Strasbourg, 21 December 2006

Dear Mr Z.,

On 20 August 2006, you made a complaint to the European Ombudsman concerning the European Commission's handling of your proposal that had been registered under reference 518498-1.

On 2 September 2005, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 19 December 2005. I forwarded it to you on 20 December 2005 with an invitation to make observations, which you sent on 12 January 2006.

On 20 April 2006, I asked the Commission for further information concerning this case, asking for a reply by 31 May 2006. On 11 July 2006, in the absence of a reply, I sent a reminder to the Commission. On 28 July 2006, the Commission informed me that its reply would be sent as soon as possible.

The Commission sent its reply (which was dated 5 July 2006) on 28 July 2006. I forwarded it to you on 23 August 2006 for your observations, which I received on 25 September 2006.

On 26 September, 4 October, 6 October, 20 November and 21 November 2006, you sent me further information concerning your complaint.

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

THE COMPLAINT

The complainant, a German scientist, is the co-ordinator of a proposal for funding that was submitted to the Commission under Call for Proposals FP6-2004-NMP-NI-4 (a thematic call for proposals in the area of nanotechnology). The proposal had the title "AID (Variable transdermal drug delivery in vivo)".

The relevant call for proposals had been published in the Official Journal (OJ 2004 C 304, p. 18). Point 5 of call for proposals stipulated as follows: "Proposals for indirect RTD actions are invited to be submitted only as an electronic proposal via the web-based Electronic Proposal Submission System ("EPSS"). In exceptional cases, however, a co-ordinator may request permission from the Commission to submit on paper in advance of a call deadline. (...)". The deadline for proposals was 17 March 2005.

According to the complainant, two proposals were submitted by him. The first of these was sent via the EPPS and registered by the Commission under reference 026415. This proposal was subsequently rejected by the Commission. On 15 March 2005, the complainant sent another proposal to the Commission by courier service. This proposal was registered by the Commission under reference 518498-1. An acknowledgement of receipt was sent to the complainant the same day. According to the complainant, this proposal differs from the one sent via the EPSS as regards both subject and scope.

Not having received any further information, the complainant turned to the person in charge at the Commission, Mrs. F. In her reply that appears to have been sent in July 2005, Mrs F. informed the complainant that the paper version of the proposal submitted by him had not been eligible in this call for proposals and that only e-versions had been evaluated. Mrs F. further explained that the proposal that had been received from the complainant via the EPSS (reference 026415) had been evaluated and that the Commission had informed the complainant by letter of 25 April 2005 of the (negative) results of this evaluation.

The complainant objected to this decision, relying on information published on the European Commission's SME TechWeb website (http://sme.cordis.lu). The following information is provided in a document under the heading "Support for SMEs in FP6" (http://sme.cordis.lu/idea/1background.cfm):

"Applicants can prepare and submit their proposal using one of four methods:

• On-line preparation and submission using the Electronic Proposal and Submission System (EPSS).
• Preparation off-line using the same tool as EPSS, followed by on-line submission via EPSS.
• Off-line preparation using the same tool as EPSS, followed by submission on CD-Rom or diskette.
• On paper (using block capitals).

The EPSS offers many advantages – it is quicker, it ensures the application will arrive on time and it is possible to revise the application right up to the call deadline."

On 8 August 2005, in the absence of Mrs F., Mr T., a Commission official, confirmed that the complainant's proposal was not eligible since it had not respected the rules for submission. Mr T. enclosed a copy of the relevant passage from the call for proposals (point 5).

In his complaint to the Ombudsman, the complainant alleged that he had been given incorrect information by the Commission and that the latter had wrongly refused to evaluate his proposal.

The complainant claimed that the proposal should be funded without an evaluation and that damages should be paid.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The Call for Proposals FP6-2004-NMP-NI-4 envisaged that proposals had to be submitted in two steps. Proposals having passed the minimum thresholds required in the first stage (12 out of 15 points) were to be retained for the second stage ('go' proposals). Co-ordinators of 'go' proposals were to be requested to provide a complete proposal, which would then be evaluated against the whole set of evaluation criteria.

Point 5 of the call for proposals set out the following rules for submission of proposals: "Proposals for indirect RTD actions are invited to be submitted only as an electronic proposal via the web-based Electronic Proposal Submission System (EPSS). In exceptional cases, however, a co-ordinator may request permission from the Commission to submit on paper in advance of a call deadline. (...) The request must be accompanied by an explanation of why the exception is being sought. Proposers wishing to use paper submission take the responsibility for ensuring that such requests for exemption and the associated procedures are completed in time for them to meet the call deadline."

The complainant submitted a first-step proposal (acronym "AID") under the above-mentioned call for proposals. He submitted his proposal electronically (proposal n o 026415) and on paper (proposal n o 518498-1).

Proposal n o 026415 was eligible and was evaluated according to the rules of the Commission. The score given by the five independent evaluators was 0.5 points. Given that only applicants who had submitted proposals with scores of at least 12 out of 15 points were requested to submit a complete proposal, no second step evaluation was therefore requested. The complainant had been informed of this result by letter of 25 April 2005.

Proposal n o 518498-1 was not eligible since no permission for the submission of a paper version had been requested from and granted by the Commission, as required by the call for proposals.

There was no reason to accept the complainant's claim for an evaluation of the paper version of the proposal because the complainant had not complied with the clearly stated provisions of the call for proposals. In order to comply with the principle of non-discrimination, the Commission had to apply the rules stated in the call for proposals to all proposers.

The complainant's observations

In his observations, the complainant maintained his complaint.

Further inquiries

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

The request for further information

On 20 April 2006, the Ombudsman therefore asked the Commission to provide the following information:

In his complaint to the Ombudsman and in his previous correspondence with the Commission, the complainant referred to a document under the heading "Support for SMEs in FP6" which is available online (http://sme.cordis.lu/idea/1background.cfm). According to this document, applicants may use one of four methods to submit applications. These methods comprise both submission via the EPSS and submission of a paper copy. The Ombudsman further notes that if one enters the website to which the call for proposals referred (http://www.cordis.lu/fp6), the reader is led to a document ('Prepare + submit a proposal - EPSS') which states that electronic online proposal preparation and submission is the "recommended" method in FP6. Could the Commission please comment on these documents and explain why it nevertheless considers that the complainant's allegation that he had been given incorrect information by the Commission is unfounded ?

The Commission's reply

In its reply, the Commission made the following comments:

The document under the heading "Support for SMEs in FP6" is a general document that refers to calls of the seven priorities. Therefore it mentions the existing possibilities of submission without going into all the details and conditions specific to each call for proposals.

By way of guidance, the relevant page published for the Call for Proposals FP6-2004-NMP-NI-4 leads the reader to an Information Package. A complete 'Guide for Proposers' is included in this Information Package. The title page of this Guide clearly indicates "Electronic submission only".

It should be noted that the 'Prepare + submit a proposal - EPSS' page of the CORDIS website is not specific to any call for proposals. This is a general information page giving information on the use of the electronic tool for submitting proposals.

However, section 3.4 ("Submission of proposals") of the 'Guidelines on Proposal Evaluation and Selection Procedures', which is also available on the CORDIS website, foresees that "[t]he Commission reserves the right to restrict submission for particular calls to only electronic proposals". In the case of the present call for proposals, this restriction had been clearly stated in point 5 thereof.

The complainant's observations

In his observations, the complainant maintained his complaint. According to the complainant, the indication "Electronic submission only" did not exclude the possibility to submit a proposal on paper. The relevant words only meant that where electronic submission was chosen, the provisions of this specific 'Guide' had to be applied. The Commission had relied on the wording of the publication on page 18 of the Official Journal C 304 of 8 December 2004 which concerned indirect RTD actions. However, according to the complainant this did not make sense, since his project had been an integrated project ("IP") and not an indirect RTD action.

THE DECISION

1 As regards the allegation that the Commission provided incorrect information and wrongly refused to evaluate the complainant's proposal

1.1 The complainant, a German scientist, is the co-ordinator of a proposal for funding that was submitted to the Commission under Call for Proposals FP6-2004-NMP-NI-4(1). Point 5 of the call for proposals stipulated as follows: "Proposals for indirect RTD actions are invited to be submitted only as an electronic proposal via the web-based Electronic Proposal Submission System ("EPSS"). In exceptional cases, however, a co-ordinator may request permission from the Commission to submit on paper in advance of a call deadline. (...)". The deadline for proposals was 17 March 2005.

According to the complainant, two proposals were submitted by him. The first of these was sent via the EPPS and registered by the Commission under reference 026415. This proposal was subsequently rejected by the Commission on the grounds that it did not pass the minimum thresholds required to be retained. The second one was sent by courier service and registered by the Commission under reference 518498-1. This proposal was rejected on the grounds that it was not eligible.

1.2 In his complaint to the Ombudsman, the complainant alleged that he had been given incorrect information by the Commission and that the latter had wrongly refused to evaluate his proposal. In order to support his allegation, the complainant relied on information published on the relevant website of the Commission, according to which proposals could be submitted using one of four methods, including submission of a paper copy, and that submission via the EPSS was the "recommended" method.

1.3 In its opinion, the Commission noted that the complainant had submitted his proposal via the EPSS (proposal n o 026415) and on paper (proposal n o 518498-1). The Commission explained that since the complainant had not asked for prior permission to submit a paper version, that version of the proposal was not evaluated. The electronic version was evaluated, but was not awarded sufficient marks to enable it to be retained.

1.4 In his observations, the complainant maintained his complaint.

1.5 On 20 April 2006, the Ombudsman asked the Commission to address the relevance of the information published on its website to which the complainant had referred.

1.6 In its reply, the Commission submitted that the documents to which the complainant had referred were documents setting out general information on the existing possibilities of submission without going into all the details and conditions specific to each call for proposals. The Commission explained that section 3.4 ("Submission of proposals") of the 'Guidelines on Proposal Evaluation and Selection Procedures', which was also available on its website, foresees that "[t]he Commission reserves the right to restrict submission for particular calls to only electronic proposals". It added that in the case of the present call for proposals, this restriction had been clearly stated in point 5 thereof. The Commission further submitted a copy of the 'Guide for Proposers' concerning Call for Proposals FP6-2004-NMP-NI-4. The Commission pointed out that the title page of this Guide clearly indicated "Electronic submission only".

1.7 In his observations, the complainant maintained his complaint. According to the complainant, the indication "Electronic submission only" did not exclude the possibility to submit a proposal on paper. The relevant words only meant that where electronic submission was chosen, the provisions of this specific 'Guide' had to be applied. The complainant further submitted that the Commission's reference to the wording of the publication on page 18 of the Official Journal C 304 of 8 December 2004, which concerned indirect RTD actions, did not make sense, since his project had been an integrated project ("IP") and not an indirect RTD action.

1.8 The Ombudsman considers it useful at the outset to stress that the present inquiry concerns the Commission's handling of the proposal that was submitted to the Commission in a paper version (proposal n o 518498-1). The Commission's assessment of the proposal that was submitted via the EPSS (proposal n o 026415) is therefore not covered by this decision. The complainant is free to submit a new complaint to the Ombudsman concerning this issue, if he should consider that the Commission's handling of this proposal involved maladministration.

1.9 The Ombudsman notes that the specific provisions concerning the present case are set out in the Call for Proposals FP6-2004-NMP-NI-4 which was published on page 18 of the Official Journal C 304 of 8 December 2004. In his observations on the Commission's reply to the request for further information, the complainant appears to suggest that this text is not relevant for the present case. However, the complainant has not provided a convincing explanation for this view. Together with his complaint, the complainant submitted a copy of the acknowledgement of receipt that he had received as regards proposal n o 518498-1. This letter notes that the proposal was made under the Call for Proposals FP6-2004-NMP-NI-4. Given that the specific conditions concerning this call are, as explained above, set out in the text published on page 18 of the Official Journal C 304 of 8 December 2004, the Ombudsman does not see why this text should not be relevant for the present case. The Ombudsman notes that the complainant has argued that his project was an integrated project ("IP") and not an indirect RTD action. However, both the title and point 2 of the Call for Proposals FP6-2004-NMP-NI-4 make it clear that this call concerned "indirect RTD actions". The complainant submitted his proposal under this call. Ombudsman therefore considers that the specific rules set out in this call are applicable, regardless of whether the complainant's proposal concerned an indirect RTD action or not.

1.10 As the Commission has pointed out, point 5 of the Call for Proposals FP6-2004-NMP-NI-4 stipulates that submissions were to be made only via the EPSS. The Ombudsman further notes that t he title page of the 'Guide for Proposers' concerning Call for Proposals FP6-2004-NMP-NI-4 clearly indicated "Electronic submission only". It is true that this did not exclude the possibility to submit a proposal on paper. However, point 5 of the call for proposals made it clear that the submission of a paper copy could only be envisaged in exceptional cases and with the permission of the Commission. The Ombudsman notes that the complainant has not disputed the Commission's claim that no request for permission to submit the proposal on paper was made by him.

1.11 It is true that the two documents published on the Commission's relevant website to which the complainant referred indicate that there are several possibilities for submitting proposals, including submission in paper form. However, in its reply to a request for further information concerning this issue the Commission has explained that these were documents setting out general information on the existing possibilities of submission without going into all the details and conditions specific to each call for proposals. The Ombudsman finds this explanation convincing. He further notes that the specific conditions applying to the present call for proposals were set out on page 18 of the Official Journal C 304 of 8 December 2004.

1.12 In these circumstances, the Ombudsman considers that the Commission's decision to reject the proposal which was submitted on paper (proposal n o 518498-1) was in conformity with the rules governing the relevant call for proposals. In light of the explanations provided by the Commission, there are furthermore no elements suggesting that incorrect information was provided to the complainant. In these circumstances, there appears to have been no maladministration as regards the issues covered by the complainant's allegation.

2 As regards the complainant's claim

2.1 The complainant claimed that his proposal should be funded without an evaluation and that damages should be paid.

2.2. In view of his findings concerning the complainant's allegation (see point 1.12 above), the Ombudsman considers that this claim must fail.

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) OJ 2004 C 304, p. 18.