Commission, and (ii) the Uzbek Tacis national co-ordination unit ("NCU"), also funded by the Commission. The Commission stated that the above two organisations and the Commission itself did not find any mismanagement of the Project by the Contractor.

Finally, the Commission underlined that there was no contractual relationship between the Commission and the complainant and that the complainant could submit his claim to Y with which he did have a contract.

2.3 At the outset, the Ombudsman recalls that, according to Article 195 of the EC Treaty, the European Ombudsman has the power to receive and examine complaints about maladministration in the activities of the Community institutions and bodies. No action by another authority or person may therefore be the subject of a complaint to the Ombudsman.

It is thus not the task of the Ombudsman to examine whether or not the complainant's employer, that is, Y, complied with its contractual obligations towards him. In this respect, the Ombudsman also notes that such obligations appear to be the subject of legal proceedings before a national court.

The Ombudsman's present inquiry, therefore, concerns only the alleged poor monitoring, on the part of the Commission, of the implementation of the Project and, if this were to prove to be the case, the potential consequences of that poor monitoring on the complainant's situation.

The Ombudsman also points out that it is not his task to replace the Commission's assessment of the execution of the Project by the Contractor but to check whether the Commission applied correctly the relevant procedures in its monitoring of that implementation.

Given that the complaint refers to the work performed by the complainant under the Project during his two missions to Uzbekistan (27 May to 21 June 2002, and 15 October to 12 November 2002), the Ombudsman's assessment will concern mainly the relevant evidence relating to that period.

2.4 The Ombudsman notes that, according to Article 8 (Monitoring and evaluation) of Annex E (General Conditions for Service Contracts financed from Phare/Tacis Funds) of the Contract, the Contracting Authority may appoint a third party to conduct a monitoring and evaluation of the activities performed by the Contractor under the Contract. According to Annex A (Uzbekistan Support to Democracy Terms of reference) of the Contract,

"[t]he Contract monitoring will be carried out by the relevant divisions of TACIS and will also depend on the routine quarterly progress report of the Contractor. Project monitoring and evaluation will be based on periodic assessment of inputs, technical achievements (outputs), impact (attainment of specific project purposes) and effectiveness set out in the detailed proposals and logical framework analysis. An independent consulting group, comprising of an external monitoring expert and a local consultant reporting to the EC will monitor the Project (...) and will involve the resident team"

In light of the above, the Ombudsman considers that the description provided by the Commission, as regards the procedure applied in monitoring the activities performed by the Contractor under the Contract, appears to be reasonable.

2.5 On the basis of the Commission's above explanation, it appears that the implementation of the Project was centrally monitored from the Commission's headquarters and, locally, by the NCU in co-operation with Europa House, both of which were funded by the Commission.

The Ombudsman understands that, given the absence of a Commission delegation in Uzbekistan, the latter had to rely, in the first instance, on the local monitoring undertaken by the NCU, in which an official of the Commission took part, and to co-operate with Europa House. He finds this practice to be reasonable.

2.6 The Ombudsman further notes that, according to the Commission, the Contractor sent it the inception report, five progress reports and a final report as well as so called "quarterly progress reports", all of which the Commission and the local beneficiaries of the Project assessed positively. The Commission did not provide copies of these reports to the Ombudsman but instead provided copies of the monitoring reports drafted by the NCU which, as stated in point 2.5 above, was the authority in charge of the local monitoring of the project's implementation.

The Ombudsman notes that the NCU sent to the Commission its monitoring reports on the implementation of the Project on 10 May 2002, 26 November 2002 and 25 July 2003. It appears that the NCU's report of 26 November 2002 concerned ombudsman-related issues and that, on 13 November 2002, Mrs WW. from the Uzbek Institute of the Ombudsman was interviewed by the NCU for that purpose. Although there was a recommendation in the report for the future implementation of the Project that "more efforts and emphasis should be directed towards the strengthening of the Institute of [the] Ombudsman and training of regional staff from pilot regions in information activities and in dealing with complaints related to critical issues in the region", the NCU concluded that "the Contractor's work continues to be of a high standard" and "[the local Project beneficiary] has a high regard for [the] Contractor's performance."

The Ombudsman also notes that the NCU referred to the activities on ombudsman-related issues by stating that

"[a]ctivities under this output were delivered only partly due to a prolonged discussion between the project and the Institute of [the] Ombudsman regarding the appropriate qualifications of the European expert for institutional strengthening of the Institute. However by the date of monitors' visit [(5)] an expert with the needed specific skills was deployed, a schedule for delivery of training to the regional [ namely, Uzbek] Ombudsman staff was prepared and the organisation of seminars and conferences had started".

2.7 Finally, the Ombudsman notes that, in December 2002 and March 2003, the Commission's task manager paid two monitoring visits in loco and, afterwards, drafted the reports with his conclusions on the visits. The Ombudsman regrets however that the Commission did not provide a copy of the report concerning the task manager's visit of December 2002 to Uzbekistan, which, possibly, could concern the period of the complainant's work in Uzbekistan to which his first allegation refers. As correctly pointed out by the complainant, in the monitoring report on the March 2003 visit which was provided by the Commission instead, the complainant's tasks on ombudsman-related issues were not referred to at all.

The Ombudsman does not find satisfactory the Commission's explanation in this respect, namely, that "it was not possible to trace the mission report from December 2002".

However, the fact remains that the Commission's task manager paid monitoring visits to Uzbekistan, which appears to constitute a correct step within the Project's monitoring procedure. Therefore the Ombudsman does not find that further inquiry is necessary as regards this aspect of the complaint.

2.8 In addition, the Ombudsman notes that the complainant submitted, in summary, the following arguments in support of his allegation concerning the poor monitoring of the Project by the Commission: (i) the EC experts whose CVs had been approved by the Commission should not have been dismissed from the Project on the basis of the local beneficiary's suggestions; (ii) the Commission knew that he was not able to work on ombudsman-related issues, which was the task for which he was employed, and was instead asked to work on different issues; (iii) the "Round Table seminar" event, considered unsuccessful by the complainant, was not criticised in the reports (as provided to the Ombudsman by the Commission in the course of the inquiry); and (iv) the Commission asked him to provide it with the confidential information on the implementation of the Project, which he did, but his exhaustive information did not receive a follow-up.

2.9 As regards the first of the complainant's submissions, the Ombudsman notes the Commission's argument that the presence of EU experts is "always subject to acceptance from the project partner who may refuse an expert for reasons beyond the EC's control".

The Ombudsman considers the Commission's argument that the presence of EU experts is always subject to acceptance from the project partner to be reasonable since he finds it difficult to expect any Tacis project to be successful and thus bring assistance to the local recipients in the event that the consultants responsible therefor are not accepted by the above recipients. Moreover, the Ombudsman notes that, on 13 February 2006, the complainant informed the Commission that his contract with Y contained a clause stating that dissatisfaction with the consultants' services would be expressed in writing and that, in the course of the inquiry, he revealed that such a written expression of dissatisfaction has been finally communicated to him by Y during the trial before the national court. The Ombudsman does not find therefore that further inquiry is necessary as regards this aspect of the complaint.

However, he is concerned that, according to the Commission, the reasons for the refusal of a EU expert by local partners are "beyond the EC's control" and will make two further remarks below.

2.10 Moreover, as regards the second of the complainant's submissions, the Ombudsman notes that, according to the Commission, the division of tasks among the non-key experts remains exclusively within the competence of the Contractor and that the Commission only intervenes in the relations between the Contractor and subcontractors (such as the non-key experts) in the event that the achievement of the objectives of the Project may be jeopardised. In this respect, the Ombudsman points out that it appears that the Commission and local beneficiaries consider that the objectives of the Project, including ombudsman-related issues, were achieved and the final report of the Contractor was approved by the Commission.

Nevertheless, the Commission's statement about the discretion of the Contractor concerned only the non-key experts and the Ombudsman underlines therefore that, on the basis of X Consult's letter to the Commission dated 11 October 2002 and the Commission's approval dated 11 October 2002, it appears that Mr XX, and not the complainant, replaced Mrs W, as a key expert on ombudsman-related issues. In addition, it appears that the relevant Project's tasks on ombudsman-related issues, which started to be executed by the complainant during his mission from 27 May 2002 to 21 June 2002, were followed up by Mr XX Finally, on the basis of the summary list of additional non-key experts attached to the Commission's letter to X Consult dated 14 May 2002, it appears that the complainant was approved by the Commission as a non-key expert on ombudsman-related development issues and election procedures and therefore his consultancy of 15 October to 12 November 2002, in the field of legislation and election procedures, appears to correspond to the original designation of his duties.

2.11 As regards the third of the complainant's submissions, the Ombudsman notes that, in its opinion, the Commission stated that "the complainant organised a seminar on parliamentary control of (...) legislation" and that "the complainant's missions were completed successfully". In addition, in its monitoring report of 26 November 2002, the NCU stated that

"a number of seminars, round tables and conferences for discussion of laws, with close involvement of four beneficiaries, contributed to the transfer of expertise with regard to the drafting of laws, application of democratic procedures and drafting instruments to reach international standards, thereby increasing the effectiveness of the work of beneficiaries."

The Ombudsman does not find however that the absence of a negative assessment, in the reports on the round table organised by the complainant himself which the complainant considered to be a fiasco, could in itself be indicative of poor monitoring of the implementation of the Project by the Commission.

2.12 Finally, as regards the fourth of the complainant's submissions, in the event that the Commission's informal request for confidential information does not appear to be part of its standard monitoring procedure, the Ombudsman understands it to constitute evidence of a sincere and truthful relationship between the Commission and the expert working under the Commission's project, namely, the complainant, whose overall work under the Project was positively assessed. In this respect, the Ombudsman underlines the importance of the relationship of trust between the Commission and the individual experts working on the Commission's projects.

On the basis of the information available, the Ombudsman is not in a position, however, to assess whether the confidential information provided by the complainant to the Commission should receive any, and if so which kind of, follow-up. In this context and bearing in mind that the Contract concerned a project worth EUR 1 million, the Ombudsman does not understand the Commission's statement that "in budget[ary] terms [the activities to which the complaint refers] represented around 3% of the total value of the contract" meant that, for that reason, the information provided by the complainant should not receive a follow-up. The Ombudsman rather notes the Commission's explanation that it examined the information provided by the complainant before the Contractor's final report had been approved and that "in [the] face of other evidence and inputs that suggested that the project had been executed in line with the Terms of Reference, no follow up should be given to the complainant's note."

In light of the above and of his finding in the fourth paragraph of point 2.2 above, the Ombudsman does not find therefore that any further inquiry is justified as regards this aspect of the complaint.

2.13 In light of the above, the Ombudsman considers that the complainant has not succeeded in demonstrating poor monitoring on the part of the Commission with respect to the implementation of the Project, and therefore that there had been any impact on his situation, that is, that his consultancy contract with Y was unfairly terminated. The Ombudsman does not find therefore any instance of maladministration as regards the complainant's allegations. As a result, his claim cannot be sustained. As regards the specific issues concerning the Commission's report on the December 2002 monitoring mission (point 2.7), the Commission's informal request for confidential information (point 2.12) and the Commission's argument concerning the refusal of EC experts by local partners of the Project (point 2.9), the Ombudsman considers that no further inquires are justified.

3 Conclusion

On the basis of his inquiry into the complaint, the Ombudsman does not find any instance of maladministration as regards the complainant's allegations and therefore the complainant's claim cannot be sustained. As regards the specific issues concerning the Commission's report on the December 2002 monitoring mission (point 2.7), the Commission's argument concerning the refusal of EC experts by local partners of the Project (point 2.9) and the Commission's informal request for confidential information (point 2.12), the Ombudsman considers that no further inquires are justified.

The Ombudsman therefore closes the case. The President of the Commission will be informed of this decision.

FURTHER REMARKS

The Ombudsman suggests that the Commission could consider recommending to its contractors under the Tacis projects, who are operating in the beneficiary country, that their subcontracts with the individual experts include (i) a clause informing them that the presence of EU experts is subject to acceptance from the local project partner, who may refuse further to work with an expert providing the relevant reasons in writing, and (ii) the legal implications for the expert in case of such refusal and of the termination of the contract.

Moreover, the Commission could consider requiring from the local project partner an explanation for its non acceptance of a EU expert, and establishing measures within the Tacis funding procedure in cases where it regards such an explanation to be abusive or contrary to EU standards.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) On 15 December 2005, the case was closed on the basis of Article 2(3) of the Ombudsman's Statute, because the object of the complaint could not be identified and the complainant was informed accordingly. In particular, it was not possible to establish what were the complainant's allegations concerning the Commission. The complainant was advised to identify his allegations against the Commission and, given that he did not appear to have made the appropriate prior administrative approaches, he was invited to make such approaches before submitting a complaint to the Ombudsman. More specifically, since the complainant appeared already to have made informal contacts with the Commission, he was also informed that his specific allegations and claims concerning the Commission had to be brought to its direct attention before complaining to the Ombudsman.

(2) The Tacis Programme provides grant-financed technical assistance to 12 countries of Eastern Europe and Central Asia, including Uzbekistan, and mainly aims at enhancing the transition process towards democracy in these countries.

(3) "TOR" stands for Terms of Reference.

(4) The Tacis Programme provides grant-financed technical assistance to 12 countries of Eastern Europe and Central Asia, including Uzbekistan, and mainly aims at enhancing the transition process towards democracy in these countries.

(5) The Ombudsman understands this date to be 13 November 2002.