ANNUAL REPORT 1996 (97/C 272/01)

Strasbourg, 21 April 1997

Mr JOSÉ MARÍA GIL-ROBLES GIL-DELGADO

President

European Parliament

97-113, rue Belliard

B - 1047 Brussels

Mr President,

In accordance with Article 138e (1) of the Treaty establishing the European Community and Article 3 (8) of the Decision of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, I hereby present my report for the year 1996.

JACOB SÖDERMAN

Ombudsman of the European Union

CONTENT

Page

1. FOREWORD BY THE EUROPEAN OMBUDSMAN . 4

2. COMPLAINTS TO THE OMBUDSMAN . 6

2.1. The legal basis of the Ombudsman's work . 6

2.2. How complaints are dealt with . 6

2.2.1. The mandate of the European Ombudsman . 7

2.2.2. Admissibility of complaints . 7

2.2.3. Grounds for inquiries . 8

2.3. Analysis of the complaints . 8

2.4. Advice to contact other agencies . 8

2.5. Decisions following an inquiry by the Ombudsman . 8

3. DECISIONS FOLLOWING AN INQUIRY . 10

3.1. Cases where no maladministration was found . 10

3.1.1. The European Parliament . 10

Termination of a contract . 10

3.1.2. The European Commission . 10

Nuclear tests in French Polynesia . 10

Method of assessment of LIEN Phare-Tacis applications . 11

Access to information held by the Commission . 13

Rights of persons on reserve list . 13

Access to information on Commission programmes . 14

Access to a Commission document . 14

Confidentiality of information about nuclear materials . 15

Measures taken after abolition of customs operations at borders . 16

Overcrowding at the Brussels II European School . 17

Recruitment from a reserve list after a competition . 18

Nationality as a condition for a grant . 18

3.2. Cases dropped by the complainant . 19

3.2.1. The European Commission and the European Parliament . 19

Incorrect information from the Commission and Parliament . 19

3.3. Cases settled by the institution . 20

3.3.1. The European Parliament . 20

Access to records of attendance of MEPs . 20

3.3.2. The Council . 20

Access to documents held by the Council . 20

3.3.3. The European Commission . 22

Financial compensation for preparatory work . 22

Delay in answering requests for information . 22

Failure to pay a promised subsidy . 23

Award of a blue flag, mark of cleanliness, to a beach . 23

Page

Late settlement of an invoice . 24

The directive on non-life insurance . 24

Reimbursement of travel and subsistence expenses . 25

Access to information on the outcome of a competition . 25

Delayed reply from the Commission . 26

3.3.4. The Euratom Institute . 26

Failure to fulfill a contractual obligation . 26

3.4. Cases closed with a critical remark by the Ombudsman . 26

3.4.1. The European Parliament . 26

Open competition: loss of candidate's letter . 26

3.4.2. The Council . 27

Exclusion from a competition . 27

3.4.3. Exclusion from a competition . 28

European Commission's handling of a complaint about lack of an environmental assessment: Newbury Bypass . 28

European Commission's handling of a complaint about an environmental assessment: M40 motorway . 32

Failure to answer a request for extension of a time limit . 36

3.5. Cases of maladministration leading to draft recommendations from the Ombudsman . 39

3.5.1. The European Environment Agency . 39

Disclosure of the reasons for rejecting a candidate . 39

3.6. Own initiative inquiries by the Ombudsman . 40

Public access to documents held by the Community institutions . 40

4. RELATIONS WITH THE EUROPEAN PARLIAMENT AND THE EUROPEAN COMMISSION . 44

4.1. The European Parliament and the Committee on petitions . 44

4.2. The European Commission . 45

5. RELATIONS WITH THE NATIONAL OMBUDSMEN AND SIMILAR BODIES . 46

6. INFORMATION STRATEGY . 47

6.1. Publications . 47

6.2. Conferences and meetings . 47

6.3. Media relations . 49

APPENDICES . 50

A. Statistics . 50

B. Conferences and visits . 55

C. Speeches by the Ombudsman . 57

D. Articles and interviews . 58

E. Expenditure . 62

F. Staff of the Ombudsman . 63

1. FOREWORD BY THE EUROPEAN OMBUDSMAN

The Annual Report for 1996 is the first to cover a full year of activity by the European Ombudsman. In the Annual Report for 1995, I carefully explained the functions and the working procedures of the Office, as well as the administrative tasks involved in establishing it. I also explained how important it is for the Ombudsman's work to be carried out in public and the kind of rules that would be followed in this respect. This Annual Report concentrates more on reporting the work of the Ombudsman's office in dealing with cases.

DEALING WITH COMPLAINTS AND INITIATIVES

Considerable administrative work was necessary to complete the process of establishing the office, especially recruitment of new staff and building up working procedures and technical information services. At the same time, it was possible to start to deal more intensively with complaints. During 1996, the Ombudsman's office handled 1 041 cases.

Of these, 842 were new complaints received in 1996. Most were sent by private citizens. Only 86 originated from companies and associations. There were 29 complaints transmitted by Members of the European Parliament and 10 petitions were transferred from the Committee on Petitions, with the consent of the petitioner, to be dealt with as complaints Three own initiative inquiries were launched during the year.

Inquiries were initiated in 210 cases, including the three own initiatives. Inquiries were completed in 102 cases. The completed inquiries resulted in 82 findings of 'no maladministration`. Two complainants withdrew their complaints. In 12 cases, the matter was settled by the institution in a way satisfactory to the complainant. This was usually done by the European Commission and shows a positive attitude towards citizens and the work of the Ombudsman. Partly as a result, there were no cases in which a friendly solution was reached as a result of the Ombudsman's activity.

There were 34 findings of maladministration during the year. In relation to 32 of them, the cases concerned were closed with a critical remark to the institution or body concerned. This means that draft recommendations were not considered necessary in the circumstances of the case. One complaint and one of the own initiatives resulted in draft recommendations to the institutions or bodies in question.

The outcome of the complaints during 1996 reflects the fact that the European Ombudsman's office was still in its initial period. As a result of the procedures established in the Statute of the Ombudsman and explained in last year's Annual Report, nearly six months have to be allowed for formal hearings, gathering of information and translation. The first full year's report therefore reflects results achieved primarily in the second half of the year. This was when it first really became possible to solve cases. Clearly the outcome of the complaints will be much more favourable to the complainants in the future.

Opportunities to look for friendly solutions with Community institutions involved in complaints and to follow the work of the European Parliament and its Committee on Petitions will be much greater in 1997. This is because the Parliament, in dealing with the Ombudsman's budget for 1997, made it possible to open a small antenna in Brussels for these purposes.

INFORMING EUROPEAN CITIZENS

During the year, the examination of admissibility was completed in 921 cases. In 323 of these (35 %), the complaint came within the mandate of the European Ombudsman. In 598 cases (65 %) the complaint was outside the mandate.

All Ombudsmen receive complaints that are outside their mandate. In the case of the European Ombudsman, the number of such complaints appears to be slowly declining, although it remains relatively high.

I have tackled this problem by informing the European citizens more clearly about the existence and mandate of the European Ombudsman. I have also visited the Member States for this purpose. These efforts are presented in the Annual Report.

As well as regular provision of information to the media, there has been close co-operation with the European Parliament's information offices, the European Commission's representations and the offices of National Ombudsmen and similar bodies in the Member States. This cooperation has aimed to distribute accurate information and target it to citizens, companies and associations that really need to know of the possibility to complain about instances of maladministration in the activities of Community institutions and bodies. This information campaign will continue during 1997, concentrating particularly on the regional Ombudsmen and similar bodies, which have a great significance in many Member States.

Furthermore, in 243 of the inadmissible cases the complainants were advised to address a competent body. Most frequently, this was a national Ombudsman or similar body (130 cases). In 47 cases, either the complainant was advised to petition the Parliament or the complaint was directly transferred, with the consent of the complainant, to be treated as a petition.

Many of the inadmissible complaints raised issues of Community law. I have therefore initiated a flexible cooperation, that may develop into an active network in the future, with bodies at the European and national level that deal with complaints related to Community law. A seminar was arranged in Strasbourg on 12 and 13 September 1996. The European Parliament, the Council and the Commission took part, as well as the national Ombudsmen and similar bodies (usually committees on petitions). A special invitation was sent to the Committee on Petitions of the European Parliament, which was represented at the meeting.

It was generally agreed at the meeting that the cooperation among the bodies involved should be established on an informal and flexible basis and on equal terms. The cooperation would consist of exchanging information, views and advice on Community law matters with the purpose of dealing with citizens' requests and complaints in a more effective way.

It was also decided to set up a network of liaison officers and this was completed in 1996. For the following year, the creation of a liaison officers' newsletter and the organisation of a seminar primarily for the liaison officers to deepen their knowledge of Community law matters have been planned. This cooperation could be of great importance in the task of making Community law a living reality at all levels of the European Union.

I would like to thank all the Community institutions and bodies for the constructive and helpful attitude they have shown during the year in their dealings with the European Ombudsman's office. I would also like to thank the national Ombudsmen and national committees on petitions for the spirit of cooperation they have shown in our common activities. Finally, I would like to express my gratitude to the Members and officials of the European Parliament for the guidance and assistance I have been given in the establishment of this new institution.

The cooperative and positive atmosphere in which I have been working during the year shows, in my view, that there is a genuine commitment among the parties involved towards a more human and social Europe for its citizens.

JACOB SÖDERMAN

2. COMPLAINTS TO THE OMBUDSMAN

The most important task of the European Ombudsman is to deal with maladministration in the activities of Community institutions and bodies. Possible instances of mal-administration come to the attention of the Ombudsman mainly through complaints made by European citizens. The Ombudsman also has the possibility to conduct inquiries on his own initiative.

Any European citizen, or any non-citizen living in a Member State, can make a complaint to the Ombudsman. Businesses, associations or other bodies with a registered office in the Union may also complain. Complaints may be made to the Ombudsman either directly, or through a Member of the European Parliament.

If the complainant so requests, his or her complaint is treated confidentially. As noted in the Ombudsman's annual report for 1995 and the report of the Committee on Petitions concerning the Ombudsman's report, complaints to the Ombudsman are dealt with in a public way unless the complainant requests confidentiality. It is important that the Ombudsman should act in as open and transparent a way as possible, both so that European citizens can follow and understand his work and to set a good example to others.

During 1996, the Ombudsman dealt with 1 041 cases. 842 of these were new complaints received in 1996. 717 of these were sent directly by individual citizens, 46 came from associations and 40 from companies. 29 complaints were transmitted by Members of the European Parliament and 10 petitions to the European Parliament were transferred to the Ombudsman by the Parliament's Committee on Petitions to be dealt with as complaints. 196 cases were brought forward from the year 1995. The Ombudsman also began three own-initiative inquiries. (See Annex A, Statistics, p. 50)

2.1 THE LEGAL BASIS OF THE OMBUDSMAN'S WORK

The Ombudsman's work is carried out in accordance with Article 138e of the Treaty establishing the European Community and the Statute of the Ombudsman (1). Article 14 of the Statute provides for the Ombudsman to adopt implementing provisions. In view of the limited experience available in the operation of the European Ombudsman's office, implementing provisions were adopted during 1996 on an indicative and provisional basis.

The provisions, adopted on 4 September 1996, deal with the internal operation of the Ombudsman's office. However, in order that they should form a document that will be understandable by and useful to citizens, they also include certain material relating to other institutions and bodies that is already contained in the Statute of the Ombudsman.

The Ombudsman informed the European Parliament's Committee on Petitions and Committee on the Rules of Procedure of his adoption of implementing provisions on an indicative and provisional basis. He will adopt formal and durable implementing provisions during the course of 1997.

As noted in the Ombudsman's Annual Report for 1995 and in the corresponding Report of the Committee on Petitions, there is an agreement between the Committee and the Ombudsman concerning the mutual transfer of complaints and petitions in appropriate cases. During 1996, 10 petitions were transferred to the Ombudsman, with the consent of the petitioner, to be dealt with as complaints. Five complaints were transferred to the Committee on Petitions, with the consent of the complainant, to be dealt with as petitions. Additionally, there were 42 cases in which the Ombudsman advised a complainant to petition the European Parliament.

In view of the agreement and its satisfactory operation in practice, the Ombudsman has not considered it necessary to draw up a proposal as foreseen by Rule 1 61 § 1 of the Rules of Procedure of the European Parliament. If it is felt, however, that there is a need for the Parliament to adopt provisions for its own procedures in relation to Article 37 and 8 of the Statute of the Ombudsman, the Ombudsman is willing to consider making a proposal for this purpose.

2.2 HOW COMPLAINTS ARE DEALT WITH

All complaints sent to the Ombudsman are registered and acknowledged. The letter of acknowledgement informs the complainant of the procedure for considering his or her complaint and includes the name and telephone number of the Legal Officer who is dealing with it. The next step is to examine whether the complaint is within the mandate of the Ombudsman.

2.2.1 THE MANDATE OF THE EUROPEAN OMBUDSMAN

The mandate of the Ombudsman, established by Article 138e of the EC Treaty, empowers him to receive complaints from any citizen of the Union or any natural or legal person residing or having his registered office in a Member State, concerning instances of maladministration in the activities of Community institutions and bodies with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. A complaint is therefore outside the mandate if

1) the complainant is not a person entitled to make a complaint;

2) it is not against a Community institution or body;

3) it is against the Court of Justice or the Court of First Instance acting in their judicial role; or

4) it does not concern a possible instance of maladministration.

Who is entitled to complain?

A citizen of Colombia complained to the Ombudsman against the German authorities, whom he alleged were infringing his human rights by keeping him in prison rather than expelling him to Colombia. The Ombudsman considered that the complainant was a person authorized by the Treaty to make a complaint because he was physically present in the territory of the Union. However, the complaint was outside the mandate because it was not against a Community institution or body. The Ombudsman did not, therefore, open an inquiry into the complaint.

(Complaint 972/24.10.96/FMO/DE/DT)

Examples of complaints that did not concern possible maladministration

A Member of the European Parliament complained to the Ombudsman alleging poor administration by the Committee on Petitions. He claimed that there were considerable delays by the Committee in the treatment of the petitions, discrimination against Dutch speaking citizens and scheduling of the meetings of the Committee to clash with meetings of other committees of the Parliament.

In his decision, the Ombudsman recalled that the right of every citizen of the Union to address a petition to the European Parliament has its legal basis in Articles 8d and 138d of the Treaty and has therefore a 'constitutional` value. As a consequence, the method of treatment of petitions is of utmost importance. Grave and persistent difficulties in dealing with petitions could infringe citizens' rights to have them examined in a reasonably efficient manner. It is the responsibility of the European Parliament itself, however, to organize its services in a way that enables it to carry out its institutional functions. The allegations raised political issues rather than a question of maladministration that could fall within the mandate of the Ombudsman. The Ombudsman did not, therefore, open an inquiry on the matter.

(Complaint 420/9.2.96/PLMP/B)

In another case, a Spanish complainant criticized a decision allegedly made by the European Commission, to prohibit Mrs Ritt BJERREGAARD, the Commissioner with responsibility for the environment, from publishing a book in the form of a diary about her experiences during her first six months at the Commission.

According to a press release issued by Mrs BJERREGAARD, the withdrawal of the book from publication was the result of her personal decision. There was therefore no administrative act that could be the subject of complaint to the Ombudsman. The Ombudsman could not, therefore, investigate the case.

(Complaint 266/29.11.95/MJA/ES)

2.2.2 ADMISSIBILITY OF COMPLAINTS

A complaint that is within the mandate of the Ombudsman must meet further criteria of admissibility before the Ombudsman can open an inquiry. The criteria as set out in the Statute of the Ombudsman are that:

1) the author and the object of the complaint must be identified (Art. 2.3 of the Statute)

2) the complaint must be made within two years of the date on which the facts on which it is based came to the attention of the complainant (Art. 2.4)

3) the complaint must have been preceded by appropriate administrative approaches to the institution or body concerned (Art. 2.4)

4) in the case of complaints concerning work relationships between the institutions and bodies and their officials and servants, the possibilities for submission of internal administrative requests and complaints must have been exhausted before lodging the complaint (Art. 2.8)

5) the Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling (Art. 1.3).

An example of inadmissibility

An Austrian complained to the Ombudsman that a competition organized by the European Commission for administrators of Austrian nationality had not been properly conducted. He alleged, amongst other things, that the written examinations had not been assessed by members of the selection board but by external assessors coming from the Austrian Foreign Ministry and that the anonymity of the applicants had not been respected.

The complainant had already brought his case before the Court of First Instance. Since the legal proceedings involved the same parties and the same facts as the complaint to the Ombudsman, Article 13 of the Statute applied and the Ombudsman could not deal with the allegations.

(Complaint 216/8.11.95/MH/A)

2.2.3 GROUNDS FOR INQUIRIES

The Ombudsman can deal with complaints that are within his mandate and which meet the criteria of admissibility. Article 138e of the EC Treaty provides for him to 'conduct inquiries for which he finds grounds`. In some cases, there may not be sufficient grounds for the Ombudsman to begin an inquiry, even though the complaint is technically admissible. Where a complaint has already been dealt with as a petition by the Committee on Petitions of the European Parliament the Ombudsman normally considers that there are no grounds for him to open an inquiry, unless new evidence is presented.

An example of a complaint that provided no grounds for an inquiry

A complaint was made to the European Ombudsman concerning the co-operative development Unit of FAS, funded by the European Social Fund. The complainant alleged that an application for a grant from FAS had not received fair consideration. However, the complainant did not provide any evidence to support the allegation. The Ombudsman therefore decided that there were not sufficient grounds to open an inquiry.

(Complaint 582/12.5.96/MG/IRL)

2.3 ANALYSIS OF THE COMPLAINTS

Of the 842 new complaints registered in 1996, 17 % originated from the UK, 14 % from Germany, 11 % from Spain, 11 % from France and 10 % from Italy. A full analysis of the geographical origin of complaints is provided in Annex A, Statistics, p. 50.

During 1996, the process of examining complaints to see if they are within the mandate, meet the criteria of admissibility and provide grounds to open an inquiry was completed in 921 cases. 35 % of the complaints examined appeared to be within the mandate of the Ombudsman. Of these, 254 met the criteria of admissibility, but 47 did not appear to provide grounds for an inquiry. Inquiries were therefore begun in 207 cases.

Most of the complaints that led to an inquiry were against the European Commission (81 %). As noted in the Annual Report for 1995, the Commission is the main Community organ that makes decisions having a direct impact on citizens. It is normal, therefore, that it should be the principal object of citizens' complaints. There were 19 complaints against the European Parliament and four complaints against the Council of the European Union.

The main types of maladministration alleged were failure to ensure fulfilment of obligations, that is failure by the European Commission to carry out its role as 'guardian of the Treaties` vis-à-vis the member states (83 cases), unsatisfactory procedures or failure to respect rights of defence (30 cases), lack of transparency (30 cases), unfairness or abuse of power (16 cases), malfunction or incompetence (18 cases), avoidable delay and discrimination (both 15 cases).

2.4 ADVICE TO CONTACT OTHER AGENCIES

If a complaint is outside the mandate or inadmissible, the Ombudsman tries to advise the complainant to go to another agency which could deal with the complaint. During 1996 such advice was given in 243 cases, most of which involved a Community law issue. In 130 cases the complainant was advised to take the complaint to a national or regional Ombudsmen or similar body. 42 complainants were advised to petition the European Parliament and, additionally, five complaints were transferred to the Committee on Petitions, with the consent of the complainant, to be dealt with as petitions. In 43 cases the advice was to contact the European Commission; this figure includes some cases in which a complaint against the Commission was declared inadmissible because appropriate administrative approaches had not been made to the Commission.

2.5 DECISIONS FOLLOWING AN INQUIRY BY THE OMBUDSMAN

When the Ombudsman decides to start an inquiry into a complaint, the first step is to send the complaint and any annexes to the Community institution or body concerned for a first opinion. When the first opinion is received, it is sent to the complainant for observations.

In some cases, the institution or body itself takes steps to settle the case to the satisfaction of the complainant. If the first opinion and observations show this to be so, the case is then closed as 'settled by the institution`. In some other cases, the complainant decides to drop the complaint and the file is closed for this reason.

If the complaint is neither settled by the institution nor dropped by the complainant, the Ombudsman continues his inquiries. If the inquiries reveal no instance of maladministration, the complainant and the institution or body are informed accordingly and the case is closed.

If the Ombudsman's inquiries reveal an instance of maladministration, he seeks a friendly solution to eliminate it and satisfy the complainant. If a friendly solution is not possible, or if the search for a friendly solution is unsuccessful, the Ombudsman either closes the file with a critical remark to the institution or body concerned, or makes a formal finding of maladministration with draft recommendations.

A critical remark is considered appropriate for cases where the instance of maladministration appears to have no general implications and no follow-up action by the Ombudsman seems necessary.

In cases where follow-up action by the Ombudsman does appear necessary (that is, more serious cases of maladministration, or cases that have general implications), the Ombudsman makes a decision with draft recommendations to the institution or body concerned. In accordance with Article 3 (6) of the Statute of the Ombudsman, the institution or body must send a detailed opinion within three months. The detailed opinion could consist of acceptance of the Ombudsman's decision and a description of the measures taken to implement the recommendations.

In 1996 the Ombudsman began 210 inquiries, 207 in relation to complaints and three own-initiatives.

Twelve cases were settled by the institution or body itself. Two further cases were dropped by the complainant. In 82 cases, the Ombudsman's inquiries revealed no instance of maladministration.

A critical remark was addressed to the institution in 32 cases. Recommendations to the institutions and bodies concerned were made in two cases, for both of which the three-month time-limit for a detailed opinion from the institution or body concerned expires in 1997. (See Annex A, Statistics, p. 50)

3. DECISIONS FOLLOWING AN INQUIRY

3.1 CASES WHERE NO MALADMINISTRATION WAS FOUND

3.1.1 THE EUROPEAN PARLIAMENT

TERMINATION OF A CONTRACT

Decision on complaint 11/3.1.95/DK/UK-EF-en against the European Parliament

The complaint

Mrs K. addressed a letter to the European Ombudsman on 5 December 1994 to complain that the European Parliament in Luxembourg had terminated her contract without notice because she had refused to sign inaccurate minutes of a meeting.

The inquiry

Once the first European Ombudsman had been elected, inquiries began. On 22 February 1996, the Ombudsman received comments on the complaint from the European Parliament. These were copied to the complainant on 8 March 1996 and she replied with observations on 12 March.

The decision

1) Findings on matters of law and possible scope of maladministration

1.1 The European Ombudsman did not accept the claim that there was a contract of employment between the complainant and the European Parliament. It is uncontested that the complainant had a contract with a company called T.C.S. Ltd., which in turn had a contract with the European Parliament. This contract appears to have been the legal basis of the work relationship between the complainant and the European Parliament.

1.2 The absence of a contract of employment is not decisive of the question of maladministration. The treatment received by an individual working in the Parliament in the circumstances of the complainant could amount to maladministration.

2) Findings of fact

2.1 It was clear from the complaint and supporting documents, and from the inquiries that were conducted, that the working relationship between the complainant and the person who was the principal subject of her complaint, Mr B., had deteriorated before the events that eventually gave rise to the complaint. There was no evidence that this deterioration of the working relationship was the result of, or was accompanied by, maladministration.

2.2 The facts of the incident relating to the minutes were contested. There was no doubt about when and where various meetings took place and who was present, but there were differences of fact and interpretation between the various accounts, concerning what took place at those meetings and its significance. The Ombudsman found no evidence to suggest that this incident was caused by, or was in itself, an act of maladministration. It seemed unlikely that further inquiries could allow the Ombudsman to resolve the disputed issues in favour of the complainant.

In view of the above findings on matters of law and fact, the Ombudsman deci ded that no further inquiries were justified and closed the case.

3.1.2 THE EUROPEAN COMMISSION

NUCLEAR TESTS IN FRENCH POLYNESIA

Decision on complaints 34/21.7.95/PMK/EN, 148/28.9.95/BL/ES-DE, 215/07.11.95/FJRC/ES, 242/20.11.95/DS/UK-EN, 243/20.11.95/JF/UK-EN, 244/20.11.95/RSS/UK-EN, 246/22.11.95/JML/UK-EN, 247/22.11.95/HW/UK-EN, 248/22.11.95/DT/UK-EN, 250/22.11.95/GMA/UK-EN, 251/22.11.95/MG/UK-EN, 285/14.12.HNDG/PO-PO, 294/3.1.96/AB/UK-EN, 296/3.1.96/PS/UK-EN, 297/3.1.96/FDN/UK-EN, 299/12.1.96/APW/UK-EN, 301/13.12.95/PB/UK-EN, 323/4.1.96/JM/UK-EN, 326/8.1.96/WMC/UK-EN, 329/8.1.96/CG/UK-EN, 341/8.1.96/JB/UK-EN, 342/8.1.96/RN/UK-EN, 343/8.1.96/CRJ/UK-EN, 344/8.1.96/MD/UK-EN, 345/13.12.95/PM/UK-EN, 351/11.1.96/PLT/UK-EN, 352/10.1.96/DP/UK-EN, 353/10.1.96/RW/UK-EN, 368/16.1.96/MO/UK-EN, 369/16.1.96/DH/UJ-EN, 370/16.1.96/RB/UK-EN, 375/18.1.96/LF/UK-EN, 379/26.1.96/PE/UK-EN, 380/25.1.96/AS/UK-EN, 386/22.1.96/AH/UK-EN, 399/31.1.96/J& J/UK-EN, 410/7.2.96/EHW/UK-EN, 440/20.2.96/AW/UK-EN against the European Commission

The complaints

During the autumn of 1995 and the first months of 1996, the Ombudsman received a relatively large amount of complaints related to the nuclear tests that the French government announced in June 1995 it would start in French Polynesia. The complaints in substance put forward that the Commission had been passive in this respect.

The inquiry

In its first opinion on this matter the Commission drew the Ombudsman's attention to the fact that a number of individuals had brought a case before the Court of First Instance concerning the same subject-matter. It therefore gave no opinion on the merits of the complaints.

In order to be able to assess properly whether the Ombudsman under Articles 1.3 and 2.7 of the Statute should terminate his consideration of the complaints because of identity between the Court proceedings and the complaints, the Ombudsman requested the Commission to transmit to him a copy of the proceedings before the Court. The Commission did not forward the requested documentation and in the meantime, the applicants before the Court withdrew their action. Subsequently, the Commission presented comments on the merits of the complaints. The Commission stated in substance:

'All the complaints but one consider that the Commission has not correctly enforced Community law as to the nuclear testing in French Polynesia. Although most complaints do not specify which legal provisions have been breached, it may be considered that they all denounce the failure, from their point of view, of the European Commission to apply Article 34 of the Euratom Treaty to the current series of nuclear tests carried out by France.

It should firstly be made clear that, in spite of what is stated in some complaints, the opinion which the Commission is called upon to give at the request of a Member State under Article 34 of the Euratom Treaty bears not upon the advisability of carrying out a particularly dangerous experiment but upon the additional health and safety measures that the Member State concerned must take.

Although France had not made any submission under Article 34 of the Euratom Treaty concerning the new series of tests started in 1995, the Commission has, since their announcement in June 1995, sought to ensure that the provisions of the Treaty were fully respected.

With this aim it gathered information on the issue from different sources and assessed the information received as well as that already at hand. A list of the main documents is appended to this communication. The Commission would like to draw the attention to the report produced by the Institute for Transuranium Elements in Karlsruhe on 19 October 1995 on the consequences of the partial or complete release of the radioactivity in the water of the explosion cavities from the underground nuclear tests in Mururoa and Fangataufa. The report concluded that, under the assumption of a complete release of the radioactivity contained in the water of the cavities formed by the underground explosions, the annual limits of ingestion for drinking water would still be respected.

To confirm that data made available to the Commission by France on environment radioactivity levels were reliable, a verification mission under Article 35 of the Euratom Treaty was carried out from 18 to 29 September 1995 in French Polynesia in order to verify the operation and efficiency of the facilities monitoring the level of radioactivity in the air, water and soil within the region. The verification activities outwith military establishments were generally satisfactory and gave rise to no major observations with regard to the reliable operation and the efficiency of the facilities and the adequacy of the monitoring programmes.

The Commission debated this matter on several occasions in September and October 1995 and at its meeting of 23 October 1995 it concluded that the specific conditions under which the last tests in French Polynesia were taking place led to the conclusion that these tests did not give rise to a perceptible risk of significant exposure of workers or of the population to ionising radiation and that, consequently, the provisions of Article 34 did not apply.`

Annexed to the comments of the Commission there was a list of the 25 main documents on which the Commission based its conclusions.

The comments were transmitted to the complainants who mostly chose not to comment on the Commission's position.

The decision

The Ombudsman found that there was no justification for the allegation that the Commission had been passive in the matter. Furthermore, he stated that he did not find on the basis of the elements put forward by the complainants that the Commission had exercised its powers wrongly or incompletely. Thus, as he had not found any instance of maladministration in the action of the Commission, the Ombudsman decided to close the cases.

METHOD OF ASSESSMENT OF LIEN PHARE-TACIS APPLICATIONS

Decision on complaint 52/27.7.95/JL/B against the European Commission

The complaint

Mr L. wrote to the Ombudsman concerning the rejection by the European Commission of projects he had submitted for funding through the LIEN Phare-Tacis 1994 programme of assistance to states of Central and Eastern Europe and the former USSR. The letter informing him of the rejection stated that the Commission is not obliged to justify its decisions. Mr L. said that, in fact, he received brief commentaries on the rejections on a standard form information sheet. He considered that this information was insufficient to enable weaknesses in the application to be addressed with a view to resubmission.

The complainant asked whether the administration possesses a standard assessment method for use in evaluating LIEN project applications and, if so why the results of the application of that method are not communicated to applicants.

The inquiry

Inquiries revealed that the process of selecting projects under the LIEN Phare-Tacis 1994 programme involved three stages:

1) screening and evaluation of proposals by a team of experts provided by the European Volunteer Centre/East European Partnership (CEV/EEP), a specialized company established in Brussels;

2) consideration of the recommendations by an Advisory Group of specialists drawn from various Directorates General of the Commission;

3) final selection by the Commission, acting upon the proposals from the Advisory Group. In 1994, 53 projects were accepted out of a total of 590 applications.

In its reply to the Ombudsman's requests for comments, the Commission said that an evaluation grid with detailed criteria and weightings is published in the documentation folder about LIEN. The reply also stated that the Advisory Group 'also takes considerations such as a fair geographical spread into account`.

The Commission claimed that it was impossible in practice to write a detailed individual analysis for each rejected proposal. The letter informing unsuccessful applicants therefore uses a standard format summarily stating the reasons in general and expressly inviting unsuccessful applicants to contact CEV/EEP for further explanations. According to the Commission, CEV/EEP does not transmit the evaluators' reports to the applicants, but habitually makes these accessible to the applicants concerned and discusses the findings with them. The Commission claimed that Mr L. had not availed himself of the opportunity to receive from CEV/EEP further details about the rejection of his project.

Following analysis of the Commission's comments and the complainant's observations, the Ombudsman made further inquiries of the Commission. In response, the Commission stated that the qualitative evaluation provided by the group of experts applies only to stage 1 of the selection process. The evaluation divides the proposals into two main categories: those with a score higher than 50 % and those with a score below 50 %. This percentage is the outcome of the weighting breakdown published in the documentation folder. According to the Commission, however, when the unsuccessful applicant meets with representatives of CEV/EEP to discuss the shortcomings of the project, the comments made during the Advisory Group meeting, as well as any additional considerations by the Commission are shared, in addition to relevant points from the evaluators' reports. The objective of these meetings is to assist the applicant in finding the strengths and weaknesses of the project, so that a future application may be more successful: the further explanations thus refer to the whole selection process.

The decision

1) The giving of reasons to unsuccessful applicants

1.1 In its replies to the Ombudsman, the Commission did not argue that it has no obligation to give reasons to unsuccessful applicants under the LIEN Phare-Tacis programme. On the contrary, the Commission emphasised that it seeks to

- ensure the transparency of the selection procedure; and

- assist applicants in finding the strengths and weaknesses of an unsuccessful project so that a future application may be more successful.

1.2 The questions at issue therefore concerned whether the reasons given were adequate to achieve these purposes. These questions had to be addressed in the context of the decision-making process to which they relate.

2) Summary reasons with further information available on request

2.1 It appeared that the Commission explained the rejection of proposals submitted under the LIEN Phare-Tacis programme by giving summary reasons in a standard form information sheet and made further information available on request.

2.2 It appeared from the Commission's replies that, for budgetary reasons, only 10 % of the projects submitted were financed and that projects with a high evaluation might not be financed. The process of selecting projects therefore appeared to have characteristics of a tendering procedure for a contract.

2.3 In this context, it is appropriate to refer by analogy to the provisions of the public services directive concerning the giving of reasons to unsuccessful tenderers. Article 12 of the directive (2) does not require reasons to be given automatically, but the contracting authority must inform any eliminated candidate or tenderer who so requests of the reasons for rejection of his application or tender.

2.4 The procedure adopted for the LIEN Phare-Tacis programme of giving summary reasons on a standard form information sheet, followed by more detailed information on request did not therefore appear inappropriate.

3) The transparency of the selection procedure

3.1 According to the Commission's replies, the further information made available on request covered all three stages of the selection procedure.

3.2 The published documentation folder about the LIEN programme contained a section headed 'who takes the decision to subvention the projects and who evaluates them?` This section of the documentation folder said that 'a group of experts receives, examines and evaluates applications and makes recommendations to the Commission which makes the final selection of projects.` This appears to be a fair, although abbreviated, description of the process.

3.3 The immediately following section of the documentation folder was headed 'what criteria are used for the evaluation of applications?` and explains the percentage weightings. According to the Commission's replies these were applied only at the first stage of the selection procedure.

3.4 Considered as a whole, the documentation folder contained useful information to assist applicants to formulate proposals and to enable them and others to understand how the Commission is putting the relevant Community policies into effect. However, the information given would have been more complete and potential confusion avoided if it had been made clear that the criteria and percentage weightings applied to the evaluation by experts and that the Commission's decision could include additional factors. The transparency of the procedure would also have been improved if the Commission had specified the additional factors it would take into account.

Conclusion

The Ombudsman's inquiries into this complaint did not reveal any instance of maladministration by the Commission. The transparency of the selection procedure could be improved by making clear that the Commission's decision may include factors other than the criteria and percentage weightings. It would be further improved if the Commission were to specify what those factors are. The Ombudsman closed the case.

ACCESS TO INFORMATION HELD BY THE COMMISSION

Decision on complaints 69/16.08.95/WDR/PD/D-de and 70/16.08.95/SF/PD-D-de against the European Commission

The complaints

Mr M. and Mr W., German nationals, lodged complaints about a Commission official. They put forward that the official, whom they had approached in order to get a statement on a topic on which they were making a TV-report, had refused to give information and had not answered subsequent faxes.

As the two complaints concerned the same facts and they were lodged together, the Ombudsman decided to treat them jointly.

The inquiry

In its comments on the complaints, the Commission stated that the official concerned had not been in a position to give an interview to journalists, as Commission policy 'is to channel all contacts with journalists through the Spokesman's Service. It is, thus, the responsibility of this service to give interviews to journalists or, if appropriate, to decide that a competent official from another service should give such an interview. It would appear in this case that there may have been a misunderstanding in this respect and the Commission will take the necessary steps to avoid such misunderstandings in the future.` The Commission further stated that the public may have access to Commission documents in accordance with the Commission Decision of 8 February 1994 on public access to Commission documents.

The decision

As it appeared from the Commission's comments that it recognized that there had been a misunderstanding in this case and that it had taken measures in order to avoid such misunderstandings in the future, the Ombudsman considered that there were no grounds to proceed further with the complaints. Thus, he closed the case.

RIGHTS OF PERSONS ON RESERVE LIST

Decision on complaint 71/16.08.95/JD/B against the European Commission

The complaint

On 1 August 1995, Mr D. lodged a complaint with the European Ombudsman, concerning the reserve list of competition COM/A/730 in which he had participated successfully in 1991. He complained that the reserve list of competition COM/A/730 had not been extended beyond 31 December 1994, that the Commission had hired national experts while the reserve list was still full and that he had received no reply to his letter when he had brought this matter to the attention of the Commission.

The inquiry

On 13 December 1995, the Ombudsman forwarded the complaint to the European Commission asking the Commission to comment on it. The Commission gave its first opinion on 27 March 1996. It was forwarded to the complainant on 30 April 1996.

According to the Commission, the decision not to extend the reserve list beyond 31 December 1994 was based on the number of recruitments from the list (only 2 candidates had remained) and the type of profile which was considered necessary in the future.

Concerning the secondment of national experts, the Commission found that this serves a specific purpose. It is not solely to allow the Commission to take advantage of the expertise and knowledge of such national civil servants but also to reach a better mutual understanding between the European and national administrations. Therefore it is completely understandable that national experts are not chosen from the successful candidates in a competition. Finally, the Commission apologized for the failure to reply to the letter of 30 January 1995, and stated that it will make sure that such mistakes in comparable cases are not made in the future.

The complainant gave his observations on the findings of the Commission on 13 September 1996. He considered that when assessing the policy of the Commission with regard to the secondment of national experts, it should be taken into consideration that the national expert in question had been recruited as temporary staff following this contract as a national expert.

The decision

The rules regarding the secondment of national experts have been laid down - by the Commission - in a Decision of 26 July 1988. The procedure for the secondment of national experts is of another nature than the procedure for the filling of posts reserved for the successful candidates of a competition. The same is applicable to the temporary staff posts. The policy of the Commission not to give preference to candidates on the reserve list when seeking to fill such posts does therefore not appear questionable.

Article 5 of Annex III of the Staff Regulations, contains the obligation to include more candidates on the reserve list than the number of recruitments expected. The Commission can thus be understood in its reasoning that a successful candidate of a competition does not have the right to be recruited.

The Commission has the right to extend the validity of a specific reserve list. When the profile of the posts expected to be available in the future is different from the profile for which the competition was held, a renewal of the validity of the list can seem unjustified. In the case of the reserve list for competition COM/A/730, the Commission's service particularly concerned by the reserve list had been consulted before the decision on the extension of the validity of the list was taken.

From this point of view, the decision not to extend the validity of the reserve list for competition COM/A/730 beyond 31 December 1994, even though it still contained two successful candidates, does not seem to go contrary to the general principles of good administrative behaviour.

In view of these findings and taking into account that the Commission had apologized for the failure to reply to the letter of 30 January 1995, the Ombudsman reached the conclusion that there was no instance of maladministration and closed the case.

ACCESS TO INFORMATION ON COMMISSION PROGRAMMES

Decision on complaint 104/1.9.95/IDS/B/PD against the European Commission

The complaint

Mr B., of French nationality, lodged a complaint with the European Ombudsman against the European Commission. He stated that for almost one year he had been trying to obtain a list by country of the institutions and associations which had received support from the European Social Fund under the training programmes for the disabled between 1981 and 1994.

The inquiry

In its comments on the complaint the Commission said that for the period 1989-1994 the information requested by the complainant was not directly available at the Commission and that meeting his request would be an expensive operation, involving searches by the Member States. As regards the earlier period, the Commission said it did have details which could serve as a basis for a search which might provide the information requested; it was prepared to carry out the search if the complainant confirmed his interest in that period.

The decision

The Ombudsman considered that the reasons given by the Commission regarding the period 1989-1994 were justified and noted the demonstration of its good will as regards the earlier period. On this basis he decided further inquiries were unnecessary and closed the case.

ACCESS TO A COMMISSION DOCUMENT

Decision on complaint 180/13.10.95/JPB/PD/B-dk against the European Commission

The complaint

Mr B., a Danish national, lodged a complaint about a Commission refusal to allow him access to documents. It appeared that in May 1995 he had asked to see a report on the promotion of growth which the Commission had drawn up. In September 1995, he was informed that the Commission refused his request on the grounds that it did not want to make the report public shortly before a conference on the subject it had scheduled for November 1995. On 11 September 1995, the complainant asked the Commission to reverse on its decision. As he did not receive any reply from the Commission, he lodged a complaint alleging that the Commission's attitude conflicted with the rules on access to documents laid down in its decision of 8 February 1994 on public access to Commission documents. This decision lays down the grounds for refusing access and a procedure for processing applications for access. The complainant alleged that the non-compliance with the deadline for processing such requests, provided for in the decision, should automatically entail the disclosure of the document.

The inquiry

In its first comments on the complaint, the Commission stated that it considered the complaint to be unfounded since it had, in the meantime, sent the report to the complainant. However, the complainant maintained his complaint.

In its second comments, the Commission acknowledged that it had not adhered to the deadlines for processing applications laid down in its decision of 8 February 1994 and stated that in the future it would make every effort to meet the deadlines. As regards the reason given for the original refusal of the application, the Commission acknowledged that it was invalid in pursuance of the decision.

The decision

The Ombudsman remarked that Article 1 of the Commission decision of 8 February 1994 on public access to Commission documents lays down that the joint Commission and Council code of conduct of 31 December 1993 on public access to documents is applicable to the Commission. Consequently, access to documents may be refused in order to protect the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations), the individual and privacy, commercial and industrial secrecy, the Community's financial interests, classified information and the confidentiality of Commission proceedings.

Article 2 of the decision lays down the procedure for obtaining access to documents: the Commission must inform the applicant within one month whether the application is granted or not. Where access cannot be granted, the applicant must be informed that he has one month in which to complain about the refusal. Failure to reply to an application for access within one month constitutes refusal of access and failure to reply within one month to an application for review also constitutes refusal. Against this background, the Ombudsman concluded that there were no grounds for regarding a failure to reply as acceptance of an application for access.

As to the grounds given for refusing the application for access, the Ombudsman remarked that they were not included in the list of considerations which in the Commission's decision of 8 February 1994 can justify refusing an application. He therefore regarded the refusal as unwarranted and incorrect.

However, the Ombudsman noted that the complainant had received the report he had applied for access to, as the Secretary-General of the Commission had rectified the mistake made. In view of this and the fact that the Secretary-General, when replying to the Ombudsman's requests for information, had openly acknowledged the mistake on the Commission's behalf and that the Commission would in the future make every effort to prevent any recurrence of such mistakes, the Ombudsman found no grounds for further consideration of the complaint. He therefore closed the case.

CONFIDENTIALITY OF INFORMATION ABOUT NUCLEAR MATERIALS

Decision on complaint 186/16.10.95/DL/UK/KT against the European Commission

The complaint

In October 1995 Mr L. wrote to the European Ombudsman to complain about the answers given by the European Commission to two written parliamentary questions relating to nuclear materials.

The complainant could see no justification for the Commission to invoke the secrecy clause of Article 194 of the Euratom Treaty in its answers to the questions as a reason for not divulging information on depleted uranium stocks or on supply contracts for nuclear installations. He asked the Ombudsman to press the Commission to act in a spirit of openness and to release the information requested.

The inquiry

The Ombudsman asked for the Commission's comments on the complaint.

The comments of the Commission

As to the first question, the Commission quoted Article 194 of the Euratom Treaty as a reason not to disclose information on stocks of depleted uranium at certain sites in the United Kingdom. Once a Member State had classified certain information as subject to a security system, the Commission considered itself to be bound by that classification and to be required to keep such information secret.

As to the second question relating to commercial information about a supply contract for a nuclear installation in the Community, the Commission also referred to Article 194 of the Euratom Treaty and Regulations made thereunder as the reason for not divulging such commercial information. This information had been communicated to the Commission by the operators in accordance with Chapter VI of the Euratom Treaty at the time of negotiation, but remained the property of those operators.

The complainant's observations on the Commission's comments

According to the observations of the complainant, the Commission should reconsider its insistence on secrecy because both Article 194 of the Euratom Treaty and the Regulations made thereunder were decided upon in two completely different political contexts. The Cold War and nuclear espionage were real threats and self-evidently the situation had changed since.

The decision

Since the Commission referred in both cases to Article 194, the issue of the secrecy clause was dealt with at the same time for both parliamentary questions.

Article 194 provides that:

'The members of the institutions of the Community (. . .) who (. . .) are called upon to acquire (. . .) information (. . .) which are subject to a security system in accordance with provisions laid down by a Member State (. . .) shall be required (. . .) to keep them secret from any unauthorized person and from the general public.`

It seems clear from the letter and the spirit of Article 194 that its provisions are binding for the institutions of the European Community, which are required to keep secret any information which is subject to a security system in accordance with provisions laid down by a Member State.

In the present case, the Commission confirmed its replies to Question E-1805/95 asked by Mr Alex Smith and Question E-1518/95 asked by Mrs Ahern that the Member State concerned had classified the information requested as 'subject to a security system' and that it was therefore not at liberty to release it.

As far as Mrs Ahern's question (E-1518/95) is concerned, it follows two other questions by Mrs Breyer on a supply contract for the Garchin nuclear reactor. The Commission invoked a second argument relating to the confidentiality of commercial information. It quoted a number of provisions, all of which emphasize the protection of commercial information considering that, as the information requested was the property of two economic operators acting in their commercial capacity, the Commission was not able to divulge such commercial information. It suggested that the Honourable Member request the information directly from the operators concerned.

In its comments to the Ombudsman of 21 May 1996, the Commission explained that:

In accordance with Chapter VI of the Euratom Treaty (. . .) the operators would communicate to the Agency commercial information, including the contract itself for conclusion. This information is and remains the property of those operators. The services of the Commission are not able to divulge such commercial information which is the property of the operators concerned.'

In order to determine the lawfulness of this argument, one has to examine the conditions under which the public has access to documents held by the Commission. The issue is settled by Commission Decision of 8 February 1994 on public access to Commission documents.

This decision establishes the principle of wide access of the public to Commission documents, while taking into account certain derogations relating to the protection of public interest or privacy.

It provides in the annexed Code of Conduct concerning public access to Commission and Council documents that:

'The institutions will refuse access to any document where disclosure could undermine:

- . . .

- the protection of commercial and industrial secrecy

- . . .`

It appears therefore that the Commission's attitude, by answering that the information requested cannot be divulged because of the protection of commercial secrecy and by advising the Honourable Members to request such information directly from the operator concerned, is in accordance with its Decision of 8 February 1994.

In view of these findings, the European Ombudsman found no instance of maladministration in the Commission's attitude in this case. He therefore decided that no further inquiries were justified and closed the case.

MEASURES TAKEN AFTER ABOLITION OF CUSTOMS OPERATIONS AT BORDERS

Decision on complaint 189/18.10.95/SP/GR/KT against the European Commission

The complaint

In October 1995 Mr P. lodged a complaint against the European Commission with the European Ombudsman. After the abolition of borders in the European Union in January 1993, he had been obliged to close his customs clearing office and had suffered big financial losses. He considered that he should receive financial compensation. Moreover, the European Commission had not answered his letter of 5 November 1993.

The inquiry

The Ombudsman asked for the Commission's comments on the complaint.

In its reply, the European Commission considered that it was not for the Community to meet the responsibilities of the Member States and of the profession concerned, owing to the principle of subsidiarity.

However, given the exceptional nature of the situation resulting from the type of activities in question, the Commission considered it justified to propose Community accompanying measures.

Under these measures, with regard to Greece, the country of origin of the complainant, an amount of over three million ECUs had been allocated to 39 projects selected by the Greek authorities after a call for tender. The deadline for submission of dossiers had been 31 March 1993 and, according to the information available to the Commission, Mr P. had not submitted a project to these authorities (Ministry of the National Economy).

The comments of the European Commission were sent to Mr P. for observations. In his reply, the complainant repeated his view that he should receive financial compensation. He also claimed that he had submitted a dossier to the Greek authorities.

The decision

It appeared from the complaint, the supporting documents, and the inquiries that had been conducted that the Commission proposed Community accompanying measures to facilitate the redeployment of the undertakings concerned after the abolition of customs operations at intra-Community borders on 1 January 1993. Among them, specific measures are contained in Regulation (EEC) N 3904/92 on measures to adapt the profession of customs agent to the internal market.

As far as Greece is concerned, an amount of over three million ECUs intended to assist the undertakings most affected by the abolition of customs borders was allocated to the Greek authorities (Ministry of the National Economy). This amount was allocated by the Greek authorities to 39 projects involving 1 874 people selected following a call for projects published in the national press. The deadline for submission of dossiers was 31 March 1993, pursuant to Article 6 of the above-mentioned Regulation.

Mr P. denied that he had not submitted a project and produced a document showing that he had applied to the Ministry of the National Economy. However, this document was dated 11 March 1994, that is to say about one year after the deadline for application. He was therefore not likely to have his project approved by the Ministry of the National Economy.

As to the Commission's failure to answer his letter of November 1993, it was of course regrettable, and the Commission's attention has been drawn to the fact that such failures should not happen again.

In view of these findings, the European Ombudsman decided that no further inquiries were justified and closed the case.

OVERCROWDING AT THE BRUSSELS II EUROPEAN SCHOOL

Decision on complaint 199/23.10.95/EP/B/KT against the European Commission

The complaint

Mr P. lodged a complaint in October 1995 regarding the problem of overcrowding at the Brussels II European School.

He drew attention to the fact that the classrooms were located in premises originally designed for another purpose, that the number of children per class was too high, that the sanitary facilities were inadequate, and that safety standards were not being met.

The inquiry

The European Ombudsman notified the European Commission of the complaint.

In the comments which it forwarded to the Ombudsman, the Commission described the legal and historical background to the establishment of the European schools and outlined its own powers and duties in respect of the running of the schools.

The Commission's comments were forwarded to the complainant, who had no observations to make.

The decision

The Convention defining the Statute of the European School, signed by the six founding Member States of the Community on 12 April 1957, forms the legal basis for the establishment of the European schools. The system laid down by the convention was based exclusively on intergovernmental cooperation. The European School was therefore a creation of the Member States, and the Member States alone, who were the only contracting parties to the convention and the only parties entitled to a seat on the School's Board of Governors, which had exclusive responsibility for all administrative, educational and financial matters.

Since then, without becoming a contracting party to the convention, the Community has become a member of the Board of Governors with the same rights as the Member States, and the system of intergovernmental cooperation has been subtly altered as a result of the Community's involvement.

The Board of Governors now comprises the Community Member States and the Commission, which has one vote. Budgetary and educational decisions are taken unanimously, while administrative decisions are taken by a two-thirds majority.

The Belgian Government is responsible for providing premises for the Brussels II school, and for the upkeep of those premises.

In its capacity as a Community institution and a member of the Board of Governors, the Commission has taken various steps to encourage the Belgian authorities to resolve the problems caused by overcrowding at the Brussels II school.

Given, therefore, its limited powers with regard to the running of the European schools and the approaches it had made to those responsible for such matters (the Belgian authorities) with a view to tackling the problem of overcrowding at the Brussels II European school, the European Ombudsman decided that the Commission could not be held responsible for any act of maladministration in this case, and closed the case.

RECRUITMENT FROM A RESERVE LIST AFTER A COMPETITION

Decision on complaint 225/13.11.95/JV/B/KT against the European Commission

Mr V., who had been placed on a reserve list following a European Commission competition, complained to the European Ombudsman that he had not been contacted by the Commission with a view to his recruitment. The Commission had launched a new competition in the same domain without first exhausting the reserve list of the previous competition.

The Ombudsman wrote to ask for the Commission's comments on the complaint.

In its reply, the Commission explained that being on a reserve list did not automatically oblige the institution to recruit the candidate. Inclusion on the list merely gave rise to the possibility of recruitment in accordance with staffing requirements. Furthermore, when new staffing requirements arose, the Commission was not obliged to wait for a reserve list to be exhausted before launching a new competition.

The Commission's comments were sent to the complainant, with an invitation to submit observations if he so wished. It was indicated to the complainant that, on the basis of the complaint and the comments, the Ombudsman would have to close the case if no observations were submitted.

The complainant did not submit any observations and the Ombudsman therefore decided to close the case.

NATIONALITY AS A CONDITION FOR A GRANT

Decision on complaint 258/27.11.95/HNDC/PO/PD-en against the European Commission

The complaint

Mrs N.d C., a Portuguese national, lodged a complaint to the European Ombudsman about the European Commission. She put forward that the Commission, Directorate General XII, had wrongly denied her a research grant.

The complainant had submitted in May 1995 an application for a grant under the Community Programme for Training and Mobility of Researchers, in answer to a Call for Proposals which had been published in the Official Journal on 17 January 1995. This Programme was adopted by the Council on 15 December 1994 and its aim was to enhance mobility of researchers. The Commission was responsible for the implementation of the Programme.

A condition for receiving a grant under the programme is that the researcher does not hold the nationality of the country where he intends to undertake the research for which the grant is given.

The complainant had both Portuguese and French nationalities and applied for a grant in order to undertake research at the 'Instituto de Biologia Experimental e Tecnologica` in Portugal. The complainant stated that before applying, she addressed the Commission by letter of 17 January 1995 in order to know how the Commission would apply the nationality condition to holders of more than one nationality in a situation like hers. She did not receive any answer to this request for information. By letter of 12 July 1995, the Commission replied to her application. It informed her that she was not eligible for the grant as she held the nationality of the country of the research institution.

The complainant addressed the Commission in August and September 1995 in order to make the Commission change the decision taken. She put forward that the Commission's application of the nationality condition to plurinationals was wrong. In its answers, the Commission apologized that it had not earlier provided more precise information about the application of the nationality condition to plurinationals; it stated that the application made was in conformity with the practice developed under previous programmes and that the Commission subsequently had adopted an explicit rule addressing the situation of plurinationals which endorsed the practice developed. The Commission thus maintained its decision.

In the complaint, the complainant said that she was never properly informed about the way the Commission would apply the nationality condition to plurinationals, as the Commission had never replied to her request for information and that there was no legal basis for the Commission's application. In any case, she considered the Commission's application to be unfair.

The inquiry

In its comments on the complaint, the Commission stated that it had no record in its files of any request for information previous to the lodging of the complainant's application in May 1995. The Commission recognized that it had not adopted a formal provision dealing with the problem of plurinationals until after the rejection of the complainant's application; anyhow, it stressed that this formal provision only stated what was already the practice and that it was lawful to apply the nationality condition to plurinationals to the effect that grants could not be given for research projects in any of the countries of which the plurinational holds the nationality. As to the fairness of this rule, the Commission stated that 'with regard to the possibility of access to the programme, plurinationality gives the person an additional opportunity to belong to the eligible countries. Contrarily, it limits the choice of host countries. However, it should be stressed that this limitation due to the nationality criterion does not affect only plurinational candidates. It could also be considered as "unfair" by a candidate, possessing only one nationality, who has never lived in his country of nationality and who will nevertheless not be supported to receive training in this country.`

The decision

The Ombudsman stated that principles of good administrative conduct demand that requests for information shall be replied to without undue delay. Anyhow, in the concrete case it had not been established that the Commission received the request as the complainant, according to her own statement, was no longer in possession of the postal receipt.

As to the allegation that the Commission's interpretation of the nationality condition as regards plurinationals was unlawful, the Ombudsman considered it established that at the moment the complainant's application was rejected, there was no written rule concerning the situation of plurinationals. However, the Ombudsman found that this did not imply that the Commission had to accept that plurinationals qualified under the nationality condition in the case where they held both the nationality of the research country and another nationality. The Commission had to take a stand on the question of plurinationals and the Ombudsman did not find that the stand taken infringed principles of law.

As to the allegation that the Commission's application of the nationality condition to plurinationals was unfair, the Ombudsman found that, in the present case, the allegation was unjustified. Actually, it appeared from the file that the complainant was born in Portugal, performed all her studies (1976-1987) in Portugal, that she specialized in Canada and France (1988-1994) and that she took up professional activities in Portugal thereafter.

Thus, the Ombudsman did not find an instance of maladministration in this case and therefore closed the case.

3.2 CASES DROPPED BY THE COMPLAINANT

3.2.1 THE EUROPEAN COMMISSION AND THE EUROPEAN PARLIAMENT

INCORRECT INFORMATION FROM THE COMMISSION AND PARLIAMENT

Decision on complaint 23/03.06.95/SL/PD/UK-en against the European Commission and the

Mrs L., an Italian national, lodged a complaint against the European Commission and the European Parliament. She put forward that the two institutions' offices in Rome had provided incorrect information to her about Community competitions.

In their comments on the complaint, the two institutions stated in substance that the staff in the two offices did not have any recollection of the complainant's visit to the offices; that the institutions were surprised that wrongful information had been supplied to her, as the contents of the information allegedly given ran contrary to the institutions' established recruitment policy, and that information offices had been reminded of their duties in this field.

The comments were forwarded to the complainant who informed the Ombudsman that she dropped the case.

Against this background the Ombudsman closed the case.

3.3 CASES SETTLED BY THE INSTITUTION

3.3.1 THE EUROPEAN PARLIAMENT

ACCESS TO RECORDS OF ATTENDANCE OF MEPS

Decision on complaint 26/13. 07. 1995/MAJQCS/FR/FR against the European Parliament

The complaint

Three journalists of French nationality submitted a complaint against the European Parliament. They stated that on 13 July 1995 they wished to consult the record of attendance of Members of the European Parliament, which is located outside the Chamber in which Parliament holds its part-sessions in Strasbourg (Members of Parliament are supposed to sign the list when they enter the Chamber), and the parliamentary ushers stopped them.

The complainants claim that the lists were in an area totally open to the public, with no physical barrier, and there was no notice banning the public from consulting the lists. They also maintained that the public had no idea within 'how many metres, decimetres or centimetres` they could approach the lists without infringing such a ban on public access to the lists.

The inquiry

The European Parliament's comments concerning the complaint were forwarded to the complainants, who then gave their observations.

The Ombudsman asked Parliament for further information. In the light of these elements, two officials from the Ombudsman's Office met with a representative of the European Parliament. Following this meeting the Ombudsman put forward a proposal to Parliament.

The comments by Parliament can be summarized as follows: the records of attendance are internal documents used among other things by Parliament's administration to determine the various allowances to which Members are entitled. The public has never had access to these lists but has always had access to the definitive lists which appear in the minutes of a sitting and are available the next day. The public has also always had access to the names of Members who have taken part in a roll-call vote, very often about half an hour after the vote. Finally, Parliament pointed out that the records of attendance concerned were formerly located within the Chamber. The only reason the lists are now outside the Chamber is that following the latest accessions of Member States to the Union there is no room for them inside the Chamber. Given these considerations, Parliament maintained the ban on access to the lists.

The decision

The Ombudsman first pointed out that, in the absence of general rules adopted by the Community legislator on public access to documents of the Community institutions, it was a matter for each Community institution to lay down rules in this connection by virtue of its power of internal organization.

Secondly, the Ombudsman noted that the information provided by the lists as regards the presence of a Member in the Chamber at any given moment was very limited, since Members are free to enter and leave the Chamber as they wish without having to sign the lists again.

On these grounds the Ombudsman found that, by virtue of its power of internal organization Parliament may refuse to allow public access to these lists, and that the lists were intended above all for administrative purposes.

However, if Parliament did not wish the public to consult these lists, the Ombudsman thought it inappropriate to place them in an area open to the public where it was virtually impossible to ensure such a ban was observed. For that reason the Ombudsman finally suggested that as long as the lists were outside the Chamber, public access should not be prevented and that, by means of a note drawn up for the purpose, the parliamentary ushers might provide information about the official lists and the roll-call votes to people who were particularly interested.

In response to this suggestion, Parliament stated that the Secretary-General had been asked to put the lists back inside the Chamber and, if that was impossible, a written note about means of obtaining information about the presence of Members would be offered to persons interested.

Given Parliament's above-mentioned power of internal organization and the measures taken, the Ombudsman decided to close the case.

3.3.2 THE COUNCIL

ACCESS TO DOCUMENTS HELD BY THE COUNCIL

Decision on complaint 45/26.7.95/JPB/PD/B-dk against the Council of the European Union

The complaint

Mr B., a Danish national, lodged a complaint against the Council. He requested that all information necessary to understand existing legislation should be made public and that, as a Member of the European Parliament, he needed to have knowledge of all legislation, including minutes. Enclosed with the complaint was a copy of a note from the Council's legal service criticizing the Council's practice as regards statements for inclusion in the minutes of Council meetings.

The inquiry

In its comment on the complaint, the Council put forward three elements:

Firstly, it argued that the complaint did not come within the Ombudsman's remit. The Council's argument was that the complaint did not show that the Council's actions constituted maladministration and that the note from its legal service did not constitute proof of maladministration. The Council also stated that the complainant had referred the matter to the Ombudsman in his capacity as a Member of the European Parliament and that the complaint's desire for knowledge of all existing legislation was the expression of a political wish.

Secondly, the Council argued that the complainant had not made the necessary administrative approaches to the Council before he lodged his complaint with the European Ombudsman.

Thirdly, the Council argued that on 2 October 1995 it had adopted a 'Code of Conduct on the publication of Council minutes and statements for inclusion in the minutes when the Council acts as a legislative authority, which shows that the Council has considerably changed its practice in this area. Since the adoption of the Code of Conduct, all statements for inclusion in the minutes of Council meetings in connection with the final adoption of legal acts within the meaning of the annex to the Council's rules of procedure have been made available to the public.`

The decision

As regards the Council's first argument, the Ombudsman pointed out that it is for the Ombudsman to decide whether a complaint is admissible. Community institutions and bodies are naturally welcome to make their views on the subject known to the Ombudsman.

When examining the admissibility of a complaint, it cannot be required that the complainant shall provide conclusive evidence of the maladministration complained of. In this context it has to be borne in mind that the Ombudsman's task is also to improve relations between Community institutions and European citizens; the office of Ombudsman was created in support of the Union's commitment to open, democratic and responsible administration. Requiring a citizen to provide evidence of maladministration when lodging a complaint would put an unreasonable burden on him and make it more difficult for him to have access to the Ombudsman. Nor does such a requirement seem to have any legal basis. It appears from the second paragraph of Article 138e (1) of the EC Treaty that the Ombudsman conducts enquiries into 'alleged facts` ('faits allégués` in French), not proven facts. Article 3 (1) of the Statute of the Ombudsman states that the Ombudsman may conduct enquiries into 'suspected maladministration` (cas éventuel de mauvaise administration' in French).

In the complaint, it was alleged that not all existing legislation was accessible. A note was attached as an integral part of the complaint. The note was extremely critical of the Council's practice as regards statements annexed to the minutes of Council meetings. The complaint thus clearly alleged that there had been maladministration.

The complainant's status as a Member of the European Parliament had no bearing on the matter. Article 8d of the EC Treaty states that 'every` citizen of the Union may apply to the Ombudsman. There is therefore nothing to exclude Members of the European Parliament from complaining to the Ombudsman. As regards the Council's argument that the request was 'political`, the Ombudsman remarked that in his view, the public accessibility of the legislation in force is a basic requirement of a democratic legal system. A complaint alleging that this was not the case should obviously be taken seriously irrespective of the political motives that according to the Council lay behind the complaint.

Therefore the Ombudsman did not consider the Council's first argument to be any reason for changing his original decision to consider the complaint.

As regards the Council's statement that before submitting the complaint the complainant did not make the 'appropriate administrative approaches` to the Council in accordance with Article 2 (4) of the Statute, the Ombudsman remarked that there seems to be a slight discrepancy between the different language versions of this provision. The Danish version quite rightly uses the term 'fornødne` and gives the impression that such administrative approaches are necessary. On the other hand, for instance the English, French, German, Spanish and Swedish versions use the terms 'appropriate`, 'appropriées`, 'geeigneten`, 'adecuadas` and 'lämpliga` respectively which seems to imply that suitable administrative approaches must be made. In view of the purpose of the provision, the correct interpretation seems to be that suitable administrative approaches must have been made. It is up to the Ombudsman to decide what in a specific case is suitable.

In this case, it appeared that statements for inclusion in the minutes of Council meetings had been regarded as obstacles to the publication of the minutes. This seemed moreover to be entirely confirmed by the fact that the Council subsequently considered it necessary to adopt a Code of Conduct on the publication of Council minutes and statements for inclusion in the minutes. Therefore, it had to be assumed that a prior administrative approach would have been rejected.

In these circumstances, the Ombudsman found no grounds for changing his original decision to consider the complaint admissible in view of the Council's second argument.

As regards the merits of the case, the Ombudsman noted that access to documents as a measure to promote transparency in the Union is highly valued by the institutions (see for instance Declaration No 17 annexed to the Maastricht Treaty on the right of access to information and the Council's Declaration of 22 January 1996 in connection with the Commission's legislative programme for 1996).

As mentioned above, the purpose of creating the office of Ombudsman was to emphasize the Union's commitment to transparency. It is therefore clear that transparency and the right of access to documents are matters of great concern to the Ombudsman. He found that by adopting the Code of 2 October 1995, the Council had taken the steps that must be deemed necessary to give access in future to the type of document requested in the complaint. The Ombudsman therefore found that there were no grounds for further consideration of the complaint and therefore closed the case.

3.3.3 THE EUROPEAN COMMISSION

FINANCIAL COMPENSATION FOR PREPARATORY WORK

Decision on complaint 5/09.11.94/FE/EF-en against the European Commission

The complaint

A legal office lodged a complaint against the European Commission in November 1994 on behalf of its client, an enterprise specialized in organizing conferences.

The Commission had asked in 1992 the enterprise to organize a conference. Shortly before the conference was to take place, the Commission cancelled it. The cancellation was apparently due to the failure of the competent officer within the Commission to obtain budget clearance for the conference, and it resulted in injury to the enterprise, including financial losses in the form of money and time already spent on the organization of the conference.

Subsequent correspondence and contacts with the Commission had not led to any reparation of the injury caused to the enterprise.

The inquiry

As the European Ombudsman did not take up his office until 27 September 1995, he was not able to give the complaint immediate attention. On 31 October 1995, he asked the Commission to submit to him its comments on the complaint.

By fax of 15 January 1996 and by letter of 17 January 1996, the Commission informed the Ombudsman that it had made in November 1995 an offer to the enterprise to pay financial compensation as a final settlement for all costs occurred. The offer had been accepted and thus the firm's claim had finally been settled.

The decision

As the subject-matter of the complaint had been solved in a mutually satisfactory way, the European Ombudsman closed the case. The firm thanked the Ombudsman for his investigation 'which spurred the Commission into negotiating seriously`.

DELAY IN ANSWERING REQUESTS FOR INFORMATION

Decision on complaint 22/3. 5. 1995/AP/DE against the European Commission

On 28 April 1995, Mr P. lodged a complaint with the European Ombudsman against the European Commission alleging that the Commission had not answered his letters of 12 October 1994 and 15 February 1995.

As the Ombudsman did not take up his duties until 27 September 1995, he was not able to give immediate attention to the complaint. He asked the European Commission to comment on the matter on 27 October 1995.

By letter of 26 January 1996, the Commission forwarded its comments on the complaint to the Ombudsman, admitting that the delay in replying to the complainant had been unusually long. The request for information the complainant had addressed to the Commission in Luxembourg in October 1994 and February 1995 had not been answered until 31 May 1995. The Commission informed the Ombudsman that Directorate General V of the Commission had since revised its procedure for replying to correspondence of this nature, with a view to avoiding such delays in future. A further letter of the complainant of 12 June 1995, addressed directly to the Commission in Brussels had received a reply by letter of 7 July 1995.

As the complainant had received an answer to his request and as the Ombudsman found satisfactory the revision the Commission had made to its procedure for correspondence, the Ombudsman decided that no further inquiries were justified and closed the case.

FAILURE TO PAY A PROMISED SUBSIDY

Decision on complaint 95/30.8.95/IMI/EF/NL-en against the European Commission

Mr Z. from a Dutch institute lodged a complaint with the Ombudsman on 23 August 1994 about alleged maladministration by the European Commission. According to the complaint, the Directorate General V had agreed by letter of 18 May 1994 to contribute a sum of 5 000 ECUs to a seminar 'European elections 1994` arranged by the institute but never paid this subsidy.

As the Ombudsman did not take up his duties until 27 September 1995, he was not able to give immediate attention to the complaint. On 20 November 1995, he sent the complaint to the European Commission for comments.

By letter of 12 January 1996, the complainant informed the Ombudsman that the dispute between the institute and the Commission had been settled and that the complaint was withdrawn.

The Ombudsman took note that the case had been solved in a mutually satisfactory way and closed the case.

AWARD OF A BLUE FLAG, A MARK OF CLEANLINESS, TO A BEACH

Decision on complaint 235/16.11.95/JMC-fr against the European Commission

The complaint

In November 1995 Mr C. lodged a complaint concerning the award of a blue flag, which is a mark of a beach's quality and cleanliness, to the beach at Armaçao de Pêra in the Algarve, Portugal, and the use of ERDF funds for the beach.

The complainant considered that the blue flag had been unjustly awarded, given the harmful effects which the beach had on the environment and health. He attached several photographs to his complaint, illustrating the deplorable condition of the approaches to the beach and the quantity of refuse which had built up there. He also questioned the use made by the Portuguese authorities of the Community funds allocated for the protection of the beach.

The inquiry

The European Ombudsman informed the European Commission that a blue flag had been awarded to the beach at Armaçao de Pêra and asked it to comment on the matter.

In its reply, the Commission pointed out that it was not directly responsible for the award of blue flags, which was coordinated by a non-governmental organization based in Denmark. Its only role was to provide information on one of the criteria used in the selection process. It had, nonetheless, asked the non-governmental organization to provide further information, and undertook to forward a report on its inquiry to the complainant.

The Commission stated that it had found no evidence of fraud in connection with the Community funds.

The Ombudsman forwarded these comments to Mr C., who expressed satisfaction with the action taken by the Ombudsman, given that a blue flag had not been awarded to the beach at Armaçao de Pêra for 1996, and withdrew his complaint. He also asked to be sent the inquiry report referred to above.

The Ombudsman also attached a copy of a letter from the Commissioner, Mrs Ritt BJERREGAARD, stating that, pursuant to Article 169 of the Treaty, the Commission had initiated proceedings against the Portuguese authorities for breach of the relevant Community legislation, in particular Directive 76/160/EEC (bathing waters).

The decision

The blue flag system is organized by a non-governmental organization based in Denmark, the Foundation for Environmental Education in Europe, which is also responsible for making awards. The Commission therefore has no say in the award of blue flags. It does, however, play a part in the process, since it provides information on one of the basic criteria for the award of a blue flag, namely the quality of bathing waters.

The Commission forwarded the complaint to the Foundation and asked the Foundation's national operator to provide information on the circumstances under which a blue flag had been awarded to the beach in question.

At the same time, the Commission initiated infringement proceedings against Portugal, pursuant to Article 169 of the Treaty, for alleged manipulation of the results of tests on water samples (breach of Directive 76/160/EEC on bathing waters).

No evidence of fraudulent use of Community funds by the Portuguese authorities emerged from the inquiries conducted by the Commission.

Therefore, in view of the fact that a blue flag had not been awarded to the beach at Armaçao de Pêra for 1996, and of the action which, within the limits of its powers, the Commission had taken vis-à-vis the authorities and organizations responsible, it was felt that a satisfactory response had been given to the legitimate questions raised by Mr C. in his complaint.

Following Mr C.'s decision to withdraw his complaint, the European Ombudsman decided not to conduct further enquiries and closed the case.

LATE SETTLEMENT OF AN INVOICE

Decision on complaint 236/17. 11. 1995/AKH/KT-en against the European Commission

A company which had entered a contract with the European Commission lodged a complaint in November 1995 concerning the late settlement of an invoice within the framework of the Tacis Danube Environmental Programme. The invoice had been sent to the Commission in February 1994 but was not settled until several months later, despite a contractual payment period of 30 days.

The European Ombudsman asked the Commission for its comments. In its reply, the Commission considered that the payment to the company had been made later than was reasonable and that interest should be paid.

The Commission's reply was sent to the complainant. The company was willing to accept an apology from the Commission, together with an offer to pay interest on the overdue amount.

The case was thus solved in a satisfactory manner for the complainant and the European Ombudsman decided to close the case.

THE DIRECTIVE ON NON-LIFE INSURANCE

Decision on complaints 256/23.11.95/EA//B-FR, 291/21.12.95/SA/B-FR and 311/4.1.96/CN/B-FR against the European Commission

The complaint

The complaints focus on the interpretation by the European Commission of Directive 92/49/EEC on non-life insurance.

In October 1995 an insurance company based in France notified its clients in Belgium (the complainants) of its decision to cease to provide insurance cover for persons resident abroad 'owing to the Community provisions on freedom to provide services`. This action had been prompted by the entry into force on 1 July 1994 of the third insurance directives and the legal requirements deriving therefrom. The complainants therefore wrote to the European Ombudsman about the Commission's interpretation of these Community directives, which they deemed to be the cause of the termination of their insurance policies.

The inquiry

The Ombudsman notified the Commission, which forwarded its comments on the matter.

The Commission first outlined the legal provisions governing the taking up and pursuit of the business of insurance which were laid down in the directives. It then explained the situation in some Member States prior to the entry into force of the directives and, lastly, set out the Commission's position on the complaints lodged.

The complainants had no observations to make on the Commission's comments, and simply thanked the Ombudsman for his efforts on their behalf.

The decision

Prior to the entry into force of the insurance directives some Member States, including Belgium, prohibited insurance companies based in another Member State from providing cover for risks on their territories if they were not established there. Companies failing to comply with this requirement could be penalized, inter alia by means of the invalidation of policies.

Under this system, the contract between the complainants and their company had no legal certainty if the insurer failed to meet this requirement.

The third insurance directives seek to put an end to this situation, which conflicts with the principle of freedom to provide services in the insurance field, by enabling any insurer based in a Member State to provide cover for risks in another Member State, without having to be established there.

This supposes, however, that the 'host` Member State is able to exert control over the activities of such insurers. Under the new system, therefore, insurers must meet various requirements. An insurer based in one Member State must, for example, comply with certain rules applying in the Member State in which it provides cover for risks, inter alia those governing taxation.

In the case in point, the complainants' insurer may have considered these requirements to be too much of a burden and decided to restrict their activities to France, thereby terminating policies covering risks in Belgium. This, however, would have been a commercial decision taken for strategic reasons, and cannot be seen as having any connection with the Community insurance directives, given that other insurers have chosen to operate within the new system.

Given the above, the European Ombudsman decided that no further inquiries were justified and closed the case.

REIMBURSEMENT OF TRAVEL AND SUBSISTENCE EXPENSES

Decision on complaint 450/20.2.96/JF/A/KT-en against the European Commission

The complaint

In July 1995, Mr F. travelled to Brussels to take the oral examination for a competition. The European Commission advised him to contact its travel agency, which made a special hotel rate arrangement for him. Moreover, his travel expenses from Brussels airport into town were reimbursed, as was the return fare.

In September 1995, he was invited to Brussels by the Commission for a medical examination and for interviews. As he had done in July, he contacted the Commission's travel agent, but was informed that the Commission had not authorized him to obtain special hotel rates. The cheapest hotel he could book was more expensive than the one in July.

As a result, the hotel expenses for the medical examination and for the interviews exceeded the final reimbursement made by the Commission. In addition, the candidate's travel expenses from Brussels airport into town and the metro expenses in Brussels were not reimbursed this time. When the complainant contacted the Commission to clarify the matter, its answer did not satisfy him.

The inquiry

The European Ombudsman wrote to ask for the Commission's comments on the complaint.

In its reply, the Commission explained that, as laid down in Article 8 of the 'Rules for the reimbursement of travel and subsistence expenses for persons outside the Community invited to attend a competition, interview or medical examination` (hereinafter referred to as 'the Rules`), subsistence expenses were reimbursed by means of a daily allowance meant as a flat-rate contribution towards (and not as full reimbursement of) the candidate's expenses.

As to the train ticket from the airport to Brussels, the Rules make no provision for reimbursement; in practice, however, this fare was reimbursed at the candidate's request.

The special hot