The background to the complaint

1. The present case concerns the rejection of the complainant's grant application due to an alleged failure to submit a technical/narrative report.

2. The complainant is an Italian non-profit association. On 13 March 2012, it submitted a grant application in response to Call for Proposals JUST/2011-2012/FRC/AG/4000002773[1] (hereinafter referred to as the 'Call for Proposals') organised by the European Commission. The complainant's application consisted of a total number of 37 files.

3. By letter of 25 May 2012, the Commission informed the complainant that its application had been unsuccessful because an annual technical/narrative report (referred to as Annex 8 in the Call for Proposals) was not enclosed with its application. The Commission based itself on point 6.2.2 of the Call for Proposals, according to which the grant application had to be submitted through the required system on a standard form with all required annexes duly completed.

4. On 6 June 2012, the complainant replied to the Commission's above-mentioned letter and took the view that it had correctly uploaded the whole application file, including Annex 8. It also enclosed a screenshot indicating that the application file had been correctly uploaded as well as other documents confirming the submission of its application.

5. The Commission sent a further reply to the complainant on 20 June 2012, explaining that a file entitled "Annex 8" was indeed attached to the complainant's application, but this file did not contain the annual technical/narrative report of the organisation but merely an explanatory note of its balance sheet for 2010.

6. Still on 20 June 2012, the complainant's lawyer wrote to the Commission and reiterated the complainant's view that its application was complete and correct.

7. The complainant sent a further letter to the Commission on 27 June 2012 and asked for clarifications on what the technical/narrative report was supposed to look like, given that neither the Call for Proposals nor the Guide for Applicants[2] contained a model or specifications concerning the contents, data or information to be included in the report. The only reference to the technical/narrative report included in the documents available to the complainant was that the document is "an annual technical/narrative report of the applicant organisation for the previous year".

8. On 13 July 2012, the Commission replied to the complainant and explained that there is indeed no template or reference model for the technical/narrative report. It can thus be presented in any format. The Commission moreover explained that the purpose of the requirement to submit the report is to have sufficient proof of an applicant's operational and professional capacity to complete the proposed action. To this end, the Commission assesses the curricula vitae of the key staff in order to evaluate whether they have the necessary skills, experience and capacity to implement the project. Moreover, the activities and projects of the previous year which are to be set out in the technical/narrative report enable the Commission to get a clear view of the overall competence, qualifications and experience of the applicant. Finally, the Commission added that questions regarding the Call for Proposals could have been sent by e-mail to a dedicated mailbox. However, it received no question seeking clarification of the format or contents of the report in question.

9. On 10 September 2012, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

10. The Ombudsman opened an inquiry into the following allegation and claims:

Allegation

The Commission wrongly excluded the complainant's grant application from the substantive evaluation, because it allegedly failed to submit a technical/narrative report.

Claims

(1) The Commission should evaluate the complainant's grant application.

(2) The Commission's future calls for applications should not contain requirements which are not sufficiently clear and thus open to misinterpretation.

The inquiry

11. On 2 October 2012, the Ombudsman requested the Commission to submit an opinion on the complainant's allegation and claims. On 23 January 2013, the Commission sent its opinion, which was forwarded to the complainant for observations. Any observations were to be sent by 28 February 2013. However, the complainant did not submit any observations.

The Ombudsman's analysis and conclusions

Preliminary remark

12. The complainant put forward one allegation and two claims. Given their factual connection, the Ombudsman will deal with them together.

A. Allegation that the Commission wrongly excluded the complainant's grant application from the substantive evaluation due to the alleged non-submission of a technical/narrative report and first and second claims

Arguments presented to the Ombudsman

13. In its complaint to the Ombudsman, the complainant alleged that the Commission wrongly excluded its grant application from the substantive evaluation due to the alleged failure to submit a technical/narrative report. In support of that view, the complainant argued that (i) the requirement to submit a technical/narrative report was not specified, and (ii) the documents submitted by it met that requirement in substance. The complainant claimed that the Commission should evaluate its grant application, and that the Commission's future calls for proposals should not contain requirements which are not sufficiently clear and thus open to misinterpretation.

14. In its opinion, the Commission first pointed out that a call for proposals must specify any supporting documents that applicants are required to produce in order to prove eligibility. It further referred to Article 115(1) of the Financial Regulation[3], according to which "[t]he selection criteria shall be such as to make it possible to assess the applicant's ability to complete the proposed action or work programme".

15. The Commission further explained that it also follows from Article 173(2) of the Implementing Rules of the Financial Regulation[4] that "the application shall show the legal status of the applicant and his financial and operational capacity to carry out the proposed action or work programme". In this respect, the Commission explained that the ability of an applicant has to be assessed against two aspects, namely, (i) the financial and (ii) the operational or technical capacity. With reference to Article 176 of the Implementing Rules, it argued that the applicant must have "stable and sufficient sources of funding to maintain his activity throughout the period during which the action is being carried out or the year for which the grant is awarded and to participate in its funding" and "the professional competencies and qualifications required to complete the proposed action or work programme [...]".

16. As regards operational capacity, the Commission explained that it may be assessed on the basis of applicants' qualifications, professional experience and references in the field concerned. As in the case of financial capacity, it is important to specify the supporting documents to be produced for the purpose of verifying the applicant's operational capacity. Hence, the curricula vitae of the persons primarily responsible for managing and implementing the operation and the organisations’ narrative/technical reports were requested for this purpose.

17. With reference to the wording of the Call for Proposals and the Guide for Applicants, the Commission explained which documents had to be enclosed with the application. As to the complainant's application, the document submitted by it and uploaded as Annex 8 was an explanatory note of the balance sheet explaining the relevant budget entries, as acknowledged by the complainant itself. The document did not provide any proof of the applicant's qualifications, professional experience and references in the field concerned. Furthermore, no other documents submitted by the applicant under this call enabled the Commission to establish whether it met the requirement of operational capacity, as referred to in point 15 above.

18. In light of the above, the Commission took the view that the complainant's application was not in compliance with the requirements specified in the Call for Proposals, where it was explicitly stated that in the absence of any of the documents, the application will be considered ineligible. Therefore, the Commission saw no grounds to proceed with the evaluation of the complainant's proposal.

19. The Commission further explained that the compulsory requirement to submit the narrative/technical report has been present in all Calls for Proposals managed by the relevant Directorate-General since 2010. That Directorate-General has received close to 2 000 applications for funding since then, and no applicant, apart from the complainant, has contested the rejections on these grounds or requested clarification of this requirement. The Commission thus considered this requirement to be sufficiently clear. Moreover, the Commission added that, before the deadline for submitting the application, the applicants have the possibility of contacting the Commission services and asking questions regarding the call for proposals if they need any clarifications. However, the complainant did not avail itself of this possibility.

20. The complainant did not submit any observations on the Commission's opinion.

The Ombudsman's assessment

21. The Ombudsman notes that the relevant parts of Section 8 of the Call for Proposals read as follows:

"[A]pplicants must submit the following supporting documents using their own format:

[...]

Annex 8. Annual technical/narrative report of the applicant organisation for the previous year."

[...]

An application is considered complete only if the Grant Application Form and all annexes are attached and uploaded on time in PRIAMOS under one single 'registration number'.

In the absence of any of the documents the application shall be considered ineligible."

22. Moreover, Section 10 of the Call for Proposals contains the following information: "Please read the Guide for applicants carefully, as it contains all details required for applying. It provides explanations and further details on the conditions to be met, the documents to fill out and submit, as well as instructions on how this must be done using PRIAMOS. It is considered as an integral part of the conditions of the call."

23. Point 4.6.6 of the Guide for Applicants stipulates the following:

"Annual technical/narrative report of the Applicant organisation for the previous year - Annex 8

! Note 16.

Annex 8 should not be submitted if the Applicant is a government body (e.g. ministry, local, regional, national or federal government authority, municipality or other public body) or a university. However, the above entities should be prepared to supply the documents upon request of the Commission."

24. In the present case, there appears to be disagreement about what is to be understood by a 'technical/narrative report'. It is not disputed that the file the complainant sent as a 'technical/narrative report' was an explanatory note of its balance sheet for 2010, a copy of which the complainant also enclosed with its complaint to the Ombudsman.

25. The Ombudsman notes that the provisions quoted in points 21 to 23 above do not contain any definition or description of what a technical/narrative report is. At the same time, it should be recalled that, as mentioned in points 14 and 15 above, the Commission referred to the applicable provisions of the Financial Regulation and its Implementing Rules which stipulate that it must be able to objectively check the applicant's qualifications, professional experience and other relevant references in order to verify its skills, experience and capacity to implement the project.

26. In this regard, the Ombudsman takes the view that the Commission's interpretation of what a technical/narrative report is appears reasonable against the background of the applicable provisions of the Financial Regulation and its Implementing Rules. The complainant argued that the information it submitted in substance corresponded to a 'technical/narrative report'. After having examined the application file submitted by the complainant, and in particular the document uploaded as Annex 8, the Ombudsman notes that it contained information on issues such as the complainant's fixed and other assets, number of staff and contractual obligations, without however providing any tangible proof of the complainant's operational or professional capacity. For this reason, the Ombudsman considers that the required information was not submitted and the Commission was thus entitled to reject the complainant's application.

27. Nevertheless, the question remains whether the Commission made it sufficiently clear at the outset what it understood by the term 'technical/narrative report'. In this respect, it should be noted that the Guide for Applicants merely contained the information that a 'technical/narrative report' should not be submitted if the applicant is a government body. The Commission argued, in substance, that experience had shown that the term 'technical/narrative report' was sufficiently clear and that, if the complainant had any doubts, it could have asked for clarifications. The Ombudsman considers these arguments to be convincing and therefore concludes that there was no maladministration in the Commission's activities. However, given that the present case has revealed that the term could be open to misinterpretation, he considers that it would be prudent to eliminate any risk of misinterpretation for the future. An explanation or description of what is to be understood by the term 'technical/narrative report' would furthermore reduce the need for potential applicants to ask the Commission for clarifications regarding that term.

28. The Commission could therefore consider the possibility of including in its future Calls for Proposals and/or Guides for Applicants an explanation or description of what is to be understood by a 'technical/narrative report'. The Ombudsman will therefore make a further remark below.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There was no maladministration in the Commission's activities.

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

Further remark

The Commission could consider the possibility of including in its future Calls for Proposals and/or Guides for Applicants an explanation or description of what is to be understood by a 'technical/narrative report'.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 30 May 2013

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[1] http://ec.europa.eu/justice/newsroom/files/frc_call_for_proposals-_action_grants_2011-2012_en.pdf

[2] http://ec.europa.eu/justice/newsroom/files/guide_for_applicants_action_grants_2011-2012_en.pdf

[3] Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ 2002 L 248, p. 1. This Regulation has been repealed by Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002, OJ 2012 L 298, p. 1.

[4] Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ 2002 L 357, p. 1.