Decision in case 1035/2019/PB on alleged maladministration by the EU’s Education, Audiovisual and Culture Executive Agency in a project audit

Background to the complaint

1. The case concerns the outcome of a project audit that was carried out in 2014/2015^[1] and which was concluded in 2018.

2. The audit was concluded only in 2018 because the full processing of the audit results had been suspended. This was to take account of the Ombudsman’s inquiry into a similar and related complaint, 1932/2014/JAS, which was closed in January 2018^[2].

3. In that case, the Ombudsman proposed that the EACEA reconsider the eligibility of certain costs. The EACEA did so, and to some extent revised its initial assessment to the benefit of the project partners in that case.  

4. The EACEA moreover agreed to apply its final approach in that case to the final settlement of the project here concerned.

5. After the Ombudsman’s closure of the inquiry into complaint 1932/2014/JAS, the EACEA informed the complainant in this case as follows:

 “Having received the final conclusion of the European Ombudsman and based on an in-depth review of documentation assessed by the auditors, the Agency considers the relevant provisions of Article II.1.4.I of the grant agreement and the general eligibility criteria set out in Article 172 a(1) of the implementing rules of the Financial Regulation, stating that costs must be identifiable, and verifiable are not met.” (Letter of 3 December 2018, emphasis added).

6. The EACEA did not provide the complainant with more information on how it had specifically applied its final approach in case 1932/2014/JAS to the project here concerned^[3].

7. The complainant turned to the Ombudsman, making the following points of criticism:

1) The EACEA deliberately - as an act of retribution - made a negative audit finding for this project because one of the project partners had separately complained to the European Ombudsman.

2) The EACEA had not explained how it had applied its approach in case 1932/2014/JAS to the present case (‘lack of transparency’ argument).

3) There was unequal treatment because the EACEA had not fully applied its approach in case 1932/2014/JAS to the audit of the project here concerned.

The assessment

Retribution by the EACEA

8. An act of retribution by an EU institution against someone for having complained to the European Ombudsman is maladministration of a particularly serious nature.

9. By implication, an allegation of such an act requires specific and convincing evidence to be put forward.

10. In the present case, no such evidence has been produced. The Ombudsman therefore cannot find maladministration corresponding to the allegation here in question.

Lack of transparency and alleged unequal treatment

11. Having carefully examined the documents submitted by the complainant, the Ombudsman came to the conclusion that the case required a fairly high degree of clarity and explanation on the part of the EACEA: The complainant had waited a long time for the final settlement; the sums at stake were relatively significant; and the EACEA did effectively revise its approach in case 1932/2014/JAS, which made it natural for the complainant here concerned to want to know if that same revised approach was effectively applied to its case.

12. The above quoted statement by the EACEA in its final letter to the complainant of December 2018 did not provide a sufficient degree of clarity and explanation regarding whether and how the EACEA had applied the approach in this case that it had applied in case 1932/2014/JAS. The letter contained a decision, but no explanations.

13. The Ombudsman accordingly contacted the EACEA, asking it to provide information and explanations to corroborate its claim of having effectively fulfilled its commitment to apply the final approach in case 1932/2014/JAS to this case.

14. In its reply, the EACEA submitted such information and explanations.

15. The complainant - to whom the Ombudsman forwarded the EACEA’s reply - re-stated its criticism, but did not specifically rebut the EACEA’s explanations. The complainant subsequently submitted a statement of one of its partners, which contained some detailed points of criticism of the EACEA’s handling of, and conclusions on, the 2014-1015 audit. It was suggested that the EACEA could commission a new audit.

16. The Ombudsman has carefully examined the EACEA’s reply and the related observations submitted by the complainant.

17. The Ombudsman notes that the more detailed observations of the complainant’s partner concern, in large part, the actual approach applied by the EACEA in case 1932/2014/JAS, and not specifically whether that approach was visibly and on equal terms applied to the project here in question. Beyond that, the observations address a number of factual questions, such as the adequacy of the documentation examined by the auditors and the EACEA during the 2014-2015 audit.

18. The present inquiry was opened into the three above-mentioned allegations (retribution, lack of transparency and possible unequal treatment). The Ombudsman does not consider that it would be appropriate now to extend the scope of the inquiry to cover the appropriateness of the EACEA’s approach adopted in the course of the inquiry into complaint 1932/2014/JAS, or to revisit the documentation issues that were not put forward in the complaint itself.

19. On the substance of the allegations taken up for inquiry, the Ombudsman finds that the said explanations demonstrate that the EACEA did, as a matter of fact, act consistently with its final approach in case 1932/2014/JAS, and that the EACEA in response provided adequate information and explanations.

20. It follows from the above that the related allegation of unequal treatment cannot be upheld.

Conclusion

Based on the inquiry, the Ombudsman closes the case with the finding that the EACEA adequately responded to the request for more information and better explanations. The remainder of the case did not reveal maladministration.

The complainant and the EACEA will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 04/05/2021

 

[1] The project here concerned was carried out under a grant agreement in the framework of the EU’s ‘Lifelong Learning Programme’.

[2] https://www.ombudsman.europa.eu/en/decision/en/88682

[3] The EACEA’s full substantive examination is not the object of the present complaint.