The background to the inquiry

1. The inquiry concerns a grant agreement between the Commission and a University in Lebanon for the implementation of a project designed to strengthen the environmental legislation in that country (reference: Life 02/TCY/RL/032-SELDAS - "Strengthening the environmental legislation development and application system in Lebanon" - the 'SELDAS project'). The Commission entered into the agreement with the University in September 2002.

2. The Vice-President of the University, who acted as the project co-ordinator, complained to the European Ombudsman that, although the SELDAS project had been successfully completed, the Commission refused to pay for the costs incurred by the complainant, since he had not submitted time sheets or any other evidence in support of the time he claimed he had devoted to the project. The complainant argued that the costs he claimed should have been acceptable on the basis of either the documentation he had already submitted, or on the basis of "retroactive time-sheets" (time sheets being an unfamiliar concept in Lebanon's tradition).

3. The Ombudsman declared the complaint inadmissible since the complainant was not an EU citizen or resident. Nevertheless, the Ombudsman decided to open an own-initiative inquiry on the basis of the complainant's arguments outlined above (OI/1/2008/(VIK)JMA).

4. Having reviewed all evidence, including the relevant contractual clauses, the Ombudsman considered that the Commission was legally entitled to request that the University justify costs claimed concerning work undertaken by the project's part-time employees (such as the complainant) by means of time sheets, which could be regarded as supporting evidence for such expenditure. Indeed, the University never drew up any such time sheets when replying to the Commission's specific demands in that respect. The Ombudsman nevertheless found that the complainant's argument that time sheets as a means to justify costs seemed like a foreign notion in the context of the local legal culture (which is based on trust), was reasonable. Similarly, the argument that time sheets were not a part of either the University or its partners' verification procedures was also reasonable.

5. In the course of the Ombudsman's above-mentioned own-initiative inquiry, the Commission accepted that it could still consider supporting evidence, which could prove that the disputed costs corresponded to work effectively devoted to the SELDAS project. The Commission referred specifically to staff personal agendas. However, up to the date of the Commission's position outlined above, the complainant had not yet been able to submit any documents that showed the actual time he had devoted to the SELDAS project or that allowed the Commission to accept that time with an adequate degree of certainty. The Ombudsman therefore closed own-initiative inquiry OI/1/2008/(VIK)JMA, drawing the Commission's attention to the fact that, in the interest of fairness and equitable contractual relations, it might consider instructing the other parties to a contract, who are not familiar with the European legal culture, on the meaning of some potentially contentious legal terms included in the contract (such as the requirement of time sheets). Such a practice would help to avoid similar problems in future.

6. On 23 July 2009, the complainant expressed his appreciation for the Ombudsman's inquiry. He also requested the Ombudsman's support to have the Commission settle the matter on the basis of new evidence which he enclosed with his letter; namely his personal agenda for 2004 and the recordings made therein. In that agenda, the complainant recorded the hours he worked on the SELDAS project.

7. Since the above agenda had never been previously disclosed, the Ombudsman forwarded it to the Commission, so that the latter could review its contents and establish whether or not it could accept it as evidence of the complainant's work on the SELDAS project, and, ultimately, pay him. When so doing, the Ombudsman also explained to the complainant that, were he to consider the Commission's future reply inadequate, he could submit a new complaint to the Ombudsman.

8. On 3 November 2009, the Commission responded to the complainant, explaining that, after examining the personal agenda, it concluded that that agenda did not provide any reliable information that would allow it to reconsider its previous assessment. First, there was no indication as to who owned the agenda. Second, the numbers of hours dedicated to the SELDAS project each day had been added in pencil, which, in the Commission's view, "meant that the additions were clearly not contemporary with the rest of the information in the agenda" and there was no way to directly link them to the lists of activities described in the agenda. Finally, the agenda did not always include information on the timing of each of the activities listed and, in the very few cases it did, that information did not coincide with the number of hours declared. Therefore, the Commission concluded that the entries made in the agenda could not be accepted as a replacement for time sheets, or as evidence of the time dedicated to the SELDAS project.

9. On 3 March 2010, the complainant replied to the Commission that it had accepted copies of personal agendas in another project in Lebanon, namely the project listed under the reference Life00 TCY/INT/021 SEA - "Strategic Environmental Assessment & Land Use Planning in Lebanon" (the 'SEA project'). The complainant enclosed copies of the personal agendas relating to the SEA project[1]. According to the complainant, those agendas provided no indication as to: (i) their owners; (ii) numbers of hours spent; (iii) the activities listed; or (iv) information on timings. Yet, the Commission accepted that documentation relating to the SEA project as it was, while at the same time refusing the complainant's agenda relating to the SELDAS project. The complainant asked the Commission to explain what it meant when it stated that the entries made in his agenda were not in line with the rest of the information contained in that agenda. He wanted the Commission to provide guidance as to how to resolve the matter fairly. He also emphasised in his letter that, according to the Commission's own assessment, he had successfully completed the SELDAS project. During the past four years, the complainant spent a lot of time and effort ensuring the proper completion of the SELDAS project. He trusted that the Commission would help him with the related expenses and losses he was experiencing.

10. On 30 June 2010, the Commission replied, referring to a previous letter it had sent to the complainant on 24 April 2007. At this stage, the SELDAS project was already completed. In that letter, the Commission had stated that the SELDAS project could no longer be subject to a re-evaluation because it was considered finalised in its accounting system ("decommitted"). However, unlike the SELDAS project, the SEA project was not yet completed and could be subject to re-evaluation. Consequently, the complainant could not compare the SELDAS project and the SEA project. Nevertheless, the Commission accepted the complainant's personal agenda for evaluation. However, for the reasons already explained to the complainant on 3 November 2009, the Commission confirmed that the complainant's personnel costs were ineligible.

11. On 1 October 2010, the complainant turned again to the Ombudsman (complaint 2219/2010/JF). In light of the fact that the complainant is not an EU citizen or resident, the Ombudsman declared that complaint inadmissible, in accordance with Article 228 of the Treaty on the Functioning of the European Union. Nevertheless, the Ombudsman also found that the information provided by the complainant required his careful consideration and, on 29 November 2010, he opened the present own-initiative inquiry into the Commission's above-mentioned refusal to accept the complainant's personal agenda as evidence of the time he had spent working on the SELDAS project.

The subject matter of the inquiry

12. The Ombudsman's inquiry concerned the complainant's allegation that the Commission's refusal to accept his personal agenda as evidence of time spent on the SELDAS project is unfair and inconsistent.

13. The inquiry also examined the complainant's claim that the Commission should accept his agenda and reconsider his personnel costs accrued under the SELDAS project.

The inquiry

14. On 29 November 2010, the Ombudsman asked the President of the Commission for an opinion on the allegation and claim set out above.

15. On 10 February 2011, the Ombudsman received the Commission's opinion, which he forwarded to the complainant with an invitation to make observations. The Ombudsman received the complainant's observations on 21 March 2011.

16. On 31 October 2011, the Ombudsman addressed to the Commission a proposal for a friendly solution. The Commission replied on 2 February 2012. The complainant sent his observations on that reply on 1 March 2012.

17. After careful consideration of the Commission's reply and of the complainant's observations on that reply, the Ombudsman was not satisfied that the Commission had responded adequately to his proposal for a friendly solution. He therefore made a draft recommendation to the Commission, in accordance with Article 3(6) of his Statute.

18. On 20 November 2012, the Ombudsman received the Commission's reply to the draft recommendation, which he forwarded to the complainant with an invitation to make observations. The complainant submitted his observations on 26 December 2012.

The Ombudsman's analysis and conclusions

A. Allegation of unfairness and inconsistency

Arguments presented to the Ombudsman

19. The complainant alleged that the Commission's refusal to accept his personal agenda as evidence of time spent on the SELDAS project was unfair and inconsistent.

20. In support of this allegation, the complainant argued that: (a) the information provided in his agenda was more detailed than that provided in the SEA agenda, which was accepted by the Commission as evidence of time devoted to that project; and (b) the Commission has helped beneficiaries of similar projects in Lebanon.

21. The complainant claimed that the Commission should accept his agenda and reconsider his personnel costs under the SELDAS project.

22. Additionally, the complainant argued that according to the applicable LIFE Standard Administrative Provisions (the 'LIFE Provisions') the Commission can perform checks and visits up to five years after the completion of a project or a final payment[2]. Therefore the SELDAS project could not yet be considered as fully completed.

23. In its opinion, the Commission contested the complainant's arguments. It, first, referred to the explanations provided in its letters to the complainant of 24 April 2007 and 3 November 2009. Second, it emphasised that there was no name on the complainant's agenda. It also pointed out once more that the information relating to the hours spent on the SELDAS project had been added in pencil. These entries, which were added in pencil, were not consistent with the rest of the information in the agenda (the Commission provided some examples). It was, therefore, in the Commission's view, impossible to associate those entries with the activities described in the agenda.

24. The Commission acknowledged that the beneficiary of the SEA project provided it with a personal agenda, in which he noted the time he had worked on the different projects. The Commission then analysed that agenda. The beneficiary's recordings matched the time declared in the final report and the results of the SEA project. For that reason, the Commission accepted some of that beneficiary's personnel costs.

25. Finally, the Commission emphasised that it had used the same criteria to evaluate two other projects in Lebanon. "[P]ersonal agendas have to give sufficient proof that the hours worked by part-time staff were real, incurred and verifiable and were not based on estimates." The Commission supported all Lebanese LIFE projects, treated the various projects equally, and carefully identified and evaluated interim and final reports. According to the LIFE Provisions, the time spent working on the projects must be registered in time sheets[3].

26. In his observations, the complainant again emphasised that, similarly to his agenda, the agenda relating to the SEA project did not contain any indication as to its owner.

27. The complainant then went on to explain that the hours he had written in pencil in his agenda were a summary of what was written in pen. While the complainant listed the detailed activities of each day in pen, he summarised the total hours of these activities relating to each project in pencil. The complainant referred to the examples the Commission had pointed out in its opinion and explained how many hours corresponded to each activity.

28. The complainant contested the Commission's opinion that his entries in pencil were "additions". In this respect, he took the view that it would have been easier for him to print out Outlook calendars similar to those used in the SEA project, insert the relevant information, and send the sheets to the Commission. By submitting the original agenda as it was, the complainant acted in a totally transparent manner.

29. Finally, the complainant emphasised that the Commission had considered the SELDAS project as a "technical success [and a] flagship for environmental legislation". He claimed treatment equal to that which the Commission gave to the SEA project, emphasised his significant financial loss, and asked that his personnel costs be reviewed.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

30. At the outset, the Ombudsman was satisfied that the Commission had given due regard to the legal and social contexts of the geographic area in question and had agreed to consider local beneficiaries' personal agendas, and thus the personal recordings made therein, as a possible means of providing evidence of the time those beneficiaries devoted to Commission-sponsored projects. In this respect, the Ombudsman noted that the Commission had examined both the complainant's and other beneficiaries' agendas. This was consistent with the Commission's opinion of 22 April 2008 expressed within the Ombudsman's own-initiative inquiry OI/1/2008/(VIK)JMA and noted in his decision on that inquiry:

"[t]he Commission has declared its willingness to consider other supportive evidence, instead of time sheets, which might prove that the costs in question corresponded in fact to work effectively devoted to the project. In this connection, it has referred in particular to probative means such as staff personal agendas, project/personal diaries, and/or performance records..."[4]

31. The Ombudsman thus understood that, ultimately, the analysis and the possible acceptance of the beneficiaries' recordings contained in their personal agendas did not depend on whether the projects in question were or were not already closed. The Ombudsman found the above encouraging.

32. The Ombudsman also noted the arguments provided in the Commission's opinion justifying why it could not accept the complainant's agenda as evidence of the time he devoted to the SELDAS project. When so doing, the Commission also provided reasons explaining why it accepted the personnel costs relating to the SEA project, after analysing that project beneficiary's personal agenda. The Ombudsman assessed these reasons in detail, as described below.

The owners of the agendas and the making of recordings

33. First, the Commission again emphasised that the agenda provided by the complainant made no reference to its ownership. It also pointed out that the hours dedicated to the SELDAS project on each day were written in pencil. The Commission found these writings to be "additions", inconsistent with the rest of the information contained in the agenda. It thus again referred to its letter of 3 November 2009 where it had taken the view that those "additions [were] clearly not contemporary with the rest of the information in the agenda", an assessment resulting from the fact that "the indication of the number of hours dedicated to the [SELDAS] project in each day was added in pencil..."

34. The Ombudsman emphasised that the complainant had made it clear that the agenda was his. Also the Commission's own opinion to the Ombudsman appeared to indicate that the Commission accepted that the agenda indeed belonged to the complainant[5]. Furthermore, the Ombudsman noted that the Commission had already co-operated with the complainant on a number of occasions in the past in his capacity as a Professor and a Vice-President of a well-known Lebanese University. In this context, the Ombudsman did not understand what additional evidentiary value the agenda would possess if the complainant wrote his name on it.

35. Moreover, the Ombudsman did not understand why the fact that the complainant entered the hours he had spent on the SELDAS project in pencil proved that such entries constituted a "non-contemporary addition" to the information written in the agenda in pen. In the Ombudsman's view, the only inference that could be drawn with any certainty from the fact that the complainant wrote certain entries in pencil is that he wished to clearly differentiate such entries from those that he wrote in pen.

The time devoted to projects and the assessments of final reports and results

36. The Commission stated in the opinion that the beneficiary of the SEA project "[h]ad noted the time he had worked for different projects". For the reasons explained below, the Ombudsman was unable to see why the Commission thought that the complainant did not do so as well.

37. The Ombudsman analysed the copies of the parts of the complainant's agenda that the Commission enclosed with its opinion. There, the complainant mentioned a number of activities performed on 19, 23 and 29 January 2004 and indicated the number of hours spent on a number of projects, namely "Oltero", "LIBNOR" and SELDAS. During the above three days, the complainant spent a total of 20 hours on the SELDAS project. In his observations, the complainant provided a reasonable and more detailed explanation as regards the correspondence between the hours he spent on, and the list of activities he performed for, the above different projects, including the SELDAS project, on each of those days. It follows that, similarly to the beneficiary of the SEA project, the complainant had also kept a record in his agenda of the time he spent working on different projects[6].

38. In this respect, the Ombudsman noted that, according to the Commission's opinion in the present inquiry, the information provided by the beneficiary in the SEA project matched with: (i) the time declared in the SEA final report, and (ii) the results of the SEA project. Consequently, the Commission accepted that beneficiary's agenda as "[s]ufficient proof that the hours worked by part-time staff were real, incurred and verifiable and were not based on estimates."

39. The Ombudsman noted that the Commission assessed the SEA project manager's agenda against that project's results and final report. This had the effect of the Commission accepting that agenda as sufficient evidence of the time the SEA beneficiary devoted to that project.

40. According to the Commission, two other projects in Lebanon were subject to a similar assessment[7]. However, the Commission did not state in its opinion that it applied that same procedure also to the SELDAS project or that, similarly to other projects, it had assessed also the complainant's SELDAS agenda against that project's (successful) results and final report[8].

41. It followed from the above that the Commission had not demonstrated that it was impossible for it to accept the complainant's agenda as evidence to support his personnel costs, nor that, in this regard, it had treated the complainant in the same way as other beneficiaries of its projects in Lebanon. The Ombudsman therefore made a proposal for a friendly solution, in accordance with Article 3(5) of the Statute of the European Ombudsman. The proposal was as follows:

"[t]aking into account the Ombudsman's findings, the Commission could reassess the evidentiary value of the complainant's agenda as regards the time he spent on the SELDAS project and, accordingly, reconsider his personnel costs."

In making this proposal, the Ombudsman took into account the previous history of cooperation between the complainant and the Commission in projects successfully concluded in Lebanon, which ought surely to improve the possibility of achieving a mutually satisfactory solution in the present case.

Arguments presented to the Ombudsman after his friendly solution proposal

42. In its reply to the friendly solution proposal, the Commission regretted that it was unable to accept the Ombudsman's proposal. It emphasised that, although he had been given sufficient opportunities to do so, the complainant failed to submit alternative evidence of his personnel costs in due time. It was only after own-initiative inquiry OI/1/2008/(VIK)JMA was closed that the complainant forwarded his personal agenda to the Ombudsman. That agenda does not provide sufficiently reliable and detailed information to enable the Commission to assess it properly against the results and the final report of the SELDAS project. Consequently, it is not possible to conclude that the hours spent on that project were real, incurred and verifiable. The fact that the agenda was submitted four years after the completion of the project did not facilitate matters either.

43. In his observations, the complainant emphasised, among other things, that no LIFE project beneficiary in Lebanon submitted any time sheets at the relevant time. It was only in early to mid-2007 that the Commission identified and accepted a suitable alternative to time sheets, for those projects' part-time staff. This was acknowledged by the Commission in the opinion it sent to the Ombudsman[9].

44. The complainant again insisted that, by submitting his original agenda as it was, he acted in a fully transparent manner and that the evidence he so provided was more substantive than that submitted for the SEA project, which the Commission nevertheless accepted as appropriate alternative evidence. The complainant stated that he incurred significant financial loss and the Commission should compensate him, at least partially.

The Ombudsman's assessment leading to a draft recommendation

45. At the outset, the Ombudsman noted that, in its reply to his proposal for a friendly solution, the Commission stated that "[t]he fact that [the agenda] was submitted four years after the completion of the project d[id] not facilitate matters either" (emphasis added). The Ombudsman was surprised by this statement, as it appeared to contradict the Commission's previously expressed willingness to look into the probative value of the complainant's agenda, despite the fact that the agenda was submitted only after the Ombudsman closed his own-initiative inquiry OI/1/2008/(VIK)JMA.

46. Moreover, the Commission failed to explain why the fact that the complainant submitted his agenda in 2009 should have any negative impact on its assessment of the information contained in that agenda. Nor did the Commission explain how submitting the agenda in 2007[10] could have "facilitate[d] matters" in respect of its assessment of such information.

47. In addition, the Commission appeared not to have taken into account its longstanding relationship of trust with the complainant, despite the Ombudsman’s suggestion that it should do so. The Ombudsman emphasised in this regard that, once the Commission accepted (which was not contested) the principle that personal agendas could provide an alternative to time sheets as a source of evidence, it could not reasonably disregard the fact that, because of their personal nature, such agendas are likely to be drafted in an informal manner.

48. In light of the foregoing, the Ombudsman was not convinced that the Commission's view, expressed in reply to his proposal for a friendly solution that

"[t]he complainant's personal agenda does not provide sufficiently reliable and detailed information to properly assess it against the [SELDAS] project's results and final report in order to conclude that hours worked were real, incurred and verifiable"

was based on a genuine assessment of the agenda's probative value as an alternative to time sheets.

49. The Ombudsman regretted that, in substance, the Commission's reply to the friendly solution proposal simply restated the position it had already expressed in its opinion, without advancing any new arguments. The Ombudsman had clearly pointed out to the Commission why that position could not be considered satisfactory[11]. However, the Commission did not even comment on, let alone contest, the Ombudsman's analysis.

50. The Ombudsman, therefore, found that, yet again, the Commission had failed to demonstrate that it could not accept the complainant's agenda as evidence in support of his personnel cost claims. Nor had it demonstrated, in this regard, that it had treated the complainant in the same way as other beneficiaries of its projects in Lebanon. This constituted an instance of maladministration. The Ombudsman therefore made a draft recommendation, in accordance with Article 3(6) of his Statute, that

"[t]he Commission should reassess the evidentiary value of the complainant's agenda as regards the time he spent on the SELDAS project and, accordingly, reconsider his personnel costs."

51. In making this draft recommendation, the Ombudsman again took into account the previous history of cooperation between the complainant and the Commission in projects successfully concluded in Lebanon, and invited the Commission seriously to take that history into consideration with a view to improving the possibility of achieving a satisfactory solution in the present case.

52. The Ombudsman encouraged the Commission, in preparing its detailed opinion of the draft recommendation, to adopt a balanced approach, which took into account not only financial risks, but also the reputational risks to the European Union of the Commission being perceived as acting unfairly. The Ombudsman emphasised in this regard that acceptance of the draft recommendation in the present case would demonstrate the Commission's willingness to listen, to act reasonably and to co-operate with the Ombudsman.

Arguments presented to the Ombudsman after his draft recommendation

53. The Commission, in sum, repeated the arguments it had made in its earlier submissions. It, again, considered that the agenda did not present a clear link between the different individual activities listed therein and the SELDAS project. It further emphasised that the issue of whether the annotations in ink and those in pencil were contemporaneous was relevant because, if they were not, that is, in the event that the information relating to the time spent on the SELDAS project was added later, it was unlikely that the complainant remembered exactly "what letter or which briefing the original annotations referred to."

54. The Commission added that the hours noted down by the complainant in his agenda by means of

"[t]he pencil annotations ... add up ... to 1723 hours for the year 2004. This corresponds to 216 days (still according to the complainant's own calculation, which is roughly equivalent to 9.8 months)."

However, the Commission pointed out, in his final report, the complainant declared a total of 5.4 months of work on the SELDAS project in 2004. The complainant's agenda, therefore, did not give a reliable account of the expenses incurred by the SELDAS project and could not, therefore, have served as a basis for his financial claim.

55. The Commission added further that, contrary to the complainant,

"[t]he beneficiary [of the SEA project] submit[ted] timesheets... which corresponded to the time declared in the financial report. [T]he Commission replied that, since these timesheets had obviously been prepared after the end of the project, they could not be considered as a reliable and accurate picture of the actual time devoted to the project.

The beneficiary ... recognis[ed] that the timesheets had been prepared after the end of the project but insist[ed] that the information contained therein was accurate since it was based on the annotations on personal agendas and on records of staff performance. These additional elements were submitted and evaluated by the Commission.

The records of staff performance include, for each year, a list of the activities performed by the member of staff and can, therefore, be considered equivalent to the information submitted by the complainant for the SELDAS project.

The copies of personal agendas had, as identified by the complainant, serious formal problems, such as the lack of the name of their owner or the lack of detailed information on the individual activities performed in each day. The agenda annotations, lacking precision, always mentioned, however, the project name (SEA).

The Commission verified, however, that the days in which the SEA project was mentioned in the agenda corresponded to the days in which time had been indicated in the timesheets submitted previously. [T]he time declared in the timesheets corresponded to the time declared in the financial report.

Since all the different pieces of information ... were coherent, the Commission ... accepted the evidence provided and therefore considered eligible the personnel costs declared by the [SEA] project."

56. In light of all the above, the Commission concluded that it had sufficient evidence to show that the complainant did not base his personnel costs on a time recording method which could be regarded as an acceptable alternative to the compulsory timesheets and which offered the same level of assurance. It therefore reiterated its view that it had treated all beneficiaries of LIFE projects in Lebanon equally and that it was the complainant who had failed accurately to declare his personnel costs.

57. In his observations, the complainant, in sum, repeated the arguments he had made in his earlier submissions. He emphasised, among other things, that he had not made any "additions" in his agenda. He further contested the Commission's calculations, arguing that they could only be correct if he worked only eight hours a day. However, as Vice-President of a University, the complainant worked far longer hours each day. In any event, nothing prevented him from declaring in the final report fewer hours than the hours he had actually worked[12].

58. Finally, the complainant took the view that, overall, there was no major difference between the evidence he provided and that submitted by the beneficiary of the SEA project. In situations where differences existed, the complainant actually provided more information than the beneficiary of the SEA project.

The Ombudsman's assessment after his draft recommendation

59. The Ombudsman cannot but express regret at the Commission's decision not to follow his draft recommendation. That decision is all the more disappointing, since it is based on assumptions which find no support in undeniable facts, demonstrates an unreasonable understanding of fair treatment, and harms the Commission's own image in the eyes of trustworthy beneficiaries in sensitive regions of the world.

60. While it is true that, had the entries written in pencil been "additions", there could be doubts as to whether the complainant recalled the time spent on the SELDAS project correctly, the fact remains that the Commission offered no evidence of such erroneous recollections and the complainant has continuously denied having made any such "additions". Thus, the Commission's position is clearly not supported by undeniable facts.

61. Relatedly, the Commission has, in sum, acknowledged in its reply to the Ombudsman's draft recommendation, that the agendas of the complainant and the SEA project's beneficiary provided, essentially, the same information. The only difference between the two agendas was that the time spent on the SEA project indicated by the beneficiary was equivalent to that recorded in his timesheets (which the Commission did not accept) and in the SEA project's final report. The complainant, however, recorded in his agenda more time than that declared in the SELDAS project's final report.

62. It follows that, had the complainant declared the same amount of time in his agenda and in the SELDAS project's final report, the Commission would have had no reason, having regard to the principle of equal treatment, not to accept his personnel costs in the same way as it accepted the SEA project beneficiary's costs. This, reasonably, is at odds with a situation where the beneficiary actually declared in the final report fewer hours than the hours he indicated he had worked as recorded in his personal agenda. It follows that the Commission's understanding of fair treatment is anything but fair.

63. Finally, by paying no regard to its history of cooperation with the complainant in other projects that had been successfully concluded in Lebanon and by ignoring the Ombudsman's suggestion that it take account of the reputational risks to the European Union of the Commission being perceived as acting unfairly, the Commission has harmed its own image in the eyes of trustworthy beneficiaries in sensitive regions of the world.

64. All the above indicates that the Commission committed an instance of maladministration. When an institution does not comply with the Ombudsman's draft recommendation, the only further step that is available to the Ombudsman is to invoke Article 3(7) of his Statute and to submit a special report to the European Parliament. In the present case, however, the Ombudsman does not consider that the Commission's failure outlined above is of a general character or has implications justifying the submission of a special report to the European Parliament[13]. He, therefore, closes the case with the critical remark made below.

C. Conclusion

On the basis of his own-initiative inquiry, the Ombudsman closes it with the following critical remark:

The Commission has based its position on assumptions which find no support in undeniable facts, it has demonstrated an unreasonable understanding of fair treatment, and, in so doing, has harmed its own image in the eyes of trustworthy beneficiaries in sensitive regions of the world.

This constitutes an instance of maladministration.

The complainant and the President of the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 13 February 2013

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[1] The copy of the letter sent to the Ombudsman did not include any annexes.

[2] The Commission provided a copy of the LIFE Provisions with its opinion. Article 29(2) of the LIFE Provisions provides that "[c]ontrols may be initiated up to five years after the completion of the project or final payment..."

[3] Article 21(2) of the LIFE Provisions: "[p]ersonnel costs shall be charged in respect of the actual time devoted to the project... The project working time of each employee... shall be registered using time sheets established and certified by the beneficiary and its eventual partners."

[4] Point 31 of the Ombudsman's decision on OI/1/2008/(VIK)JMA, available on the Ombudsman's website (http://www.ombudsman.europa.eu).

[5] The Commission's opinion provides for the following statements: "[i]t was at this later stage that [the complainant] sent his personal agenda for 2004 to the Ombudsman... The personal agenda of [the complainant], sent to the European Ombudsman in 2009... For the reasons mentioned above the Commission had to refuse the personal agenda of [the complainant]... The Commission showed its will to collaborate when accepting the personal agenda of [the complainant] in 2009 for evaluation... For the reasons given... the Commission cannot accept the complainant's personal agenda..." (emphasis added)

[6] "19.01.2004: 7h30 - 17h00 MoE [Ministry of Economy] (i.e. the total number of hours is about 9hrs)

- "Libnor, Libnor, Libnor, letters, water letters, Annual Report and telephone" are the detailed activities

- OLTERO (is OGERO) 3hrs, LIBNOR 3hrs and SELDAS 3hrs are the totals for each project; i.e. Libnor, Libnor, Libnor are summarized as LIBNOR (3 hrs); letters, water letters, Annual Report are summarized as SELDAS (3 hrs) and telephone as OGERO (the phone utility in Lebanon) (3 hrs) - totalling to 9 hrs as per the period shown next to MoE (7h30 - 17h00)

23.01.2004: MoE 7h30 - 16h00 (total of about 9 hours), the various activities (workplan, briefing, DEA, etc.) are all for SELDAS project, hence 9 hours are accounted for SELDAS

29.01.2004: MoE 7h30 - 15h20 (total of about 8 hours), the various activities (1st draft of pres., salary, e-mails, TVA issue, etc.) are all for the SELDAS project, hence 9 hours are accounted for SELDAS".

[7] "Two other Lebanese projects which presented their final reports after the SEA project (TARGET and SISPAM) also presented personal agendas which were evaluated following the same criteria applied to the SEA project..."

[8] According to the Commission's opinion, "[e]nd of 2006, when evaluating the final report of the SEA project, the evaluation resulted, among others, in non eligible personnel costs due to the fact that no timesheets were filled in and retroactively filled in timesheets were not accepted by the Commission. It was basically the same problem and the same assessment as for the SELDAS project. However, following an exchange of correspondence the beneficiary informed the Commission that he disposed of a personal agenda in which he had noted the time he had worked for different projects. This personal agenda was verified by the Commission and resulted in partial recognition of the personnel costs of part-time staff as the recording matched with the time declared in the final report and the results of the project. Two other Lebanese projects which presented their final reports after the SEA project (TARGET and SISPAM) also presented personal agendas which were evaluated following the same criteria applied to the SEA project... In all these evaluations the Commission applied the fundamental principle that personal agendas have to give sufficient proof that the hours worked by part-time staff were real, incurred and verifiable and were not based on estimates" (emphasis added).

[9] "[T]he existence of personal agendas was brought to the attention of the Commission only at the beginning of 2007, after evaluation of the final report of the SEA project and, consequently, the same approach has been applied to TARGET and the SISPAM project. The Commission showed its will to collaborate when accepting the personal agenda of [the complainant] in 2009 for evaluation..."

[10] See footnote 10 above.

[11] See points 33 to 41 of this decision.

[12] In this respect, the complainant referred to "[t]he communication between him and the University President (referred to in ... the Commission's letter) that he would be spending 45% of his time on the SELDAS project - which correspond to 5.4 months [and to the] the project financing conditions - where the EC contribution [was] 68% of the total eligible cost with a ceiling of 450,500 EUR; i.e. there [was] no point in over-billing".

[13] In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament is of inestimable value for his work. The Ombudsman added that special reports should therefore not be presented too frequently, but only in relation to important matters of general interest and where Parliament is able to take action in order to assist the Ombudsman. The Annual Report for 1998 was submitted to, and approved by, the European Parliament.