The European Ombudsman - Annual Report 1999
Date: 2000-09-01
Institutions: European Ombudsman
Subjects: European Ombudsman, activity report

11.9.2000

EN

Official Journal of the European Communities

C 260/1

I

(Information)

THE EUROPEAN OMBUDSMAN

ANNUAL REPORT 1999

(2000/C 260/01)

Strasbourg, April 2000

MRS NICOLE FONTAINE

President
European Parliament
rue Wiertz
B-1047Bruxelles

Mrs President,

In accordance with Article 195 (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 1999.

Jacob SO¨ DERMAN
Ombudsman of the European Union

C 260/2

EN

Official Journal of the European Communities

11.9.2000

TABLE OF CONTENTS

Page

1. FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

2. COMPLAINTS TO THE OMBUDSMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

2.1. The legal basis of the Ombudsman’s work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

2.2. The mandate of the European Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.2.1.

2.2.2.

‘Maladministration’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Code of good administrative behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

11

12

2.3. Admissibility of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

2.4. Grounds for inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

2.5. Analysis of the complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

2.6. Advice to contact other agencies and transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

2.7. The Ombudsman’s powers of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.7.1.

2.7.2.

The hearing of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Inspection of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

15

15

2.8. Decisions following an inquiry by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

3. DECISIONS FOLLOWING AN INQUIRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

3.1. Cases where no maladministration was found . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1.1.

3.1.2.

3.1.3.

3.1.4.

The European Parliament
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transparency in the proceedings of a competition organised by a political group of the
European Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application for a ‘Robert Schuman’ scholarship: alleged failure to reply by the Parliament .

Time limit for submitting medical certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The European Parliament and the European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Access to registers of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Council of the European Union and the European Commission . . . . . . . . . . . . . . . . . . . . . . . . . .
Centre for the development of industry: responsibilities of Commission . . . . . . . . . . . . . . . . .

The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Adequate statement of reasons for decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Handling of a complaint against the UK authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Refusal to allow a candidate in an open competition a copy of the marked test . . . . . . . . . . .

Argentinean dentistry diplomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Handling of a complaint under Article 86 of the EC Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disclosure of assessment report

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Delay in processing complaint on State aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Anti-competitive subvention of pig production . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regional differences in ability to meet a tender criterion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

17

17

21

22

23

23

25

25

27

27

29

32

35

37

38

40

42

44

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Official Journal of the European Communities

C 260/3

Decision to close the file on an Article 169 (new Article 226) complaint

. . . . . . . . . . . . . . . .

Confidentiality in tender procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Cancellation of a tender by the Greek Government (Article 226 EC)

. . . . . . . . . . . . . . . . . . . .

Thermie grant to a windfarm project: alleged failure to investigate the project . . . . . . . . . . . .

Alleged failure to start an infringement procedure against
the UK for violation of
Directives 77/187/EEC and 76/207/EEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Audit of contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Penalties under the Community milk market regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Commission’s handling of a competition case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1.5.

The European Central Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Language rules for Community institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.2. Cases closed for other reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.2.1.

The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TACIS programme: refusal to pay an invoice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Refusal of admission to competition COM/A/12/98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3. Cases settled by the institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.1.

The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Complaint for infringement of Community law: alleged failure of the Commission to
acknowledge the complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reconsideration by the Commission of funding for project to assist victims of violence in
the Basque region . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reimbursement of a grant under the Socrates programme . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Failure of the Commission to issue an addendum to a PHARE contract . . . . . . . . . . . . . . . . . .

Reimbursement of travel costs for candidates in annulled tests . . . . . . . . . . . . . . . . . . . . . . . . .

Payment of complainant’s invoices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Failure to reply — inter-regional projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Alleged failure to pay by the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Delays in the reimbursement of travel expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.4. Friendly solutions achieved by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.4.1.

The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Full payment and interest for regional coordinator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.5. Cases closed with a critical remark by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.5.1.

The European Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reasons for failure in a competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.5.2.

The Council of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Failure to reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.5.3.

The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commission’s responsibility to examine claims of irregularities in EC funded projects . . . . .

Failure to give reasons for closing the file on a complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Alleged failure of the European Commission to properly monitor the disbursement of
Community funds. Public access to Commission documents . . . . . . . . . . . . . . . . . . . . . . . . . . .

45

49

50

53

57

59

61

63

67

67

68

68

68

69

69

69

69

70

72

73

73

74

75

76

77

78

78

78

80

80

80

82

82

83

83

86

89

C 260/4

EN

Official Journal of the European Communities

11.9.2000

Refusal of access to documents related to court proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commission procedure for investigating alleged infringement (Article 226 EC) . . . . . . . . . . .

Unanswered letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

93

96

99

Cancellation of a call for proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Failure to provide information to a TACIS consultant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Administrative and financial handling of a project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Taxation of TACIS aid to Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Termination of anti-dumping procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Postponement of oral examination in exceptional circumstances . . . . . . . . . . . . . . . . . . . . . . .

119

Undue delay in replying to correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Open competition organised by the European Commission: the selection board refused to
give access to candidate’s marked papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

3.6. Draft recommendations by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

126

3.6.1. All institutions, bodies and decentralised agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Decision containing draft recommendations to adopt a Code of good administrative
behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

3.6.2.

3.6.3.

The European Parliament
Undue delay and failure to reply to applicants in a design competition . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
130

The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
133
Failure to reinstate official after unpaid leave on personal grounds . . . . . . . . . . . . . . . . . . . . . .

3.7. Draft recommendations accepted by the institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

3.7.1.

3.7.2.

The Council of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
137
An up-to-date list of measures adopted in the field of justice and home affairs . . . . . . . . . . .

The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
A register of Commission documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

3.8. Queries from national ombudsmen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Repayment of milk super levy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

141

141

Tax base for the calculation of VAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Interpretation of Commission Regulation 1251/70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

143

3.9. Own initiative inquiry by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

145

Own-initiative inquiry on public access to documents held by the Community Plant Variety
Office, the European Agency for Safety and Health at Work, Europol and the European
Central Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

4. RELATIONS WITH OTHER INSTITUTIONS OF THE EUROPEAN UNION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

4.1. The European Parliament and the Committee on Petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

154

4.2. The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

4.3. The Council of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

155

4.4. The Court of Justice of the European Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

4.5. The Economic and Social Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

156

4.6. The Committee of the Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

156

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5. RELATIONS WITH NATIONAL OMBUDSMEN AND SIMILAR BODIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

5.1. The liaison network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

5.2. Cooperation in dealing with complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

157

5.3. Cooperation with regional ombudsmen and similar bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

5.4. Cooperation with national ombudsmen in the accession States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

6. PUBLIC RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

6.1. Highlights of the year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

159

6.2. Conferences and meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

160

6.3. Other events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

6.4. Media relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

7. ANNEXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

A.

B.

C.

D.

Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

The Ombudsman’s budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

The election of the European Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

C 260/6

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1.

FOREWORD

ALL FOR RESULTS

The work of an ombudsman’s office can be described in many ways. It should raise the quality of the
public administration from the point of view of the citizen, it should enhance the relations between the
citizens and the administration by its activities, it should provide standards of good administration and it
should act to undo cases of maladministration and much more. The most essential task remains to
intervene to assist citizens so that they are treated fairly and obtain promptly what they have the right to
expect from the administration.

During the year, the European Ombudsman’s activities have, to my mind, reached the level that one has
the right to expect of a body which is just over four years old and consists of 25 persons working in a
fairly complex legal and administrative environment.

In 1999, we received 1 577 complaints (compared to 1 372 in 1998), opened 206 inquiries (171 in
1998) into possible maladministration and launched five own initiatives (compared to only one in 1998).
Of the complaints where an inquiry took place, 27 were closed with a critical remark to the institution or
body concerned, 62 were settled by the institution in the complainant’s favour, in one case a friendly
solution was found and ten draft recommendations were issued to undo maladministration (compared to
only one in 1998). Of the draft recommendations, 2 were promptly accepted and one led to a Special
Report to the European Parliament. The institution concerned later accepted the recommendation which
was included in the Special Report. In 107 cases (96 in 1998) no maladministration was found, but the
complainant received a full explanation of why the contested decision had been made.

Furthermore we have managed, with only a few exceptions, to acknowledge receipt of complaints within
one week and to decide on their admissibility within one month. The target of closing cases after an
inquiry within one year has not yet been reached. About 40 cases more than one year old are still open,
but the back-log is slowly diminishing. There is always more to be done to develop the activities in order
to obtain better results for the citizens, but it is obvious that the year 1999 was the best so far. It is to be
underlined that the institutions and bodies themselves have settled 62 cases (51 in 1998). In fact, this
means that they found a friendly solution of their own when the complaint was drawn to their attention
by the Ombudsman. This is very good for the complainants as it saves precious time. It also shows a
good attitude within the administration to undo its errors, which must be mentioned as a sign of a
profoundly positive attitude to the European citizens.

DISPUTES

The constructive cooperation which we have had with the Community institutions and bodies has made
our work for the European citizens more effective. In most cases the institutions and bodies have
responded in time and with a comprehensive explanation to the allegations put forward by the
complainants. This has made it easier to discover the essential aspects of the case and what has really
happened. However, some problems remain as regards the European Commission, whose activities are
the major focus for the Ombudsman’s inquiries: 163 out of 206.

There was an attempt by the services of the Commission to raise once again the idea that questions
concerning the Commission’s interpretation of Community law can be dealt with only by the Court of
Justice and not the European Ombudsman. This dispute is explained in more detail in the Annual report
itself. Let me only say, hoping this is the last time I have to underline it, that it is never good administration
not to follow the law; that is rules or principles, that are binding upon a Community institution or body.

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In the two European countries where the national ombudsman cannot deal with cases for which a judicial
remedy is possible, this limitation is expressively stated in the law itself. This is not the case for the
European Ombudsman’s mandate which was laid down by the Maastricht Treaty.

Furthermore if the Ombudsman’s activity can prevent unnecessary litigation and so alleviate the burden
of the Courts’ present heavy workload this seems only positive for all parties. It should also be noted that,
because of the limitations which Community law imposes on access to the courts, in many cases where
unlawful actions by Community institutions and bodies are alleged the Ombudsman seems to be the
citizen’s only remedy. It goes without saying that the Ombudsman’s decisions are always guided by the
case-law of the Community Courts.

Another time-consuming dispute with the Commission concerned the Ombudsman’s right to inspect
documents. This subject was dealt with in more detail in the Annual Report for 1998. Although a
satisfactory result was once again reached in 1999 after the usual misunderstandings and bizarre
arguments, I have presented an initiative to the European Parliament to amend the part of the Statute of
the Ombudsman that produces these disputes. It should be underlined that for all ombudsman offices it
is important to have, as OLAF has been recently given, unlimited access to the documents needed for the
investigation of a complaint. Otherwise the citizens do not trust the Ombudsman’s investigations. At the
same time, it is quite clear that the Ombudsman must respect the confidentiality of documents where it
is correctly imposed and not reveal their contents publicly. I do hope that the European Parliament will
deal with this initiative vigorously and that the other institutions will accept my arguments in this matter.

OPENNESS

During the year no major progress was made in the field of transparency or openness. The Commission
was expected to produce a draft regulation on public access to documents under Article 255 EC, but no
text was published during the year. Only a few leaks of its provisions became public, which usually met
harsh criticism from organisations of journalists and other activists in this field. For the Ombudsman, this
is an important issue as lack of information or wrong information is still the most frequent allegation in
the complaints (23 %).

The reason which is often given for maintaining traditional confidentiality — efficiency — seems rather
paradoxical. Was it really efficient for the Santer Commission to collapse in March, leaving the Union’s
activities badly hampered for half a year in the absence of a lead from an active Commission? An
important reason for the collapse was what had been done behind the curtain of confidentiality.
Furthermore, experience shows that open administration, which is practised in many Member States,
seems to be an effective tool against fraud and corruption, while a closed and confidential handling of
public affairs appears to provide opportunities for fraud and corruption. I find it disturbing that those
who oppose the increasing demands for more openness overlook this important point.

Whatever their arguments and reasons may be, the fact remains that their stubborn opposition to the
necessary opening up of the Union administration in a modern way obscures the details of European
Union funding, one of areas in which the Union is most criticised. Prevention is better than anything else,
even the best police force can afterwards only address a small part of the undesirable activities which may
occur in this field.

WHAT IS GOOD ADMINISTRATION?

In the Annual report for 1997 we presented a definition of the term maladministration which the
European Parliament unanimously agreed to and which is now generally accepted. But to go further we
presented a proposal for a Code of good administrative behaviour in July 1999. The Commission had
been working on its own version of such a Code since 1997, but when the Commission collapsed in
March the matter appeared to lapse and it was time for the Ombudsman’s office to take up the challenge

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of publishing a Code of good administrative behaviour. The Ombudsman’s Code is not concerned with
the relations between management and civil servants. It deals with relations between citizens and civil
servants. Its focus is the service which European citizens have the right to expect from the European civil
service. To promote the idea we opened an own initiative inquiry into the matter.

The general attitude among the Community institutions and bodies was positive. Some told us that they
had already adopted a Code of this type. One, the European Agency for the Evaluation of Medicinal
Products in London, adopted our recommended draft with some positive changes, while others started to
draft own versions. The Commission announced that they had given a first reading to their own version
prior to negotiations with their staff and invited the Ombudsman to comment on it. At first sight, this
version seemed fairly vague from the point of view of the European citizens.

A Code of good administrative behaviour of high quality would give the European citizens a positive
message of a service-minded administration. That would be good for the Union’s reputation in the
Member States as a whole. It would also give the European citizens clear information as to what kind of
service they have the right to expect and advise the officials what they should manage to deliver. The
Code does not contain anything which could not be achieved with adequate commitment from
management and training for staff. The own-initiative inquiry is still open, but in my view the large
spectrum of responses already received indicates that it might be better to consider a legal initiative to
create a European Administrative Law on good administrative behaviour, following the example of many
Member States. That means that either the Commission should take the lead by itself adopting a good
Code as a first step, or the European Parliament should consider an initiative in this matter in due time.
Adopting such a Code of good administrative behaviour would demonstrate to European citizens that
the Union has a modern and service-minded administration ready to work for the benefit of citizens and
that it should not be made the scapegoat for all the problems in Europe.

MORE COOPERATION

When something does not work in the public sector the traditional attitude is to ask for more money or
more powers, not to try to achieve results by more dialogue and more cooperation.

The proportion of complaints outside the mandate remains about 70 %. Many of them are allegations
that Community law has not been correctly applied in a Member State. During 1999, we advised
314 complainants (259 in 1998) to address the National or regional ombudsman’ s office or to petition
the respective Parliament. Similar information was given to many other citizens who contacted the office
in writing, by telephone or e-mail to ask for advice. As the Amsterdam Treaty is progressively
implemented, especially the provisions concerning an area of Justice, freedom and security, more and
more Community law will apply at all levels in the Member States and there will be even greater need for
swift and effective judicial and extra-judicial remedies. For our part, we have accepted responsibility for
informing the national and regional ombudsmen offices and the respective committees on petitions about
Community law. We have also established a network to provide them with support and advice, making
maximum use of the internet for this purpose. The meeting of the national ombudsmen and similar
bodies in September in Paris and with the regional ombudsmen and committees on petitions in Florence
in October showed that all these institutions and bodies are ready to further activate themselves in this
field.

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This means that a constructive cooperation in the true spirit of subsidiarity and equality might be the best
way forward to assist the European citizens so that they can obtain what they have a right to under
Community law wherever and on whatever level the dispute occurs throughout the European Union.

Thus Community law would be a living reality for all European citizens.

Jacob Söderman
Strasbourg, 31 December 1999

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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, with the exception of the Court of
Justice and Court of First Instance acting in their judicial role.
Possible instances of maladministration 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.

2.1. THE LEGAL BASIS OF THE OMBUDSMAN’S WORK

the

Statute of

The Ombudsman’s work is carried out in accordance with
Article 195 of the Treaty establishing the European Com-
and the
munity,
implementing provisions adopted by the Ombudsman under
the implementing
Article 14 of
languages,
provisions,
is published on the
Ombudsman’s Website
(http://www.euro-ombudsman.eu.int).
The text is also available from the Ombudsman’s office.

the Statute. The text of

the Ombudsman (1)

in all official

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.

The implementing provisions 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.

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 1999, the Ombudsman dealt with 1 860 cases. 1 577
of these were new complaints received in 1999. 1 458 of
these were sent directly by individual citizens, 90 came from
associations and 23 from companies. 11 complaints were
transmitted by Members of the European Parliament. 278 cases
were brought forward from the year 1998. The Ombudsman
also began 5 own-initiative inquiries.

As first noted in the Ombudsman’s Annual report for 1995,
there is an agreement between the Committee and the
Ombudsman concerning the mutual transfer of complaints
and petitions in appropriate cases. During 1999, 3 petitions
were transferred to the Ombudsman, with the consent of the
petitioner, to be dealt with as complaints. 71 complaints were
transferred, with the consent of the complainant, to the
European Parliament to be dealt with as petitions. Additionally,
there were 142 cases in which the Ombudsman advised a
complainant to petition the European Parliament. (See Annex
A, Statistics, p. 168)

On 30 November 1999,
the Ombudsman amended the
implementing provisions so as to make clear that, following
the Treaty of Amsterdam, complaints may also be submitted
from
in the Irish language. The amendment
1 January 2000. The brochure ‘The European Ombudsman —
could he help you?’ and the complaint form have been added to
the Ombudsman’s website in Irish.

takes effect

In June 1999, the European Parliament amended and re-
numbered, as Rules 177-179, the provisions of its Rules of
Procedure concerning the Parliament’s relationship with the
European Ombudsman. The amendments make clear that the
Ombudsman’s Annual and Special reports are dealt with by
the same responsible Committee (in practice the Committee
on Petitions).

2.2. THE MANDATE OF THE EUROPEAN OMBUDSMAN

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.

(1) European Parliament decision 94/262 of 9 March 1994 on the
regulations and general conditions governing the performance of
the Ombudsman’s duties (OJ 1994, L 113/15).

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The mandate of the Ombudsman, established by Article 195
of the EC Treaty, empowers him to receive complaints from
any citizen of the Union or any natural or legal person residing
or having its 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:

In February 1999 the Commission confirmed its interpretation
of the Regulation. The Irish Ombudsman’s office then claimed
that the Commission’s interpretation was unduly restrictive
and unfair to the applicants concerned. In April 1999, after
careful consideration, the European Ombudsman decided to
open an own-initiative inquiry into the matter and informed
the Commission accordingly.

1.

2.

3.

4.

the complainant is not a person entitled to make a
complaint

In June 1999, the Commission agreed to re-examine its stance
on the interpretation of the provision in question. However, it
also stated:

the complaint is not against a Community institution or
body

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

‘The Commission is of the opinion that the legal interpretation
of an article of a Regulation is not a matter of maladminis-
tration. According to art. 220 (formerly art. 164) of the Treaty,
this question could eventually be decided by the Court of Justice.’

it does not concern a possible instance of maladminis-
tration.

The European Ombudsman’s reply to the Commission on this
point included the following points:

2.2.1.

‘MALADMINISTRATION’

In response to a call from the European Parliament for a clear
definition of maladministration, the Ombudsman offered the
following definition in the Annual Report for 1997:

Maladministration occurs when a public body fails to act in
accordance with a rule or principle which is binding upon it.

In 1998 the European Parliament adopted a Resolution
welcoming this definition.

During 1999,
there was an exchange of correspondence
between the Ombudsman and the Commission which made
clear that the Commission has also agreed to this definition.

The Ombudsman is always mindful of the fact that the highest
authority on the meaning and interpretation of Community
law is the Court of Justice. Furthermore, in accordance with
Article 195 of the EC Treaty the Ombudsman cannot conduct
inquiries where the alleged facts are or have been the subject
of legal proceedings (emphasis added). In practice, however,
neither the Irish Ombudsman nor the Irish citizen who
complained to him has brought, or could easily bring, legal
proceedings concerning this issue. I should also point out that
the meaning of the term ‘maladministration’ is of fundamental
importance for the work of the Ombudsman. For this reason,
I dealt with the matter in the very first Annual Report, for
1995, which stated:

Neither the Treaty nor the Statute defines the term ‘maladminis-
tration’. Clearly, there is maladministration if a Community
institution or body fails to act in accordance with the Treaties
and with the Community acts that are binding upon it, or if it
fails to observe the rules and principles of law established by the
Court of Justice and Court of First Instance.

Error of legal interpretation is a form of maladminis-
tration

The Report also contained a non-exhaustive list of possible
types of maladministration.

In October 1998, the Irish Ombudsman’s office sent a query
to the European Ombudsman concerning the interpretation of
Article 9 (2) of Commission Regulation 3887/92. The query
arose as a result of a number of complaints to the Irish
Ombudsman against the Irish Department of Agriculture and
Food which, acting on Commission advice, had rejected or
restricted payments to certain applicants for grants under
Special Beef and Extensification Premium Schemes.

The 1995 Annual Report was considered by the responsible
Committee of the European Parliament, which accepted the
above explanation of maladministration, and a plenary debate
took place on 20 June 1996 to which Commissioner Marı´n
contributed. The explanation of the term maladministration in
the 1995 Annual Report was also referred to with approval at
the meeting of the European national ombudsmen held in
September 1997.

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In the discussion of the 1996 Annual Report by the Parliament,
there was call for a more precise definition of maladminis-
tration and I undertook in the plenary debate to provide such
a definition. I asked the national ombudsman and similar
bodies to inform me of the meaning given to the term
maladministration in their Member States. From the replies
received, it appears that the fundamental notion can be defined
as follows:

The office of the European Ombudsman was set up in order
to enhance relations between the Community institutions and
bodies and European citizens. In cases where the institution
explains that it has acted correctly in accordance with the rules
and principles that are binding upon it, the citizen is sometimes
satisfied with the explanation, or at least has a better under-
standing of the institution’s actions.

Maladministration occurs when a public body fails to act in
accordance with a rule or principle which is binding upon it.

This definition was included in the Annual Report for 1997,
together with a commentary which emphasised that when the
European Ombudsman investigates whether a Community
institution or body has acted in accordance with the rules and
principles which are binding upon it, ‘his first and most essential
task must be to establish whether it has acted lawfully’.

Following a plenary debate held on 14 July 1998, in which
Commissioner Gradin welcomed the fact that the meaning of
the term ‘maladministration’ has now been clearly defined, the
European Parliament adopted a resolution on 16 July 1998
welcoming the definition of maladministration and stating
that the definition and the examples mentioned in the Annual
Report for 1997 give a clear picture as to what lies within the
remit of the European Ombudsman. (1) The definition was
repeated in the 1998 Annual Report, which was debated in
the European Parliament on 15 April 1999 in the presence of
Commissioner Monti.

Furthermore, in carrying out his inquiries, the Ombudsman is
always aware not only that the highest authority on the
meaning and interpretation of Community law is the Court of
Justice but also of the high degree of expertise of Commission
officials in interpreting and applying Community law in
different subject areas. It is therefore likely that in most cases,
the Ombudsman will find no reason, at the end of his inquiry,
to question the Commission’s considered interpretation of a
legal provision.

The European Ombudsman asked the Commission to inform
him by 31 July 1999 whether it accepts the definition of
maladministration,
included in the Ombudsman’s Annual
Report for 1997 and, if not, to inform him of the reasons.

On 15 July 1999 the Secretary General of the Commission
replied, stating that Commissioner Gradin had agreed to the
above-mentioned definition of maladministration on behalf of
the Commission on 14 July 1998 in the European Parliament.
The Secretary General also confirmed that the Commission’s
review of its interpretation of the provision in question was
the Commission would inform the
under way and that
Ombudsman in a prompt manner of its outcome.

I am therefore surprised, that the Commission should now
wish to re-open a matter which has already been dealt with
through a procedure in which it has had full opportunity to
make its views known.

Q5/98/IJH — OI/3/99/IJH

If the Commission considers that the interests of European
citizens would be better served by making the Ombudsman’s
mandate narrower,
it has the possibility to propose an
amendment to the Treaty so as to exclude cases in which the
complainant has a possible remedy before a court or tribunal.
This restriction would be highly unusual, as is made clear by
the Council of Europe’s definition of an ombudsman’s role,
which includes review of the lawfulness of administrative
acts (2). Such a restriction does exist, however,
in the law
governing the Parliamentary Commissioner in the United
Kingdom. Unless and until the Treaty is amended to impose a
similar restriction on the European Ombudsman, however, he
should continue to fulfil the present Treaty mandate, which
allows inquiries unless the alleged facts ‘are or have been the
subject of legal proceedings’.

(1) OJ 1998 C 292/168.
(2) The Administration and You: a handbook, 1996 p. 44.

2.2.2. THE CODE OF GOOD ADMINISTRATIVE BEHAVIOUR

In November 1998, the Ombudsman began an own initiative
inquiry into the existence and the public accessibility, for the
different Community institutions and bodies, of a Code of
Good Administrative Behaviour for officials in their relations
with the public. The own-initiative inquiry asked nineteen
Community institutions and bodies whether they had already
adopted, or would agree to adopt, such a Code for their
officials in their relations with the public.

On 28 July 1999, the Ombudsman proposed a Code of Good
Administrative Behaviour in the form of draft recommen-
dations to the Commission, the European Parliament and the
Council. Similar draft recommendations were made to the
in September 1999. The
other
Ombudsman’s Code is available in all languages on the website
(http://www.euro-ombudsman.eu.int).

institutions and bodies

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The Ombudsman expects to make a Special Report on the
matter to the European Parliament early in 2000.

2.3. ADMISSIBILITY OF COMPLAINTS

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

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

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

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);

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

1.

2.

3.

4.

5.

Article 2 (7) of the Statute of the Ombudsman provides that,
when the Ombudsman has to terminate his consideration of a
complaint because of legal proceedings, the outcome of any
inquiries he has carried out up to that point shall be filed
without any further action. The Ombudsman therefore decided
to close the case.

Case 739/98/ADB

In July 1999, Mrs P. made a complaint to the European
Ombudsman concerning the refusal of the Commission of the
European Communities to admit her to the written examin-
ation of Competition COM/A/12/98.

The complaint was forwarded to the Commission for its
opinion. In November 1999, the Commission informed the
Ombudsman that the complainant had initiated legal proceed-
ings before the Court of First Instance concerning the facts
which had been put forward in the complaint. Because the
complainant had brought an action before the Court of First
Instance, the Ombudsman, after having heard the complainant
on this issue, terminated his consideration of the complaint in
December 1999 in accordance with Article 195 of the EC
Treaty.

the
In accordance with Article 2 (7) of
Ombudsman, the outcome of the Ombudsman’s inquiries
carried out up to that point was filed without further action.

the Statute of

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

Case 867/99/GG

Examples of inadmissibility because of Court proceedings

2.4. GROUNDS FOR INQUIRIES

In July 1998 the Organisation E´ nergie pour l’Arménie lodged a
complainant with the European Ombudsman. It claimed that
the European Commission refused to pay an invoice for work
carried out in the framework of a contract signed under the
TACIS programme. The complaint was sent to the Commission
for an opinion, and the complainant was given the opportunity
to comment on it. Some further inquiries were made.

The Ombudsman can deal with complaints that are within
his mandate and which meet the criteria of admissibility.
Article 195 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.

In accordance with Article 195 of the Treaty establishing the
European Community, the European Ombudsman may not
conduct inquiries where the alleged facts are or have been the
subject of legal proceedings.

2.5. ANALYSIS OF THE COMPLAINTS

During the investigations on the complaint, the complainant
informed the European Ombudsman that the facts alleged in
his complaint to the Ombudsman were the subject of legal
proceedings before Belgian Courts.

Of the 5 270 complaints registered from the beginning of the
activity of the Ombudsman, 16 % originated from France,
14 % from Germany, 14 % from Spain, 9 % from the UK, and
12 % from Italy. A full analysis of the geographical origin of
complaints is provided in Annex A, Statistics.

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During 1999, 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
93 % of the cases. 27 % of the complaints examined appeared
to be within the mandate of the Ombudsman. Of these,
243 met the criteria of admissibility, but 42 did not appear to
provide grounds for an inquiry. Inquiries were therefore begun
in 201 cases.

Most of the complaints that led to an inquiry were against the
European Commission (77 %). As the Commission is the main
Community organ that makes decisions having a direct impact
on citizens, it is normal that it should be the principal object
of citizens’ complaints. There were 24 complaints against the
European Parliament and 7 complaints against the Council of
the European Union.

The main types of maladministration alleged were lack of
transparency (66 cases), discrimination (31 cases), unsatisfac-
tory procedures or failure to respect rights of defence (33 cas-
es), unfairness or abuse of power (32 cases), avoidable delay
(45 cases) negligence (29 cases), 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 (9 cases) and legal error (29 cases).

2.6. ADVICE TO CONTACT OTHER AGENCIES AND

TRANSFERS

If a complaint is outside the mandate or inadmissible, the
Ombudsman always tries to give advice to the complainant as
to another agency which could deal with the complaint. If
possible the Ombudsman transfers a complaint directly to
another competent agency with the consent of the complain-
ant, provided that
there appear to be grounds for the
complaint.

ate administrative approaches had not been made to the
Commission. In 101 cases the complainant was advised to
contact other agencies.

2.7. THE OMBUDSMAN’S POWERS OF INVESTIGATION

In the Annual Report for 1998 the Ombudsman proposed
that his powers of investigation should be clarified, both as
regards the inspection of documents and the hearing of
witnesses. The European Parliament adopted a Resolution
which urged the Committee on Institutional Affairs to consider
amending Article 3 (2) of the Statute of the Ombudsman, as
proposed in the report drawn up by the Committee on
Petitions (1).

In order to advance this process, the Ombudsman drafted the
following proposal for revision of the text of Article 3 (2) and
forwarded it to the President of the European Parliament in
December 1999:

The Community institutions and bodies shall be obliged
to supply the Ombudsman with any information that he
has requested of them and to allow him to inspect and take
copies of any document or the contents of any data medium.

They shall give access to documents originating in a
Member State and classed as secret by law or regulation
only where that Member State has given its prior
agreement.

They shall give access to other documents originating in
a Member State after having informed the Member State
concerned.

The members and staff of Community institutions and bodies
shall testify at the request of the Ombudsman. They shall give
complete and truthful information.

The Ombudsman and his staff shall not divulge any confidential
information or documents obtained during the course of
inquiries.

During 1999, advice was given in 708 cases, most of which
involved issues of Community law. In 314 cases the complain-
ant was advised to take the complaint to a national or regional
Ombudsmen or similar body. In addition, with the consent of
the complainant 8 complaints were transferred directly to a
national Ombudsman. 142 complainants were advised to
petition the European Parliament and, additionally, 71 com-
plaints were transferred to the European Parliament, with the
consent of the complainant, to be dealt with as petitions. In
149 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 appropri-

The above draft was partly inspired by the Regulation concern-
ing the powers of investigation of the European Anti-fraud
Office (OLAF) which foresees that it shall have the right of
immediate and unannounced access to any information and
the right to copy any document held by the institutions and
bodies (2).

(1) Report of the Committee on Petitions on the Annual Report of
the activities of the European Ombudsman in 1998 (A4-0119/99)
Rapporteur: Laura De Esteban Martin.

(2) See Article 4 of Regulation 1073/1999 (1999 OJ L 136/1).

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2.7.1. THE HEARING OF WITNESSES

According to Article 3.2 of the Statute of the Ombudsman:

‘Officials and other servants of the Community institutions and
bodies must testify at the request of the Ombudsman; they shall
speak on behalf of and in accordance with instructions from
their administrations and shall continue to be bound by their
duty of professional secrecy’.

In correspondence between the Commission and the Ombuds-
man it was made clear that the right to inspect includes the
possibility to read the documents, to make notes, and to take
photocopies.

The Ombudsman’s instructions to his staff concerning inspec-
tion of documents include the following points:

During 1999, the Ombudsman invoked this provision for the
first time in two cases involving the Commission. One of the
cases (1140/97/IJH) was closed in 1999 and is reported below
(p. 83). The inquiry into the other case (995/98/OV) continued
into 2000.

The legal officer is not to sign any form of undertaking
or any acknowledgement other than a simple list of the
documents inspected or copied. If the services of the
institution concerned make such a proposal, the legal
officer transmits a copy of it to the Ombudsman.

On the basis of the experience of conducting hearings, the
Ombudsman wrote to the Secretary General of the Com-
mission on 7 July 1999 setting out a general procedure to
apply in future cases:

1.

2.

3.

4.

5.

The date, time and place for the taking of oral evidence
are agreed between the Ombudsman’s services and the
Secretariat General of the Commission, which informs the
witness(es). Oral evidence is taken on the Ombudsman’s
premises, normally in Brussels.

Each witness is heard separately and is not accompanied.

The language or languages of the proceedings is agreed
between the Ombudsman’s services and the Secretariat
General of the Commission. If a witness so requests in
advance, the proceedings are conducted in the native
language of the witness.

The questions and answers are recorded and transcribed
by the Ombudsman’s services.

The transcript is sent to the witness for signature. The
witness may propose linguistic corrections to the answers.
If the witness wishes to correct or complete an answer,
the revised answer and the reasons for it are set out in a
separate document, which is annexed to the transcript.

6.

The signed transcript, including any annex, forms part of
the Ombudsman’s file on the case.

It was subsequently clarified that point 6 also implies that the
complainant receives a copy of the signed transcript and has
the opportunity to make observations.

If the services of the institution concerned seek to prevent
or impose unreasonable conditions on the inspection of
any documents the legal officer is to inform them that
this is considered as a refusal.

If inspection of any document is refused the legal officer
asks the services of the institution or body concerned to
state the duly substantiated ground of secrecy on which
the refusal is based.

The first point was added following a case in which the
Commission services proposed that the Ombudsman’s staff
should sign an undertaking to indemnify the Commission in
respect of any damage caused to a third party by release of
information contained in the document.

2.8. 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
an opinion. When the opinion is received, it is sent to the
complainant for observations.

2.7.2.

INSPECTION OF DOCUMENTS

During 1999, the Ombudsman’s powers to inspect files and
documents relating to an inquiry were invoked on several
occasions.

In some cases, the institution or body itself takes steps to settle
the case to the satisfaction of the complainant. If the 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.

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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 maladminis-
tration, the complainant and the institution or body are
informed accordingly and the case is closed.

If the Ombudsman’s inquiries reveal an instance of maladmin-
istration, if possible 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 maladminis-
tration, or cases that have general implications), the Ombuds-
man 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.

If a Community institution or body fails to respond satisfac-
torily to a draft recommendation, Article 3 (7) provides for the
Ombudsman to send a report to the European Parliament and
to the institution or body concerned. The report may contain
recommendations.

In 1999 the Ombudsman began 206 inquiries, 201 in relation
to complaints and 5 own-initiatives. (For further details, see
Appendix A, Statistics p. 168)

Sixty two cases were settled by the institution or body itself.
Of this number 39 were cases in which the Ombudsman’s
intervention succeeded in obtaining a reply to unanswered
correspondence (see the 1998 Annual Report section 2.9 for
further details of the procedure used in such cases). Five
cases were dropped by the complainant. In 107 cases, the
Ombudsman’s inquiries revealed no instance of maladminis-
tration.

A critical remark was addressed to the institution or body
concerned in 27 cases. A friendly solution was reached in
1 case. Ten draft recommendations to the institutions and
bodies concerned were made in 1999. Two draft recommen-
dations were accepted by the institutions in 1999, one being a
draft recommendation made in 1998 (cases 1055/96/IJH and
633/97/(PD)IJH, see pages 240 and 242). In the case of 8 other
draft recommendations made in 1999, the deadline for a
detailed opinion from the institution concerned did not expire
before the end of the year.

In one case, a draft recommendation was followed by a special
report to the European Parliament. The case concerned was
the own-initiative inquiry (1004/97/(PD)GG) into the secrecy
which forms part of
the
Commission.

the recruitment procedures of

The report, which is published in the Official Journal (1) and
on the Ombudsman’s website in all languages includes the
following recommendation:

In its future recruitment competitions, and at the latest from
1 July 2000 onwards, the Commission should give candidates
access to their own marked examination scripts upon request.

On 7 December 1999, the President of the Commission
informed the Ombudsman that:

‘The Commission welcomes the recommendations you made in
this report and will propose the necessary legal and organis-
ational arrangements to give candidates access to their own
marked examination papers, upon request, from 1 July 2000
onwards.’

(1) 1999 OJ C 371.

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3. DECISIONS FOLLOWING AN INQUIRY

3.1. CASES WHERE NO MALADMINISTRATION WAS

FOUND

1.

Violation of a number of internal rules of the Socialist
Group:

3.1.1. THE EUROPEAN PARLIAMENT

TRANSPARENCY IN THE PROCEEDINGS OF A COMPETITION
ORGANISED BY A POLITICAL GROUP OF THE EUROPEAN PAR-
LIAMENT

Decision on complaint 1163/97/JMA against the European Parlia-
ment

The complaint

In December 1997, Mrs M. made a complaint to the Ombuds-
man concerning a number of irregularities in open competition
A 1/97 (Spanish administrators) organised by the Socialist
Group of the European Parliament. Her allegations referred to
the composition of the competition’s Selection Board, and the
transparency of its proceedings.

The complainant participated in that open competition in
1997. According to her, even though she reached the last stage
in the selection procedure, and was interviewed by the
Selection Board, her name was not finally included in the
competition’s reserve list.

Mrs M. wrote to the secretariat of
the Selection Board
requesting to have access to her written tests. The Selection
Board replied that since its work was confidential, as set out in
the Staff Regulations and recognised by the case-law of the
Court of Justice, it could not give access to her written test.
The letter added that, although she had obtained high marks
in the written tests (83 points out of 100), in view of the
interviews carried out by the Selection Board, her name could
not be included in the reserve list.

Following another request by the complainant, the Selection
Board informed her in November 1997 that three candidates
had been included in the reserve list for this competition, two
of which had been selected to fill the available posts. The letter
only referred to the names of these candidates. The reply did
not mention the candidates’ results, because of the confidential
the Selection Board. This
nature of
decision was confirmed by the President of the political group
responsible for the organisation of the competition.

the deliberations of

The complainant
therefore lodged a complaint with the
European Ombudsman, putting forward the following claims:

— Article 8.1.5: no representative of the Staff Com-
mittee was present during the oral tests; the Selection
Board included more than two members of the same
nationality/language of the competition (Spanish);
the decision taken by the selection board had been
signed by one of its members without voting rights.

— Article 8.1.6: the number of candidates included in
the reserve list was less than three times the number
of vacant post.

2.

Failure to provide information and lack of transparency:

— According to the complainant, she did not receive
appropriate explanations as regards the evaluation
criteria followed by the Selection Board for the
assessment of the tests. In relation to this aspect, the
complainant indicated that it had taken the President
of the Socialist Group a long time (2 months) to
reply to her requests, and moreover that her letter
to the member of the Selection Board representing
the Staff Committee had remained unanswered.

— The complainant also alleged that the fact that some
candidates included in the reserve list had had
working relations with certain members of
the
Selection Board, raised doubts as to the impartiality
of its decision.

The inquiry

The Parliament’s opinion

The complainant was forwarded to the European Parliament.
In its opinion, it referred to the comments which had been put
forward by the Socialist Group.

— As for the absence of a Staff Committee representative in
the Selection Board, the opinion pointed out that, in
order to constitute the Selection Board, its President had
only to verify whether the minimum number of members
were present so as to form a quorum. Moreover, no
candidate had raised any objection concerning this matter
prior to the beginning of the tests.

— The Socialist Group explained that only two full members
the Selection Board had the same nationality: a
of
representative of the Spanish delegation and the Group’s
secretary general. The latter was a member of
the
Selection Board on the basis of his institutional role in
the Group. There was a second representative of the
Spanish delegation who was however merely an observer,
without the right to vote.

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— Concerning the number of candidates included in the
reserve list, the opinion pointed out that it only included
the candidates who, in the opinion of the Selection Board,
met the selection criteria.

— The opinion contested the allegation of partiality of the
Selection Board based on the existence of working
relations between some of its members and some candi-
dates who were included in the reserve list. The Socialist
Group explained that similar relations existed also in
relation to other candidates who had not been chosen.
Furthermore since the competition had been organised
by the political group only a previous working relation
with that group would have been relevant.

As regards the allegations of lack of information and trans-
parency, the opinion indicated that, taking into account the
need for confidentiality in the work of the Selection Board, the
complainant had been given sufficient information. Accord-
ingly, the Selection Board had no obligation to give any further
information to the complainant.

The Socialist Group explained that the delay in the reply by
the President of its group was due to her frequent travelling.
As regards the lack of reply from the representative of the Staff
Committee, it was noted that, in his capacity as a member of
the Selection Board, he could not make statements on behalf
of the Board in reply to the complainant’s claim.

The complainant’s observations

The complainant stressed the allegations already made in her
complaint.

She referred to each one of the aspects regarding the violation
of
the Socialist Group, which she
considered as the basis for her claim:

the internal rules of

— Firstly, concerning the absence of a representative of the
Staff committee, the complainant considered that the
presence of a staff committee representative is a guaran-
tee. His absence is therefore a violation of the procedure
established both in the Staff Regulations as well as the
internal rules of the Socialist Group. She also pointed
out that she had not contested the Selection Board’s
composition before the beginning of the test because she
presumed that their members acted in good faith.

— The complainant also rejected the Parliament’s expla-
nation for the presence of a third Spanish national in the
Selection Board. Although the Parliament had indicated
that
this person only acted on a consultative role,
the complainant considered that this role should had
prevented him from signing the final decision by the
Selection Board.

— The complainant restated her claims as regards the
allegedly low number of candidates included in the
reserve list.

As regards the lack of transparency, she stressed that the
extensive interpretation given in the Parliament’s opinion to
the principle of confidentiality of the deliberations of the
Selection Board led to a lack of transparency and information.
In her view, the confidentiality of the Board’s deliberations
would not be affected by the release of the selection criteria
used for her final marks, as she had requested. The complainant
supported her point of view with extracts from a recent
judgement of the Court of Justice in case 254/95 (European
Parliament v. Innamorati) (1).

The complainant rejected the Socialist Group’s explanation
about the delay in replying to her requests due to the travelling
of its President. She referred to the rules applied by the
services of the European Ombudsman, which establish that
the complainant should receive an answer from any EU
institution in a reasonable delay.

Further inquiries

In February 1999, the complainant wrote again to the Euro-
pean Ombudsman. Following a conversation with the Presi-
dent of the Spanish Socialist Delegation, she believed a friendly
solution was possible, whereby her name would be added to
the reserve list of the competition. On 8 March 1999, the
Ombudsman forwarded the complainant’s proposal to the
European Parliament.

After several requests for an extension of the deadline, the
Ombudsman received the comments made by the Socialist
Group of the European Parliament on 15 June 1999. In this
letter the group indicated that
the
suggestion made by the complainant. It pointed out that the
reserve list had already been established on the basis of the
candidates that were considered suitable for the post, and at
that time the complainant was not among the names chosen.
It added that any modification of the reserve list would be
discriminatory towards the other non-selected candidates.

it could not accept

(1) Case C-254/95P, European Parliament v Angelo Innamorati, ECR

[1996] I-3423.

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The decision

1.5. The inquiry of the Ombudsman had thus been limited to
in this case, Community rules and

assess whether,
principles had been duly respected.

1.

Scope of the European Ombudsman’s powers

1.1. Since the case was primarily addressed against a political
group of the European Parliament, the Ombudsman
deemed it necessary, before considering the merits of the
case, to make a few considerations regarding the scope of
his powers.

1.2. The facts of the case related to the decisions taken by a
Selection Board of a competition organised by a political
group of the European Parliament for the selection of
several temporary agents to be employed by that group.

1.3. As set out in Article 2 § 1 of his Statute, ‘the Ombudsman
shall help to uncover maladministration in the activities of
the Community institutions and bodies’. Maladministration
occurs when a public body fails to act in accordance with
a rule or principle which is binding upon it (1). There are
limits to what may count as maladministration. Thus,
complaints against decisions of a political rather than an
administrative nature are to be regarded as inadmissible.
That is the case of complaints against the political work
of the European Parliament, or its organs(2), most notably
the activities of its political groups.

1.4. However, the organisation of a recruitment procedure for
the selection of
temporary agents by the European
Parliament’s political groups cannot be entirely con-
sidered as a political activity. Pursuant to article 14 of the
Decision of the European Parliament’s Bureau of 25 June
1997 (3), the political groups are empowered to select
their own temporary agents, and in doing so they exercise
by delegation the powers of the institution’s authority
empowered to conclude contracts of employment under
the conditions of employment of other servants of the
Communities.

From this perspective, the organisation of competitions
for the selection of temporary agents by the Parliament’s
political groups constitutes an administrative activity
subject to certain Community rules. To that extent, this
type of situations fall within the jurisdiction of the
Community courts, and hence both the Court of First
Instance and the European Court of Justice have the
power to review the conformity of these competitions
with Community law.

2. Alleged irregularities based on the internal rules of the

political group

2.1. The complainant claimed that a number of irregularities
had taken place in the course of the competition. These
irregularities referred to:

a.

The composition of the Selection Board: absence of
a representative of the Staff Committee during the
oral tests; presence of more than two members of
the same nationality/language of the competition in
the Selection Board; the signature of the final act of
the Selection Board by one of its non-voting mem-
bers; and working relations between some members
of the Selection Board and several candidates.

b.

The limited number of candidates included in the
reserve list.

The complainant stressed that all these irregularities were
in breach of the Socialist group’s internal regulations.

2.2. The Ombudsman noted that the allegedly non-respected
regulations were addressed to the members of a European
Parliament political group. In view of the political nature
of their work, supervising the application of these rules
was beyond the Ombudsman’s remit.

2.3. Nevertheless, the alleged irregularities had taken place in
the course of a recruitment procedure in which the
political group was acting under the authority and on
behalf of the European Parliament’s authority empowered
to conclude contracts of employment under the con-
ditions of employment of other servants of the Communi-
ties appointing authority. From that point of view, the
organisation of the competition constituted an adminis-
trative activity under Community law and subject to
review by the Community courts.

In order therefore to assess the alleged irregularities, the
Ombudsman sought to elucidate whether the Selection
Board had failed to act in accordance with a Community
rule or principle binding upon it.

(1) The European Ombudsman, Annual Report 1997, p. 23.
(2) The European Ombudsman, Annual Report 1995, p. 17-18.
(3) PE 259.383/BUR.

2.4. Some of the complainant’s claims referred to the incorrect

composition of the Selection Board.

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As established by the Community Courts, the compo-
sition of a Selection Board is to be considered improper
if it cannot guarantee an objective assessment of the
candidates’ qualities (1). From the information submitted
in the course of the inquiry, the Ombudsman could not
conclude that in assessing the candidates’ qualities the
Selection Board of the competition had not been objec-
tive. The Ombudsman therefore found that there was no
evidence of maladministration in relation to this aspect
of the case.

2.5. As regards the candidates to be included in the reserve
list of the competition, the complainant believed that the
number of selected candidates should include three times
the number of posts to be filled. In the Parliament’s
opinion, the Socialist Group indicated that the Selection
Board included in the reserve list only those candidates
who were considered suitable on the basis of the compe-
tition.

2.6. The Ombudsman noted that Article 5 § 5 of Annex III of

the Staff Regulation states that,

In the present state of Community law there is no legal
basis for considering that the Parliament is under an
obligation to disclose detailed information on the criteria
followed by the Selection Board for its evaluation of the
tests. The Ombudsman therefore found that there was no
evidence of maladministration in relation to this aspect
of the case.

3.2. The Ombudsman, however, drew the Parliament’s atten-
tion to the fact that, by communicating more detailed
information on the criteria of evaluation to the candidates,
the Parliament would considerably increase the trans-
parency in the recruitment and could also alleviate the
work of Selection Boards in dealing with requests and
complaints from applicants.

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Parliament. The Ombudsman therefore closed
the case.

‘the Selection Board shall draw up the list of suitable
candidates [...]; the list shall wherever possible contain at
least twice as many names as the number of posts to be
filled.’

Further remarks

In view of the previous provisions, the Selection Board
enjoys certain discretion as to the number of suitable
candidates to be included in the reserve list. The Ombuds-
man considered therefore that there was no evidence of
maladministration in relation to this aspect of the case.

3.

Information on the criteria for the evaluation of the
tests

3.1. The complainant stated that despite her many requests to
the Selection Board’s secretary, its member representing
the Staff Committee and the President of the Group, no
explanation had been given to her as to the criteria for
the evaluation of the tests. In its opinion, the Parliament
indicated that the complainant had been informed of her
marks in the written and oral tests. No further information
could be given to her on the grounds of the confidentiality
of the Selection Board’s deliberations.

(1) See, Joint cases T-32/89 and T-39/89, Georges Marcopoulos v. ECJ

[1990] ECR-II-0281, par. 37-41.

Most of the claims made by the complainant referred to
allegations of potential violations of internal regulations of a
political group. As the Ombudsman had stated before, ensuring
a correct application of these rules was beyond his remit.
Nevertheless,
in carrying out a recruitment procedure for
temporary agents, a political group acts on behalf of the
Parliament’s authority empowered to conclude contracts of
employment under the conditions of employment of other
servants of the Communities, and therefore, should abide
by the relevant Community rules and principles of good
administration. Moreover, since these types of procedures
are often perceived by the citizens as official Community
competitions, the institution itself should also play a monitor-
ing role in order to ensure that those recruitment procedures
are properly carried out, in due respect of the applicable legal
rules and principles. By doing so the Parliament would
contribute to enhancing the Union’s relationship with its
citizens.

In reply to these comments, the President of the European
Parliament wrote to the Ombudsman on 11 January 2000. In
her letter, Mrs Fontaine expressed that political groups should
respect principles of good administration in their recruitment
procedures, and stressed that the Parliament’s administration
monitors compliance with these principles.

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Official Journal of the European Communities

C 260/21

APPLICATION FOR A ‘ROBERT SCHUMAN’ SCHOLARSHIP:
ALLEGED FAILURE TO REPLY BY THE PARLIAMENT

Decision on complaint 287/98/IP against the European Parliament

The Parliament stressed that in view of the above circum-
stances, it considered that no more exchange of correspon-
dence with the complainant appeared necessary. In spite of
this, the institution replied to a further letter of the complainant
dated 26 February 1998, explaining that following the with-
drawal, his application had not been examined.

The complaint

In March 1998 Mr F. made a complaint to the European
Ombudsman concerning the alleged failure of the European
Parliament to reply to his application for a ‘Robert Schuman’
scholarship.

The complainant’s observations

The Ombudsman forwarded the European Parliament’s opin-
ion to the complainant with an invitation to make obser-
vations. No reply to this request was received.

In September 1996, the complainant had applied for a ‘Robert
Schuman’ scholarship from the European Parliament.

The decision

The Parliament sent him an acknowledgement of receipt on
16 September 1996, in which it informed the complainant
that a decision on his application would be taken during the
selection procedure of November 1996.

In his letter to the Ombudsman, the complainant claims that
he never received the aforementioned Parliament’s decision.

The inquiry

The Parliament’s opinion

The complaint was forwarded to the European Parliament. Its
opinion was in summary the following:

The Parliament stated that in September 1996, its services of
the Directorate General of studies sent the complainant an
acknowledgement of receipt of his application. In the same
letter, the institution gave the complainant some information
about the selection procedure. In particular, he was informed
that a decision on his application would be taken during the
selection procedure of November 1996.

The institution pointed out
that a restricted number of
applications that had not been selected in November because
of the small number of scholarships, would be re-examined
during the following three selections.

Alleged failure of reply by the European Parliament

1.

2.

3.

4.

5.

Principles of good administrative behaviour require that
public administrations properly reply to the queries of
citizens.

the complainant applied for a ‘Robert
In this case,
Schuman’ scholarship from the European Parliament. He
claimed that the institution failed to communicate the
decision of the outcome of the selection procedure to
him.

The Parliament pointed out that its services had duly sent
the complainant an acknowledgement of receipt of his
application. Then, by letter of 26 September 1996,
the complainant asked the institution to withdraw his
application. The Parliament had therefore considered any
further reply to the complainant to be unnecessary.

The Ombudsman considered that in its opinion, the
Parliament had reasonably explained its failure to inform
the complainant of the outcome of the selection pro-
cedure.

Furthermore, the Ombudsman noted that the Parliament
also had replied to a letter of the complainant dated
26 February 1998, explaining the reason why his appli-
cation had not been examined.

Conclusion

Furthermore, the Parliament enclosed a copy of a letter that
the complainant sent to the Parliament in September 1996, in
which he disagreed with the modality of the selection pro-
cedure and decided to withdraw his application.

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Parliament. The Ombudsman therefore
decided to close the case.

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Official Journal of the European Communities

11.9.2000

TIME LIMIT FOR SUBMITTING MEDICAL CERTIFICATE

Decision on complaint 689/98/BB against the European Parliament

The complaint

The requirement that supporting documents must be submit-
ted within a maximum of one month from the date on which
the absence began was incorporated into the body of Rules by
the Bureau’s decision of 15 January 1996. The Bureau’s
minutes are circulated to all Members after adoption in
accordance with Rule 28 (1) of the Rules of Procedure.

In June 1998 Mr C., MEP, made a complaint to the European
Ombudsman concerning a request by the College of Quaestors
of the European Parliament to reimburse 50 % of his general
expenses for the reference period September 1996-August
1997.

During the parliamentary year 1996-1997 the complainant
suffered from serious health problems and, as a result, was
unable to be present at the required 50 % of the Parliamentary
Sessions. In fact, he was two days short of the 50 % minimum.
The complainant was notified of this fact and asked to refund
50 % of the general expenditure allowance for the period in
question.

According to the complainant the above mentioned two days
corresponded to 14, 17 and 18 July 1996 during which period
he was hospitalised. He sent the medical certificates after the
summer holidays, believing that the Parliament was closed
in August. These certificates were refused on grounds that
they were submitted after the one month’s time limit. The
complainant indicated that he had acted in bona fide and that
he wished to keep the other half of the general allowances.

The inquiry

The Parliament’s opinion

In its opinion the Parliament made in summary the following
points:

Article 28 (1) of the Rules on Members’ expenses and allow-
ances provides as follows:

‘Any Member who, in a parliamentary year (1 September to
31 August) is absent on at least fifty per cent of those days
fixed by the Bureau for plenary sessions of the Parliament, shall
the general
reimburse to the Parliament
expenditure allowance, under Article 13,
relating to that
period.’

fifty per cent of

Article 28 (2) provides:

In the case of the complainant, he was two days short of the
50 % minimum. He was notified of this fact by letter dated
16 September 1997 and asked to refund 50 % of the general
expenditure allowance for the period in question. On 26 Sep-
tember 1997, the complainant wrote to the Quaestor respon-
sible for financial matters enclosing a medical certificate dated
23 September 1997 relating to medical tests on 14, 17 and
18 July 1997. In order to be accepted as valid, the medical
certificate should have been submitted within one month of
the date on which the absence began, i.e. by 14 August 1997.

The matter was discussed at
the Quaestors’ meeting of
22 October 1997. The College informed the complainant that
the one month’s time limit was clearly laid down in the Rules
on Members’ expenses and allowances and confirmed the
request for repayment of 50 % of the general expenditure
allowance. This decision was notified by letter of 5 December
1997.

By letter of 17 December 1997 the complainant asked the
President of the European Parliament to consider his request
to be allowed to retain the whole of the general expenditure
allowance, pointing out that this failure to respect the one
month’s time limit had been due to his belief that Parliament’s
administrative offices were considered closed during August.

The request was referred by the President to the College of
Quaestors and considered at its meeting of 14 January 1998.
The College replied by letter of 11 February 1998 that
Parliament’s administrative services continued to operate dur-
ing August, where necessary on a ‘permanence’ basis and that
in any event it would have been open to him to submit his
medical certificates in good time by fax or by registered letter.
The College thus confirmed its earlier decision.

On 24 March 1998, the complainant wrote again to the
Quaestor responsible for financial matters. This letter was
considered at the College’s meeting of 1 April 1998, but the
earlier decision was confirmed.

‘Any period of absence referred to in paragraph 1 may be
excused by the President on the grounds of ill-health or serious
family circumstances, or the presence of the Member concerned
elsewhere on mission on behalf of the Parliament. Supporting
documents shall be submitted to the College of Quaestors
within a maximum of one month from the date on which the
absence began.’

According to the Parliament it has been consistent practice of
the present College and previous Colleges of Quaestors to
apply strictly the terms of Article 28 of the Rules on Members’
expenses and allowances and, in particular, the requirement
that medical certificates must be submitted within one month
of the beginning of the period of absence in the case of illness.

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The position adopted by the College is moreover strictly in
accordance with previous cases involving the late submission
of medical certificates by other Members.

The complainant’s observations

In his observations the complainant maintained his complaint.

Further inquiries

On 30 April 1999, the Ombudsman sent a letter to the
President of the Parliament making further inquiries about the
complainant’s allegation that he was in bona fide as regards the
working hours of the Parliament’s services during the summer.
On 21 June 1999, the College of Quaestors replied stating that
the complainant had submitted the medical certificate only
after receiving the letter from the responsible Quaestor.
Furthermore, the complainant could not claim ignorance as
regards the working hours of Parliament’s services during
summer and so maintain that he acted in good faith.

On 19 July 1999, the complainant wrote to the Ombudsman
indicating his wish to maintain his complaint.

The decision

Rules on Members’ expenses and allowances and,
in
particular, the requirement that medical certificates must
be submitted within one month of the beginning of the
period of absence in the case of illness. Moreover, the
position adopted by the Parliament and the College of
Quaestors was strictly in accordance with previous cases
involving the late submission of medical certificates by
other Members. It appeared that the complainant only
reacted after he had received the letter of notification.
Therefore there were no grounds for his claim that he did
not send the medical certificate within one month’s time
limit because he believed that the Parliament’s services
were closed in August. Thus, there appeared to be no
maladministration by the Parliament.

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Parliament. The Ombudsman therefore
decided to close the case.

3.1.2. THE EUROPEAN PARLIAMENT AND THE EUROPEAN

COMMISSION

Claimed reimbursement of 50 % of the general expenditure
allowance for 1996/1997

ACCESS TO REGISTERS OF INTERESTS

Decision on complaint 59/98/OV against the European Commission
and the European Parliament

1.

The complainant claimed that he failed to observe the
one month’s time limit for the submission of medical
certificates on grounds that he in bona fide believed
that the Parliament’s administrative services were closed
during the month of August.

The complaint

2. According to the Parliament, the complainant was noti-
fied by letter of 16 September 1997 of the fact that he
was two days short of the 50 % minimum required
attendance. He was therefore asked to refund 50 % of the
general expenditure allowance for the period in question.
On 26 September 1997, the complainant wrote to the
Quaestor responsible for financial matters enclosing a
medical certificate dated 23 September 1997 relating to
medical test on 14, 17 and 18 July 1997. In order to be
accepted as valid the medical certificate should have been
submitted within one month of the date on which the
absence began, i.e. 14 August 1997.

3.

Based on the Ombudsman’s inquiries, the Ombudsman
noted that the Parliament had followed the consistent
practice of the present College and previous Colleges of
Quaestors to apply strictly the terms of Article 28 of the

In January 1998, Mr S. complained to the Ombudsman that
the Commission refused to send him a copy of the Register of
Interests of the Members of the Commission.

The complainant wrote on 5 December 1997 to the Secretary
General of the Commission in order to get a copy of the
Register of business and financial interests of the Commission
Members. According to the complainant, the Commission did
not provide him with a copy of the Register, but invited him
to consult it on the spot in the Commission’s premises in
Brussels. However, he could not afford a trip to Brussels for
that purpose. He therefore complained to the Ombudsman
the Commission refused him access to the
alleging that
Register, which was not publicly available in the different
Commission Representations of the Member States either.

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On 3 and 10 March and 1 June 1998, the complainant wrote
further letters in which he complained also about lack of
access to the Register of Interests of MEPs. In order to clarify
his complaint he was requested to fill in the standard complaint
form. It appeared however from this complaint form that the
complainant had made no prior administrative approaches
to the European Parliament. Therefore the office of
the
Ombudsman advised him to write to the College of Quaestors.
On 17 December 1998, the Ombudsman received from the
office of MEP and Quaestor Richard Balfe a file on the dealing
of this complaint by the College of Quaestors.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission informed the Ombudsman that it
decided on 24 March 1998 to send the requested documents
to the complainant.
In its observations, the Commission
enclosed a copy of the letter sent to the complainant.

The complainant’s observations

The complainant sent the Ombudsman a copy of a letter he
wrote on 23 April 1998 to the Secretary General of the
Commission in which he expressed his dissatisfaction with the
contents of the Register of Interests sent by the Commission.
He alleged amongst other things that the Registers of Interests
of some Commissioners were not dated, that other Registers
of Interests were not updated, that some Registers of Interests
were written in French and German without English trans-
lation. The letter also included various questions related to the
responsibilities of the Commissioners as regards their Registers
of Interests.

Together with those observations, the complainant also wrote
to the Ombudsman as regards access to the Register of
Interests of MEPs, given that the Register was not available in
the London information office of the European Parliament.
The complainant included correspondence on the subject
between MEP Pauline Green, whom he had contacted, and the
President of the Parliament. In his reply to Pauline Green dated
2 March 1998, the President observed that for the moment
the Register of Interests was available for consultation in the
three places of work of the Parliament. The current wording
of Annex I to the Rules of Procedure is based on the second
Nordmann Report of 30 May 1996 (A4-0177/96), adopted by
the Parliament on 17 July 1996. The President added however
that the question of public access to the Register of Interests

of MEPs was under discussion both in the Rules Committee
and in the College of Quaestors.

The decision

1.

The access to the Registers of Interests of the Com-
mission

1.1. The subject of the complaint concerned access to the
Register of Interests of the Members of the Commission
and had therefore to be considered under the Commission
Decision of 8 February 1994 on public access to Com-
mission documents (1). On 5 December 1997 the com-
plainant wrote a short letter to the Secretary General of
the Commission asking for a copy of this Register,
but received no reply. According to Article 2.4 of the
Decision, failure to reply to an application for access to a
document within one month of application being made
constitutes an intention to refuse access. However, further
to the intervention of the Ombudsman, the Commission
decided on 24 March 1998 to send the requested docu-
ment to the complainant. Therefore, the Commission
complied with the application for access to documents
and no further remark by the Ombudsman seemed to be
necessary.

1.2. As regards the various allegations raised in the complain-
ant’s observations, contained in the letter to the Secretary
General of the Commission, the Ombudsman noted that
they constituted new allegations which were not raised in
the original complaint, and that therefore he could not
deal with them in this procedure. The Ombudsman
further noted that the complainant, in his application
to the Commission for access to documents dated
5 December 1997, did not ask for any details as regards
the Register of Interests, but only for a copy of it.
Therefore, by sending him the requested documents, the
Commission had duly answered his initial request and no
instance of maladministration was therefore found.

2.

The complaint against the European Parliament

2.1. As regards the complaint about the Register of Interests
of MEPs, it appeared from the complaint form that the
complainant had made no prior administrative approach-
es on the subject. Therefore the Ombudsman’s office
advised the complainant
to write to the College of
Quaestors of the Parliament which is the competent body
to deal with this matter, given that
the Quaestors
are responsible for administrative and financial matters
directly concerning Members (Article 25 of the Rules of
Procedure).

(1) OJ 1994 L 46/58.

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2.2. On 17 December 1998, the Ombudsman received from
MEP and Quaestor Richard Balfe a voluminous file on
the complaint by the College of
the handling of
Quaestors. From this file it appeared that the College
of Quaestors had replied in detail
to the letters of
the complainant, on 5 and 19 November and on
14 December 1998. The College provided him with a
large documentation (about 100 pages) on the subject
of access to the Register of
In
particular, the College of Quaestors sent him a copy of
the second Nordmann Report (A4-0177/96) and its
annex, which is a survey of the rules on the declaration
of financial interests in the national parliaments of the
Member States. The College also sent a copy of the
form for the declaration of the Interests of MEPs and
of the accompanying explanatory communication of
the President to the MEPs, as well as a copy of the
minutes for the meeting of the College of Quaestors of
18 September 1996. The College further sent a copy of
two reports in the field of corruption (1).

Interests of MEPs.

2.3. According to Article 3 of Annex I

to the Rules of
Procedure (2) of the Parliament, ‘The register shall be open
to the public for inspection’. In the present situation, this
means that the Register is available for consultation in
the three places of work of the Parliament. Until now,
the Parliament has never taken a decision to make the
Register available in its information offices in the
Member States, or in the form of a copy further to
requests from citizens. In his letter to the complainant,
MEP and Quaestor Richard Balfe stated that
in the
meeting of the College of Quaestors of 18 September
1996, he had requested that the Register be available
in the Member State in which the MEP is elected.
Finally,
to MEP Pauline Green dated
2 March 1998, the President of the Parliament stated
that
the matter of public access to the Register of
Interests of MEPs is currently under discussion in the
Rules Committee and in the College of Quaestors.
Taking into account the actions taken by the Parlia-
ment’s administration, no further
remark by the
Ombudsman on this issue seems to be necessary.

in his

letter

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the

(1) Report of 3 March 1998 on criminal proceedings relating to
the protection of the Union’s financial interests (A4-0082/98,
Rapporteur Mrs Theato MEP) and Report of 24 July 1998 on the
Communication from the Commission to the Council and the
European Parliament on a Union policy against corruption (A4-
0285/98, Rapporteur Mr Bontempi MEP).

(2) Annex I (Provisions governing the application of Rule 9(1) —

Transparency and Members’ financial interests).

European Commission or by the European Parliament. The
Ombudsman therefore closed the case.

3.1.3. THE COUNCIL OF THE EUROPEAN UNION AND THE

EUROPEAN COMMISSION

CENTRE FOR THE DEVELOPMENT OF INDUSTRY: RESPONSIBILIT-
IES OF COMMISSION

Decision on complaint 41/97/(VK)OV against the Council of the
European Union and the European Commission

The complaint

In December 1996, Mr N. made a complaint to the Ombuds-
man concerning the unilateral abrogation of his contract by
the Centre for the Development of Industry (CDI), a joint ACP
(African, Caribbean and Pacific countries)-EC institution set up
in the framework of the Lomé Convention and funded by the
European Development Fund.

The complainant was engaged as a senior consultant during the
Lomé III-Convention (1985-1990) with a five year contract.
However, on 30 June 1987 his contract was unilaterally
abrogated by the Director of the CDI without notice and
without
financial compensation. On 5 January 1988 the
complainant started an arbitration procedure with the CDI.
On 5 April 1990 the arbitration tribunal rendered its decision
by default of the CDI condemning the latter to pay about 6
million BF indemnity, as well as interests and the arbitration
costs. The decision was made enforceable by order of the
Court of First Instance of Brussels of 17 April 1990. The CDI
appealed against this order asking for the annulment of
the arbitration decision, invoking amongst other things its
immunity from jurisdiction. By judgment of 13 March 1992
the Court of First Instance rejected the appeal, referring to the
fact that the CDI, by accepting the arbitration procedure, had
renounced its immunity from jurisdiction.

Given that the CDI refused to execute the judgment of the
Brussels Court of First Instance which confirmed the arbitration
decision, the complainant wrote in December 1996 to the
Ombudsman alleging that the CDI had still not paid the
indemnities, nor the arbitration costs. The complainant drew
the attention to the fact that the CDI was set up in the
framework of the Lomé Convention, of which the contracting
parties are, on the one hand, the European Communities and,
on the other, the ACP states, that the CDI is a joint ACP-EC
institution funded by the European Development Fund, and
that DG VIII of the Commission is the Directorate General
responsible for matters related to the Lomé Convention.

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The inquiry

The Council’s and the Commission’s opinions

The complaint was forwarded to the Council and the Com-
mission in March 1997. In their observations, the Council and
the Commission stated that, although set up by the Lomé
Convention, the CDI is neither a Community institution nor
a Community body falling under their responsibility. The
Commission added that it had no file of the complaint and
that it was not aware that it has ever been seized of the
matter. Both institutions observed that the provisions currently
applicable to the CDI are Articles 87-97 of the Fourth Lomé
Convention, which are supplemented by several decisions of
the ACP-EC Council of Ministers and the ACP-EC Committee
of Ambassadors.

Under these provisions, the Council and the Commission send
an observer to the Executive Board of
the CDI, which
is composed of six independent, highly qualified persons
appointed on the basis of parity between the ACP and the
Community and who have substantial experience in the
private or public industrial or banking sectors or in industrial
development planning and promotion. This means that the
Council and the Commission are not represented on the CDI
Executive Board. The law applicable to the CDI and its
Governing Board derives
from the Lomé Convention
implemented by the ACP-EC decisions. More particularly it is
the joint ACP-EC Committee on Industrial Cooperation which
supervises the CDI (Article 92) and reports to the joint ACP-
EC committee of Ambassadors (Article 87) which adopts the
CDI’s Statute, financial and staff regulations and its rules of
procedure (Article 93).

For these reasons both the Council and the Commission
concluded that they had no direct managerial responsibility
for the CDI and that therefore the complaint fell outside
their competences. However, even though the Commission’s
observer on the Executive Board of the CDI has no voting
rights nor a right to put subjects on the agenda of the meetings
of the Board, the Commission stated in its observations to the
Ombudsman that it would inform the Director of the CDI of
the request of the Ombudsman and recommend that it be
discussed at the next meeting of the Board.

The complainant’s observations

In his comments the complainant first observed that the Lomé
Convention, under which the CDI is established, is the direct
responsibility of the Commission, that the management of the
CDI has always been appointed with the explicit consent of
the Commission and that the budget of the CDI is a grant from
the European Development Fund, and that
therefore the
competence of the European Ombudsman with regard to this

complaint could not be questioned. The complainant further
stated that his complaint should be directly submitted to the
Chairman of the Governing Board of the CDI with a fixed
deadline for a decision.

On 6 October 1997 the complainant sent to the Ombudsman
a copy of a letter to the Chairman of the CDI Governing Board
in which he asked for immediate action by the CDI
to
settle his complaint. In another letter of the same date the
complainant informed the Ombudsman that the note from
the European Commission never reached the Chairman of the
CDI Governing Board. On 22 April 1998, the complainant
asked the Ombudsman to send the complaint directly to
the Chairman of the CDI Governing Board, given that the
Commission had not transferred his complaint to the CDI.
Further to this request the Ombudsman sent on 25 May 1998
the file of the complaint to the Chairman of the Board. On
2 October 1998 the Ombudsman sent a letter in order to be
informed of the outcome of the complaint. No reply was
received from the CDI. In a letter of 4 December 1998 the
complainant sent to the Ombudsman a copy of the letter
addressed to the Chairman of the CDI Governing Board in
which he criticised the ongoing maladministration of the CDI
which had still not given execution to the arbitration decision
enforced by the judgment of the Brussels Court of First
Instance.

The decision

1.

The complaint against the CDI

Article 138e of the EC Treaty empowers the European
Ombudsman to inquire into possible instances of malad-
ministration in the activities of Community institutions
and bodies. Therefore, since the CDI is not a Community
institution nor a Community body in the sense of
Article 138e of the EC Treaty, the Ombudsman has no
power to deal with the complaint insofar as it is directed
against the CDI Governing Board. In his letter dated
27 November 1996, the Ombudsman already informed
the complainant that he could not deal with the complaint
lodged on 26 August 1996 against the CDI.

2.

The complaint against the Council and the Commission

Insofar as the complaint was directed against the Council
and the Commission, the Ombudsman notes that the
Lomé Convention does not make them directly respon-
sible for the decisions of the CDI Governing Board.
Neither the Council nor the Commission have voting
rights on the CDI Governing Board. Article 92.1 of the
Fourth Lomé Convention provides that the Commission
and the Council shall have an observer status at the
proceedings of the Governing Board. Therefore, the fact
the CDI Governing Board did not execute the
that
arbitration decision cannot be considered as an instance
of maladministration by the Council or the Commission.

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Conclusion

3.1.4. THE EUROPEAN COMMISSION

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
Council or the Commission. The Ombudsman therefore closed
the case.

ADEQUATE STATEMENT OF REASONS FOR DECISION

Decision on complaint 106/97/PD against the European Com-
mission

Further remarks

The complaint

As regards the Commission, the Ombudsman noted that the
Lomé Convention as an instrument falls under its direct
responsibility. More particularly, the Ombudsman noted that
Directorate General VIII of the Commission is the Directorate
responsible for Development and for cooperation with the
ACP States under the Lomé Convention, that the budget of the
Convention is funded by the European Development Fund,
and that the Commission has a representative in the Committee
of Ambassadors which is responsible for monitoring the
implementation of the Convention. Therefore it appears that
the European Commission exercises a major influence in the
implementation of the Lomé Convention. As regards the CDI,
the Ombudsman noted that it is a joint ACP-EC institution
funded by the European Development Fund. On the basis of
the above considerations, the Ombudsman made the following
remarks to the Commission:

In a society like the European Union which is governed
by the rule of law,
judgements and orders of courts
should be duly executed. When setting up bodies like the
CDI in the framework of Conventions, the Commission
should seek to guarantee that the bodies so established
abide by the rule of law and by the principles of good
administrative behaviour.

In the present situation it appeared that in DG VIII of the
Commission there exists a unit responsible for relations
with the CDI. The Commission promised in its obser-
vations to the Ombudsman that it would recommend
that the complaint be discussed at the next meeting of
the CDI Governing Board. It appeared however from the
information provided by the complainant that this had
not been the case.

In February 1997, Mr B. lodged a complaint on behalf of an
association, Friends of the Lake District, concerning a decision
by the European Commission to close the file on a complaint
that he had lodged with the Commission concerning the UK
authorities. In substance, the complainant alleged that the
Commission had failed to give adequate reasons for its finding
that the UK authorities had not acted in breach of Directive
85/337/EEC.

The background to the complaint is in brief the following: In
August 1995, the association lodged a complaint with the
Commission against the UK authorities. The complaint con-
cerned a planning permission application for a so-called Rock
Characterisation Facility (RCF). The association considered that
in dealing with this application, the UK authorities had acted
in breach of Directive 85/337/EEC on Environmental Impact
Assessment.

The association judged that
the RCF project should be
considered indissociable from a planned deep repository for
the disposal of nuclear waste. Only by taking the two projects
as one, could a correct environmental impact assessment be
made. The association considered that previous administrative
practice of the Commission supported this view.

Moreover, the association considered that the UK authorities
had acted in breach of Article 5 of Directive 85/337/EEC by
not requiring the applicant company to provide and make
public information on possible alternatives to the RCF project.

Therefore the Ombudsman considered it appropriate for
the Commission to take the necessary steps in order to
the Committee on Industrial
draw the attention of
Cooperation, which supervises the operation of the CDI
Governing Board, to the alleged non-compliance by the
CDI with the arbitration decision as enforced by the order
Instance of 17 April
of
1990. The Commission should also consider drawing the
attention of the Director of the CDI to this matter.

the Brussels Court of First

After having investigated the matter, the Commission informed
the association that Directive 85/337/EEC leaves considerable
areas for discretion to the Member States in relation to
environmental assessments. Information needs only be sup-
plied if the Member State considers that the information is
relevant to the specific characteristics of a particular project
and the environmental features likely to be affected. On the
basis of the information available to it, the Commission did
not find that the United Kingdom had breached Directive
85/337/EEC, and had therefore decided to close the file.

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Considering that reply from the Commission unsatisfactory,
the association lodged the complaint with the Ombudsman.
In the complaint, it was in substance put forward that the
Commission had failed to give adequate reasoning why the
RCF project was dissociable from a possible deep repository
for the disposal of nuclear waste and why information on
alternative sites was not considered necessary.

The inquiry

To avoid misunderstanding, it is important to recall that the
EC Treaty empowers the European Ombudsman to inquire
into possible instances of maladministration only in the
activities of Community institutions and bodies. The Statute of
the European Ombudsman specifically provides that no action
by any other authority or person may be subject of a complaint
to the Ombudsman.

dissociability of the project, the building of a nuclear deposi-
tory would have required a separate planning application; the
RCF project could therefore be considered dissociable from
any such plans for a nuclear depository.

The complainant’s further observations

In its observations, the association maintained the complaint.

After careful consideration of the Commission’s second opin-
ion and the further observations from the complainant, the
Ombudsman asked the Commission to elaborate further its
opinion on why the RCF was a dissociable project and why
information on alternative sites was not considered necessary.

The Ombudsman’s inquiries into this complaint were therefore
directed towards examining whether there had been maladmin-
istration in the activities of the European Commission.

The Commission’s third opinion

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission in substance repeated the reasoning
previously given to the complainants.

The complainants’ observations

In its observations, the association maintained the complaint.

In its third opinion, the Commission first provided further
clarification of the issue of dissociability. As for the information
on project alternatives, the Commission took the view that
since the two projects were dissociable, the RCF project fell
within Annex II of Directive 85/337/EEC. Thus, the matter was
considered in relation to Article 4(2) of Directive 85/337/EEC,
which states that projects listed in Annex II shall be made
subject
to an assessment where Member States consider
that their characteristics so require. The RCF project being
dissociable from a possible repository for the disposal of
nuclear waste, the Commission considered that information
on alternative sites was not needed.

Further inquiries

The complainant’s observations on the Commission’s third
opinion

After careful consideration of the Commission’s opinion and
the complainant’s observations, the Ombudsman considered
that the Commission could have replied more adequately to
the relevant arguments put forward by the complainant. The
Commission was therefore requested to clarify, firstly, why the
Commission had considered the RCF project dissociable from
the planned nuclear waste deposit project; secondly, on what
basis the Commission had concluded that the UK had not
acted contrary to Directive 85/337/EEC when refraining from
requesting the applicant company to give information on
project alternatives.

In its observations on the Commission’s third opinion, the
association maintained in particular the grievance that the
Commission had failed to explain itself adequately on the
question of alternative sites.

The decision

Failure to give adequate reasons

The Commission’s second opinion

In its reply, the Commission repeated that there was no
evidence that the United Kingdom had failed to fulfil the
obligations of Directive 85/337/EEC. The failure to require
publication of alternative project options was accordingly not
an infringement on the part of the United Kingdom. As for the

1.

Principles of good administration require the adminis-
tration to give adequate reasons for the decisions it takes
on submissions that citizens have made to it. In this case,
it was apparent that the Commission initially failed to
give adequate reasons on the complainant’s two concerns,
the dissociability of the RCF project and the need for
information on alternative sites.

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2. However, in the course of the inquiry, the Commission
stated the reasons why it considered the RCF project to
be dissociable and why it considered that information on
alternative sites was not needed. It appeared that the
Commission in essence considered that the RCF project
was a dissociable project as it could stand alone from a
possible repository for nuclear waste. As the project
the Commission considered that
could stand alone,
information on alternative sites was not needed. This
reasoning did not appear unreasonable.

The Ombudsman therefore concluded that the Com-
mission has rectified its original failure to provide an
adequate statement of reasons.

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to be no maladministration by the Commission.
The Ombudsman therefore closed the case.

HANDLING OF A COMPLAINT AGAINST THE UK AUTHORITIES

Decision on complaint 298/97/PD against the European Com-
mission

The complaint

In April 1997, Mr C. MEP complained to the Ombudsman on
behalf of the association Save Our Shoreline Southport (SOS).
The complaint alleged failure of the Commission to enforce
Community environmental legislation in the UK, as well as
procedural errors in the handling of complaints from SOS.

The background to the complaint was in brief the following:
On 10 December 1995, SOS lodged a complaint with the
Commission, claiming that the UK authorities had infringed
Community law by building a concrete sea defence wall at
Southport. The association considered that the local authority
which gave the planning permissions in 1993 and 1995
legislation. The
did not respect Community environmental
association had contacted the UK central government auth-
orities who chose not
to review or overturn the local
authority’s decision to grant planning permissions.

In the complaint to the Commission, SOS drew attention to
the protected status of the area in which the concrete sea wall
was to be constructed, a status which is provided by Directive
92/43/EEC on habitats and Directive 79/409/EEC on wild
birds. The association considered that the concrete sea wall

would cause direct damage to fauna and flora, as well as
indirect damage by facilitating a heavy increase in traffic. The
association therefore asked the Commission to assess whether
the local authority had acted in breach of its obligations under
the above Directives.

Art 6 of Directive 92/43/EEC provides in respect of protected
areas:

‘Any plan or project not directly connected with or necessary to
the management of the site but likely to have a significant effect
thereon, ... , shall be subject to appropriate assessment of its
implications for the site in view of the site’s conservation
objectives. In the light of the conclusions of the assessment of
the implications for the site and subject to the provisions of
paragraph 4, the competent national authority shall agree to
the plan or projet only after having ascertained that it will not
adversely affect
if
appropriate, after having obtained the opinion of the public.
(Underlining added; the same provision applies in respect of
Directive 79/409/EEC, see Article 7 of Directive 92/43/EEC.)’

the integrity of the site concerned and,

The association considered that the sea wall would have a
significant effect on the area. In contrast, the local authority
had considered that the sea wall was not ‘likely to have a
significant effect’ and had therefore not proceeded to conduct
a full assessment of the environmental
implications. The
association contested the local authority’s conclusions and put
forward that a natural alternative to the concrete sea wall
should have been considered. An adequate alternative would,
according to the association, be sand dunes. The association
also stated their suspicion that a concrete sea wall had
deliberately been chosen to make increased traffic possible, an
objective which would cause damage to the area’s environ-
ment. This damage should have been considered in the
environmental
Directive
85/337/EEC.

assessment

impact

under

On 4 July 1996, the Commission asked the UK authorities for
comments on the matter. The UK authority which supplied
the comments was English Nature, a statutory body under the
Department of Environment, Transport and the Regions.
The opinion produced by English Nature concluded that the
contested sea wall project would not breach Community
environmental
In addition to the information
from English Nature, the Commission undertook an on-site
inspection early September 1996. On 30 September 1996
the Commission concluded that there was no breach of
Community environmental
law. On 3 February 1997 the
association was informed of this decision.

legislation.

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Being dissatisfied with the Commission’s conclusions and its
handling of the complaint, the association wrote to its local
Member of the European Parliament who forwarded the matter
to the European Ombudsman. In substance, the association
claimed that the Commission:

— failed to involve the association in its on-site inspection

in early September 1996.

— failed to inform the association in good time about the

results of its investigation.

— interpreted Community environmental legislation incor-
rectly. The planning permissions should have been con-
sidered illegal because the planning process failed to
consider natural sand dune defences in accordance with
the conservation objectives and requirements under
Directives 92/43/EEC and 85/337/EEC.

The inquiry

To avoid misunderstanding, it is important to recall that the
EC Treaty empowers the European Ombudsman to inquire
into possible instances of maladministration only in the
activities of Community institutions and bodies. The Statute of
the European Ombudsman specifically provides that no action
by any other authority or person may be the subject of a
complaint to the Ombudsman.

The Ombudsman’s inquiries into this complaint were therefore
directed towards examining whether there had been maladmin-
istration in the activities of the European Commission.

The Commission’s opinion

The complaint was forwarded to the Commission. In summary
the Commission’s opinion made the following points: As
regards the first grievance, the Commission stated that the visit
by representatives of
the Commission was informal and
undertaken at the request of the local Council. The Com-
mission’s interest in undertaking such a visit was only to
establish visually, at first hand, the area of coast and precise
location of the project. Given the limited role of the visit, a
discussion with the association was not considered appropri-
ate. The Commission added that it had been in receipt of a
substantial correspondence and material relating to the poten-
tial environmental impact of the project from the association
and understood fully its concerns with regard to the proposed
development.

As concerns the third grievance, the Commission stated that
the trigger for applying the safeguards under the above
mentioned Directives is the likelihood that a plan or project
will have a significant effect on the site concerned. This
likelihood is not only to be seen in terms of the plan or project
itself, but also in terms of other plans or projects. After
considering the submissions from the UK authorities, the
Commission had concluded that the project would not breach
Community environmental law or policy, since there was no
negative assessment of the implications for the site in view of
the site’s conservation objectives.

The complainant’s observations

In substance, the association maintained its complaint.

Further inquiries

After a careful consideration of the Commission’s opinion and
the association’ observations it appeared that there were still
outstanding differences between the Commission and the
association, in particular as concerns the question whether the
Commission investigated the option of allowing sand dunes to
develop natural sea defences and as concerns the question why
the Commission considered that the project would not have a
significant impact on the area concerned in the meaning of
Art 6 of Directive 92/43/EEC. Accordingly, the Ombudsman
asked the Commission to submit an opinion on these issues.

The Commission’s second opinion

The Commission replied in more detail, stating that after
having examined the evidence submitted by the UK authorities,
it considered that none of the phases of the sea wall develop-
ment would have a significant adverse effect on the protected
area. It had also been able to verify that the assessment by the
UK authorities had been carried out properly. As for the alleged
failure to consider alternatives, the Commission repeated that
Article 6(3) of Directive 92/43 requires the authorities to look
for alternatives only when it has been considered that the
proposed project will have a significant impact on the protected
area. In this case it was considered that the project did not
have significant environmental effects on the area in question,
and it had therefore not been a legal requirement to look for
alternatives. The Commission added that notwithstanding this
lack of a legal obligation, the UK authorities had in fact
investigated the option of allowing sand dunes to develop sea
defences. They had explained to the Commission that after
having examined the matter carefully, they had reached the
conclusion that a natural defence could not provide, neither in
the short nor in the medium term, the degree of
flood
protection afforded by hard (concrete) defences.

As for the second grievance, the Commission acknowledged
that the delay was excessive, and informed the Ombudsman
that measures had been taken to avoid similar delays in the
future.

To substantiate and provide evidence for these conclusions
and observations, the Commission provided the Ombudsman
with the relevant confidential correspondence between itself
and the UK authorities.

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The complainants’ further observations

3.

The failure to inform the complainant in good time
about the results of the Commission’s investigation

In substance, the association maintained its complaint.

The decision

1.

Preliminary observation

1.1. In its submissions, the association raised issues which
in
were not put forward in the original complaint,
particular concerns about plans
to strengthen and
increase the use of coastal roads in Southport.

1.2. The Ombudsman shall observe that he has received a
complaint from another association concerning the plans
to strengthen and increase the use of coastal roads in
Southport, complaint 813/98/PD.

The Ombudsman found that the substance of these new
issues was better investigated within the inquiry of this
other complaint, for which reason they were not to be
decided on in the present inquiry.

3.1. The association considered that the Commission had
failed to inform it in good time about the results of its
investigations.

3.2. In 1997 the Ombudsman carried out an own initiative
inquiry 303/97/PD concerning the Commission’s admin-
istrative procedures in complaints like the present one. As
a result, the Commission undertook to keep complainants
informed about the dealings with their complaints, in
particular about its possible intention to close the file, so
that the complainant concerned may comment ther-
eon (1). However, that undertaking was subsequent to the
facts of this case; the administration cannot be requested
to comply with undertakings which had not been made
at
the
Commission acknowledged in this case that the delay in
informing the association of its final decision to close the
file was excessive. It also informed the Ombudsman that
measures had been taken to avoid similar delays in the
future. The Ombudsman therefore found that it was not
necessary to conduct further inquiries into this part of
the complaint.

the disputed facts. Furthermore,

the time of

2.

The complainant’s participation in the on-site meeting

4.

The Commission’s conclusions concerning non-infringe-
ment

2.1. The association considered that the Commission should
have ensured the association’s participation in the on-site
meeting, organised by the British authorities.

2.2. The exclusion of a complainant from a meeting intended
to negotiate or otherwise discuss the subject matter of
the complaint would prima facie be unreasonable in a
normal administrative procedure in which the complain-
ant is a party. In addition, beyond the complainant’s
individual interest in participating in such meetings, the
participation can assist to bring about the most relevant
information and deliberation and thus ensure a higher
confidence in the correctness of the Commission’s final
conclusions.

However, in the present case, the on-site inspection had
very limited objectives, and was furthermore undertaken
at an invitation by the UK local authority. Against this
background, the Ombudsman did not consider that the
Commission had acted unreasonably by not ensuring the
association’s participation. However this aspect of the
complaint led the Ombudsman to formulate further
remarks to the attention of the Commission.

4.1. The central points put forward by the association were,
firstly, that the Commission wrongly concluded that the
sea wall project was not likely to have a significant effect
on the protected site in question, and secondly, that
natural alternatives to a concrete sea wall should have
been considered. The association referred to Directive
92/43/EEC and Directive 85/337/EEC.

4.2. The Commission acknowledged that alternatives must be
considered under Directive 92/43/EEC if the project in
question is deemed ‘likely to have a significant effect’. The
issue therefore turned on the Commission’s
overall
assessment of whether such ‘significant effect’ was likely
or not. The Ombudsman’s
inquiry was aimed at
investigating whether the Commission had acted correctly
and diligently in making this assessment.

(1) Annual Report 1997, chapter 3.7.

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In cases like the present one, the Commission’s assess-
ment is normally limited to verifying whether national
authorities have complied with procedural rules, whether
the facts have been accurately stated and whether there
has been any manifest error of appraisal or misuse of
power.

4.3. The association disputed the correctness and relevance of
the facts provided by the UK authorities. The confidential
correspondence to which the Ombudsman was given
access by the Commission suggested that the submissions
from the UK authorities contained relevant and objective
criteria. Thus, the inquiry did not reveal evidence which
would indicate that the Commission’s reliance on the
facts submitted by the national authorities was irrational
or unreasonable and thereby constituted an instance of
maladministration.

Conclusion

written test (3,51 out of 20), was below the required mark and
that therefore she had failed the test.

The complainant requested a copy of her marked test in
November 1996 and January 1997, in order to verify that the
mark she had obtained corresponded to the corrections made
in her test. Both requests were rejected by the Selection Board,
because of the confidentiality of its work. In view of her
academic and professional experience,
the complainant
expressed her concern as regards the low marks obtained, and
asked the Ombudsman to get a copy of her marked test. She
also indicated that the Selection Board’s refusals of her requests
were contrary to the principles of openness and transparency.

The inquiry

The Commission’s opinion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
Commission. The Ombudsman therefore closed the case.

The complaint was forwarded to the Commission. Its opinion
was in summary the following:

Further remarks

It appeared in this case that a local association had lodged a
complaint with the Commission concerning a local building
project, alleging that the project infringed Community environ-
mental law. In the course of the examination of the complaint,
the Commission services responsible participated in an on-site
inspection of the project, at the invitation of the authority
concerned. The Ombudsman found that in such a situation,
where the Commission services responsible are on the site
because of the complaint, they should take steps to meet also
with the complainant.

REFUSAL TO ALLOW A CANDIDATE IN AN OPEN COMPETITION
A COPY OF THE MARKED TEST

Decision on complaint 365/97/JMA against the European Com-
mission

The Commission first set the background of the case. It
explained that the complainant sought to take part in inter-
institutional competition EUR/LA/97 organised for the estab-
lishment of a reserve list for translators (LA6/LA7) of Spanish
mother tongue (1). The European Commission organised the
tests, and acted as the appointing authority. However, the
Selection Board was composed of officials appointed by the
different institutions.

In the notice of the competition concerning the written tests
(points VII.A and VII.B), it was indicated that the first written
test (a) should consist of a translation into Spanish of a text of
approximately 25 lines without a dictionary. The second
written test (b), was to be made of a series of multiple-choice
questions related to European integration and EC policies.
These two tests would be marked first. Successful candidates
should have obtained a minimum score in both tests (10 out
of 20 for test a; 5 out of 10 in test b), and furthermore, be
among the best 144 candidates.

The complaint

In April 1997, the regional ombudsman of Catalonia, in Spain,
transferred to the European Ombudsman a complaint lodged
by Mrs E.

Mrs E., having obtained only a 3,51 mark in the first written
test (a), was therefore eliminated from the competition. In
reply to her request of a copy of her test, the relevant
Commission services explained that the results were in accord-
ance with the marks attributed by the Selection Board.

In September 1996, Mrs E. had taken part in the written tests
of open competition EUR/LA/97. In November 1996, she was
informed by the Selection Board that her score in the first

(1) OJ C 62A.

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The Commission also pointed out that its refusal to allow
candidates to have access to their marked tests, was supported
by the wide powers of Selection Boards to evaluate the merits
of candidates, as recognised by the Court of Justice. In this
context, the only obligation for Selection Boards is properly to
reason their decision. In the present case, this duty had been
met when the Selection Board indicated to the complainant
the marks she had obtained, as well as the criteria used for the
correction of
tests had been
marked by two different evaluators, chosen among experienced
translators, showed that no subjective considerations had
taken place in the marking of the tests.

the tests. The fact

that all

As regards the complainant’s claim of lack of transparency,
the Commission expressed its view that the Selection Board
had operated with the largest possible degree of transparency,
and with due respect of the rule of law and confidentiality
principles. Article 6 of Annex III of the Staff Regulations
imposes a duty of confidentiality upon the work of Selection
Boards, in order to avert any potential pressure being put on
their individual members.

The complainant’s observations

In her observations on the Commission’s comments, the
complainant expressed some reasonable doubts as to the very
low marks given to her, especially in view of her career and
professional experience. The complainant explained she had
specialised in English philology, with Master courses in
Phonetics and Linguistics at the University College London,
where she also followed PhD courses, thanks to a research
grant of the British Academy. Furthermore, she stressed that
access to her marked test could hardly affect either the
effectiveness of the Selection Board or the transparency of the
Commission’s work.

Further inquiries

The Commission added that the normal means available to
candidates to contest the decisions of the Selection Board are
the appeal provided for in article 90 of the Staff Regulations,
and recourse to the Community courts.

the Statute of

the Commission’s refusal

to grant access to
In view of
the documents being requested, the Ombudsman wrote to
Commission President Santer on October 1998, and reminded
the institution of its duty under the provisions of Article 3
the European Ombudsman (1). The
(2) of
Ombudsman also indicated in his letter that he intended to
have the document inspected by a member of his Secretariat
at the Commission’s premises, so that any possible misunder-
standing regarding the potential use of
the copy to be
transmitted to him could be avoided. In its reply, the Com-
mission agreed to hold a meeting ‘to discuss the nature of our
concerns, since the Commission, at this stage, is not in a position to
fully meet your request’.

The meeting took place on 25 November 1998 at the Com-
mission’s premises in Brussels. In the course of the meeting,
the Commission services responsible explained the procedure
followed in the running of competitions, and in particular, the
way corrections were made and supervised by the Selection
Board. Taking into account the guarantees provided for by this
procedure, and the limitations imposed by the case-law of the
Community courts, it was suggested that there were sufficient
elements to exclude any potential maladministration in the
work of the Selection Board.

As for the requested inspection of the file, the representatives
from the Commission stated that they could not take a final
position on the matter before discussing it in the context of an
inter-institutional meeting of the ‘Heads of Administration’.

Since there was no formal reply from the Commission by the
end of November 1998, the Ombudsman wrote again to the
institution, and asked to inspect the relevant files, adding that

On July 1998, the Ombudsman wrote again to the Com-
mission, requesting a copy of the written test of Mrs E. in open
competition EUR/LA/97, with the corrections made and the
marks given by the Selection Board.

‘“If the Commission refuses to give the Ombudsman access to
the files concerned, I request you [President Santer] to state the
duly substantiated grounds of secrecy on which the decision is
based.”

In its reply, the Commission repeated the refusal to give copies
of marked tests, recalling its arguments in a previous complaint
(Ombudsman’s own initiative 1004/97), namely the need to
preserve the confidentiality of the Selection Board’s work as
laid down in article 6 of Annex III of the Staff Regulation. The
Commission also explained that the work of the Selection
Board in this type of competition also involves a comparison
of the merits of the candidates. This comparative assessment
could not be properly undertaken by reviewing a single
exam without reference to the other ones. In view of these
considerations, the Commission regretted not being able to
meet the Ombudsman’s request.

In order to ensure that any special report to the European
Parliament can be made promptly, I would be grateful to receive
your reply by no later than 11 January 1999.’

(1) ‘The Community institutions and bodies shall be obliged to supply the
Ombudsman with any information he has requested of them and give
him access to the files concerned. They may refuse only on duly
substantiated grounds of secrecy’.

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In a letter signed by Mr Trojan, Secretary General of the
Commission, dated 23 December 1998,
the Commission
finally agreed to organise a meeting for the Ombudsman to
inspect the written tests of the complainant in this case.

The inspection took place in Brussels, on the Commission
premises on 11 January 1999. A team of three members of the
Ombudsman’s secretariat examined the documents brought by
the Commission services, which included the original written
test drafted by the complainant, two marked copies with the
corrections made, and the score given by both evaluators, and
the criteria defined by the Selection Board and used by the
evaluators in their assessment of
In reply to
questions from the Ombudsman’s services, the Commission
representatives explained the criteria laid out by the Selection
Board for the marking of tests, and the procedure followed to
ensure that the marked copies corresponded to the original
test of the complainant. The Ombudsman’s services inspected
the complainant’s translation into Spanish of the original
English text, and the corrections and marks made by each of
the two examiners.

the tests.

The decision

1. Role of the European Ombudsman

1.1. In the course of the Ombudsman’s inquiry into this case,
the normal means for
the Commission stated that
candidates to contest adverse decisions taken by Selection
Boards in open competitions are the appeal provided for
in article 90 of the Staff Regulations, and recourse to the
Community courts. It had also implied that the work of
any Selection Board has sufficient internal controls and
guarantees to exclude any potential instance of maladmin-
istration.

1.2. The institution of the European Ombudsman, as set up
by the Treaty of Maastricht, was meant to underline the
commitment of the Union to democratic, transparent
and accountable forms of administration. To accomplish
such an aim, the Ombudsman shall help to uncover
maladministration in the activities of Community insti-
tutions and bodies, and make recommendations with a
view to putting an end to it (1). These Community
activities which do not fall within his mandate, are
explicitly stated in his Statute (2).

1.3. No activity related to the organisation of a competition,
or its procedure, let alone the decisions taken by Selection
Boards, have been excluded from the Ombudsman’s
remit. Accordingly, the Ombudsman has the powers
to launch any inquiry related to a potential case of
maladministration in this type of cases.

1.4. As regards the means to contest a decision of a Selection
Boards, in addition to the use of article 90, par. 2 of the
Staff Regulations or recourse to the Court of First
Instance, candidates may send a complaint to the Euro-
pean Ombudsman. Nothing precludes complainants in
those cases from exercising their rights to apply to the
Ombudsman as European citizens.

2. Claim by the complainant to have access to her marked

tests

2.1. The complainant had repeatedly asserted her right to
have access to her tests once marked by the Selection
Board, as a means to ensure that the process had been
carried out with transparency and in due respect for the
rule of law.

The Commission had rejected her requests on the grounds
that the work of the Selection Board is confidential as set
out in article 6 of Annex III of the Staff Regulations.

2.2. In the present state of Community law there is no legal
basis for considering that the Commission is under an
obligation to disclose a copy of corrected examination
papers to the candidates. In this regard, the Ombudsman
referred however to his own initiative inquiry concerning
more transparency in the recruitment procedures fol-
lowed by the Commission (ref. 1004/97/PD).

Furthermore, in order to dispel any potential suspicion
concerning the corrections made in Mrs E. written
test, the Ombudsman carried out an inspection of the
documents on 11 January 1999.

3. Assessment of Mrs E.’s written test

3.1. As established by Community case-law, in assessing the
results of tests, Selection Boards enjoy a wide discretion.
It can be
This power, however,
reviewed to ascertain whether its exercise, which must be
based on objective criteria, is vitiated by a manifest error
or by a misuse of powers, or whether the Selection Board
has manifestly exceeded the limits of its discretion (3).

is not unbounded.

(1) Article 138e Treaty establishing the European Community;

Article 2, par. 1, Statute of the European Ombudsman.

(2) For instance, cases before courts or related to a court’s ruling
(article 1, par. 3), or those activities of the Court of Justice and the
Court of First Instance acting in their judicial role (article 2,
par. 2).

(3) See, case T-46/93, Fotini Michaël Chiou v. Commission [1994] ECR
II-929; par. 48; case 40/86, Georges Kolivas v. Commission [1987]
ECR 2643; par. 11.

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3.2. In order to ensure that in using its discretionary powers,
the Selection Board had acted within the limits of its legal
authority, the Ombudsman requested an inspection of
the relevant documentation concerning this case, namely
the complainant’s written test
in open competition
EUR/LA/97 and the evaluation made by the Selection
Board.

3.3. Having inspected the relevant documents in this case, the
Ombudsman had found no evidence to question the
judgements made by the Selection Board. The Ombuds-
man had therefore concluded that the Selection Board
had acted within the limits of its legal authority. There
appeared to be no instance of maladministration as
regards this aspect of the case.

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
Commission. The Ombudsman therefore closed the case.

ARGENTINEAN DENTISTRY DIPLOMAS

Decision on joined complaints 531/97/PD and 535/97/PD against
the European Commission

The complaints

In April and June 1997, Mrs S. and Mr P. made a complaint
to the Ombudsman concerning a statement made by the
Commission about Argentinean dentistry diplomas. In sub-
stance,
the Commission wrongly
forward that
discredited Argentinean dentists.

they put

The background to the complaints was the following:

Spain, which became a member of the European Community
in 1986, has for many years had Latin-American dentists
working on its territory. These dentists have been allowed to
work on the basis of international agreements between Spain
and a number of Latin-American countries. In the late nineteen
eighties, the European Commission concluded that some Latin-
American diplomas in dentistry did not comply with the
minimum requirements for dentistry diplomas, laid down by
Directives 78/686/EEC and 78/687/EEC on harmonisation
and mutual recognition of dentistry diplomas (OJ 1978
L 233/1 and OJ 1978 L 233/10). In 1990, the Commission
therefore started to conduct investigations with a view to
initiating infringement proceedings against Spain under
Article 169 EC Treaty. Spain initially defended its case, refer-
ring to Article 1(4) of Directive 78/687 which provides that
Member States are free to make their own arrangements for
the recognition of third country diplomas. Spain later changed
its legal rules to the satisfaction of the Commission which in
1997, decided not to initiate court proceedings.

In its annual reports on the monitoring on the application of
Community law, the Commission gave amongst others the
following information on the state of the on-going investi-
gations against the Spanish authorities (see for instance the
14th annual report (1996), published in OJ 1997 C 332/1):

‘a case against Spain for admitting dentists with qualifications
obtained in Latin America at a level far below the Directive’s
requirements.’

It was this statement which gave rise to the complaints to the
Ombudsman. The complainants considered that the statement
wrongly discredited the holders of Argentinean diplomas in
dentistry. In the complaints, it was in substance put forward

— that the Commission’s interpretation of the applicable
law was wrong and therefore wrongly led it to initiate the
investigations against Spain, and

— that

the statement

in question was based on poor
knowledge of Latin-American diplomas in dentistry and
thus tainted by inadequate examination of the issues
assessed.

In support of the first allegation, the complainants referred to
the above mentioned Article 1 (4) of Directive 78/687/EEC,
according to which Member States remain free to recognise
diplomas from third countries.

In support of the second allegation, the complainants stated,
amongst others, that the Commission had apparently not
contacted the relevant sources for adequate information, for
instance Latin-American education establishments. Further-
more, they submitted material that showed that Argentinean
educations in dentistry had served as inspiration for the
Spanish education in dentistry.

The inquiry

The Commission’s opinion

The complaints were forwarded to the Commission. The
Commission’s opinion stated, in substance, the following:

As for its view that third country diplomas recognised by
individual Member States must comply with the minimum
requirements laid down in the Dentistry Directives, the Com-
mission stated that the aim of the Directives required such an
interpretation. The public health and freedom of movement
could be harmed if individual Member States were allowed to
create categories of dentists who do not comply with the
minimum requirements in the Community directives. The
recognition of Latin-American dentists, who did not comply
with the requirements of the Directives, had as a consequence
that the free movement of European dentists was impaired.

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As for the statement referred to in its annual reports, the
Commission observed that the statement did not constitute a
precise ‘technical’ evaluation in itself. Such a statement was
only intended to succinctly convey information of a factual
nature. As for the substantive evaluation behind the statement,
the Commission stated that this had been conducted with
adequate regard to normal practice and due diligence.

The complainants’ observations

In their observations the complainants maintained the com-
plaint.

Further inquiries

After careful consideration of the Commission’s opinion and
the observations lodged, the Ombudsman decided to inspect
the file underlying the Commission’s statement. By letter of
2 July 1998, he requested the Commission to make the
necessary arrangements for the inspection. The purpose of the
inspection was to verify that the Commission had properly
examined the file which constituted the basis for the statement.
On 11 and 12 January 1999, two senior legal officers from
the Ombudsman’s Office carried out the inspection. During
and after the examination of the file, the six Commission
officials who represented respectively Directorate General XV,
the Legal Service and the General Secretariat also replied to
questions put to them by the Ombudsman’s officers.

The decision

1.

The allegations

interpretation,

The complainants made two allegations. First, they disputed
the Commission’s legal
in essence claiming
that Community law does not prevent Member States from
recognising third country diplomas which fall below the
minimum standards of Directive 78/687/EEC. Secondly, they
claimed that the Commission’s statement about an examin-
ation of Latin-American dentistry diplomas was unwarranted.

2.

The Commission’s interpretation of the applicable law

2.1. The Commission considered that the Directives in ques-
tion do not allow Member States to recognise third
country diplomas which fall below the minimum stan-
dards set out for Community dentistry diplomas. The
complainants
to
Article 1(4) of Directive 78/687, which states that:

contended

referring

view,

this

2.2. It has to be conceded that read literally, this provision
seems to confer absolute freedom to the Member States
as concerns recognition of third country diplomas. How-
ever, the Commission considered that the provision must
be read in its context and in the light of the aims of the
Directive, aims which comprise public health and the free
movement of persons. It considered inter alia that dentists
from other Member States wanting to enter Spain would
be in a less favourable position compared to persons with
dentistry diplomas which have required less time and
effort to obtain.

2.3. Against this background, the Ombudsman found that the
Commission’s interpretation appeared reasoned and well-
founded. However, it has to be recalled that the Court of
Justice is the highest authority on the interpretation of
Community law.

3.

The Commission’s case-examination

3.1. The complainants alleged in substance that the Com-
mission’s statement about Latin-American diplomas in
dentistry was due to faulty examination of the facts and
issues underlying the statement.
this
allegation, they stated that the Commission had failed to
make contact with education establishments in Latin-
America which teach dentistry.

In support of

3.2. Principles of good administration require that the Com-
mission carefully and diligently examines all the relevant
aspects of the individual case in question.

3.3. In examining whether the Commission had complied
with this requirement in this case,
it shall firstly be
observed that the statement in question did not as such
refer to all Latin-American dentists. The statement merely
informed that there were dentists working in Spain,
whose Latin-American dentistry diplomas did not comply
with the minimum requirement for Community dip-
lomas. From the evidence available to the Ombudsman,
it appeared also that Spain — who initially disputed
the infringement proceedings — did not challenge the
Commission conclusion that such dentists had in fact
been authorised to practice on Spanish territory. Spain’s
objections were aimed at
legal
interpretation of the Directives in question, an issue dealt
with above.

the Commission’s

‘Nothing in this Directive shall prejudice any facility
which may be granted in accordance with their own rules
by Member States in respect of their own territory to
... which have not been
authorise holder of diplomas,
obtained in a Member State to take up and pursue the
activities of a dental practitioner.’

3.4. Secondly, it shall be observed that the inspection of the
Commission’s file showed that the Commission was in
possession of a large number of copies of diplomas,
delivered in various Latin-American countries, which did
not conform with the requirements of the Directives.

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3.5. Against this background, the Ombudsman found that
the Commission had not failed to comply with the
requirement to carefully and diligently examine the case.

In April 1996, the Commission wrote to the complainant
stating that it had requested information from the BBC and
that it would contact the complainant in due time.

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
Commission. The Ombudsman therefore closed the case.

HANDLING OF A COMPLAINT UNDER ARTICLE 86 OF THE EC
TREATY

Decision on complaint 536/97/VK against the European Com-
mission

The complainant then tried to meet with Commission officials
responsible for his complaint. The Commission replied that its
officials could not meet with the complainant at the proposed
time.

Against this background, the complainant lodged the com-
plaint with the Ombudsman. He alleged that his case was
being handled in a dilatory and discourteous way by the
Commission. He also alleged avoidable delay and incompet-
ence.

The complaint

The inquiry

In November 1996 and April 1997, Mr C. made a complaint
to the Ombudsman against the European Commission, alleging
that the Commission had not dealt properly with the complaint
he made to it. The background to the complaint was in
summary the following:

The complainant lived in Spain where the British Broadcasting
Corporation (BBC) operates the English speaking pay-television
channel World Service Television (WSTV). The channel
is
broadcast via satellite to viewers throughout Europe. In order
to be able to watch this channel, viewers had to acquire a
decoder and to take out a subscription. Due to a change in the
transmission norm and in the encryption system, viewers
needed to buy new decoders. The complainant considered that
this constituted an abuse of dominant position, contrary to
Article 86 of the EC Treaty.

In November 1992, the complainant therefore made a formal
complaint under Article 3 of Regulation 17/62 to the Com-
mission concerning this abuse of dominant position.

On 28 April 1994, DG IV sent the complainant a ‘provisional
conclusion that his complaint was unjustified’. The complain-
ant replied correcting errors of fact and asking for the case to
be re-examined.

On 4 October 1994, the Commission sent a revised version of
its letter in which it stated that the case was still not justified.
The complainant again rejected this finding. He sent new
evidence to DG IV.

The Commission’s opinion

The complaint was forwarded to the Commission. As regards
the alleged incompetent and dilatory procedure, the Com-
mission stated that DG IV had duly investigated this complaint.
In accordance with Article 11 of Regulation No 17/62,
requests for information were addressed to the BBC on
25 November 1992, 27 January 1993, 11 December 1995
and 16 April 1996. Given the information supplied by the
BBC in response to these requests, the Commission did not
consider it appropriate to adopt a decision to allow an on-site
investigation of the BBC’s offices in this case.

The Commission stated that DG IV wrote to the complainant
on 14 May 1993 informing him that it did not believe that his
complaint was founded. A pre-Article 6 letter was sent to the
complainant on 28 April 1994. In that letter, the Commission
concluded that WSTV/BBC did not hold a dominant position,
and that even if they did, no abuse contrary to Article 86 EC
had been committed.

Thereafter, an Article 6 letter was sent to the complainant on
4 October 1994. The Commission stated that the complainant
contested the Article 6 letter sent to him. Therefore, a formal
decision was being prepared which was to be adopted by the
Commission and sent to the complainant before the end of
the year 1997.

The complainant’s observations

In December 1995, the Commission wrote to the complainant
that it was reconsidering the issue and that the investigations
were continuing.

In his observations, the complainant maintained his complaint.

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Further inquiries

inform the applicant of its reasons and fix a time for the
applicant to submit any further comments in writing.

After due consideration of the Commission’s opinion and the
complainant’s observations, the Ombudsman again wrote to
the Commission. In view of the fact that the Commission had
stated that it would send a formal decision to the complainant
by the end of the year, the Ombudsman inquired whether such
a formal decision had been adopted and sent.

In its reply of 27 November 1998, the Commission stated that
a draft decision rejecting the complaint had been finalised. It
further stated that the decision was expected to be adopted in
the coming weeks. It would then be communicated to the
complainant. Furthermore,
the Commission expressed its
regret that the procedure had taken longer than anticipated.

The Ombudsman’s services then contacted the Commission
by telephone to inquire whether this decision had actually
been sent the complainant. The Commission informed the
Ombudsman’s services that a formal decision had been sent to
the complainant on 30 October 1998. The Ombudsman
received a copy of the decision letter.

4.

5.

6.

The Commission requested detailed information from the
BBC. It then sent a so-called pre Article 6 — letter to the
complainant on 28 April 1994 informing him that it had
concluded that WSTV/BBC did not hold a dominant
position, and even if they did, no abuse contrary to
Article 86 EC had been committed.

The Commission then sent an Article 6 — letter to
the complainant which the complainant contested. The
Commission thereafter had to produce a formal decision
on the matter. The formal decision was adopted and sent
to the complainant. The complainant may challenge this
decision before the Community Courts, if he wishes.

It appeared therefore that the Commission had acted in
accordance with the applicable rules. The Commission
also apologised for the length of the procedure and
adopted a decision which took a final position on the
complainant’s grievances under Article 86 EC. Therefore,
there appeared to be no reason to continue the inquiry
into the claim that the Commission was dilatory.

The decision

Conclusion

Alleged incompetent and dilatory handling of the complaint:

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
Commission. The Ombudsman therefore closed the case.

1.

2.

3.

The complainant lodged a complaint with the Com-
mission alleging an abuse of dominant position by the
BBC in relation to its pay-television channel WSTV in
Spain, contrary to Article 86 EC. The complaint was
registered. The Commission then informed the complain-
ant that his complaint was not founded. The complainant
contested this conclusion. The facts of the case remained
disputed. The complainant stated that he wished to
receive a formal decision from the Commission on the
subject. The complainant alleged that his case was
handled in a dilatory and incompetent way by the
Commission.

The procedural framework within which the Commission
assesses these complaints is determined mainly by the
Council Regulation No 17/62 and Commission Regu-
lation No 99/63.

DISCLOSURE OF ASSESSMENT REPORT

Decision on joined complaints 620/97/PD and 306/98/PD against
the European Commission

The complaints

In June 1997, Mr C. MEP submitted a complaint to the
European Ombudsman, on behalf of the Swedish newspaper
‘Västerbottens-Kuriren’. The complaint concerned the European
Commission’s refusal to disclose an assessment report pro-
duced by a consultancy firm for the Commission in the context
of a state aid investigation against Sweden.

The Commission is required to examine thoroughly all
complaints lodged. Article 6 of Regulation No 99/63
provides that if the Commission considers that there are
insufficient grounds for granting the application, it shall

In March 1998, the Ombudsman received a complaint which
concerned access to the same report, complaint 306/98/PD by
two other MEPs, Messrs S. and W. To deal with the complaints
as efficiently as possible, the Ombudsman decided to treat
them jointly.

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The background to the complaints was in brief the following:
The report to which the complainants wanted access was
drawn up by a consultancy firm, Price Waterhouse, at the
Commission’s request. The report concerned a Volvo factory
in the north of Sweden and the Commission used it in its
investigations to establish whether it was compatible with the
Common Market that Sweden gave State aid to the factory.

The complainants’ observations

The complaints were maintained. The complainants added
that the Commission could have decided to disclose a copy of
the report without
thus
allowing partial disclosure.

the commercially sensitive data,

In refusing access, the Commission provided the following
grounds:

— Firstly, business information provided to the Commission
for the purpose of producing the report had been
explicitly labelled ‘secret’ by the Swedish authorities.

— Secondly, the report was part of an investigation conduc-
ted by the Commission. Releasing the report could be
damaging to that investigation since the report would be
placed out of its context.

The complainants considered that these grounds did not
warrant a refusal to give access. In particular, they indicated
and provided evidence that, at the moment of the refusal, the
Swedish authorities and the Volvo factory did not any longer
request confidentiality in respect of information provided for
the report.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission stated that the report contained
business secrets and therefore could not be disclosed on the
ground of protecting commercial and industrial secrecy;
ground upon which the Commission may refuse access under
its Decision 94/90 on public access to its documents.

The Commission also considered that the secrecy requests by
the Swedish Government and the Volvo company obliged it
not to disclose the report.

Finally, the Commission put forward that disclosure would be
prejudicial to the Commission’s investigation and the rights of
defence.

Further inquiries

After careful consideration of the opinion and the observations,
the Ombudsman decided that the report should be inspected.
The purpose of the inspection was to help ascertaining whether
the Commission’s refusal to give access had been made in
accordance with principles of good administration, including
the rules laid down by Decision 94/90. The inspection revealed
that the report, apart from one page which contained the
consultant’s evaluations of the aids scheme, only contained
factual elements submitted by the Swedish authorities and the
Volvo factory.

The Ombudsman’s efforts to achieve a friendly solution

The Ombudsman considered that the Commission’s refusal to
release the report constituted a prima facie instance of
maladministration. He therefore asked the Commission to
review its position with a view to a friendly solution, observing
the procedure for which the report had
inter alia that
been produced was now closed and that the requests for
confidentiality had been withdrawn.

In its reply, the Commission agreed to disclose the factual
information contained in the report. The Commission could
not, however, agree to disclose the evaluation part of the
report because confidentiality was needed to enable it to
conduct its investigation tasks properly. The fact that the
investigation in question had been concluded, and the relevant
decision taken, was in the Commission’s opinion not a
determining factor.

In their replies to the Ombudsman, the complainants expressed
satisfaction over the fact that the factual part of the report had
been disclosed. However, they maintained that the Com-
mission should also give access to the evaluation part of the
report.

The decision

Partial disclosure of the report

The complainants had requested access to the consultancy
report in question. The inquiries showed that the request was
justified as concerns most of the report. The Ombudsman
therefore made a proposal for a friendly solution. The Com-
mission accepted this and released most of the report, main-
taining the confidentiality of the one page evaluation part of
the report. Under Community law as it presently stands, the

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11.9.2000

Commission appears to be entitled to refuse access to the
evaluation part of the report (1). Therefore, the Commission
does not appear to have failed to comply with any rule or
principle binding upon it. It should be recalled, however, that
the Court of Justice is the highest authority on interpretation
of Community law.

The inquiry

The Commission’s opinion

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
Commission. The Ombudsman therefore closed the case.

DELAY IN PROCESSING COMPLAINT ON STATE AID

Decision on complaint 632/97/PD against the European Com-
mission

The complaint

In July 1997, Mr M. made a complaint to the Ombudsman on
behalf of two Dutch agricultural organisations and three
individual persons. The complaint concerned the Com-
mission’s handling of a complaint lodged with it in 1994 about
a Dutch body governed by public law, the Landbouwschap. By
letter of 11 October 1994, the Commission informed the
complainant that the complaint had been registered as a
complaint against the Netherlands under number 94/4890/SG
(94)A/18715. The complaint was attributed to DG VI for
examination in the light of the Treaty provisions concerning
State aid.

The complaint was forwarded to the Commission.
opinion the Commission stated the following:

In its

The complaint concerned all the activities of the Landbouwsch-
ap, a horizontal agricultural organisation in the Netherlands.
The examination of the complaint required detailed assessment
of the different aid-schemes of the Landbouwschap and the
parafiscal taxes which finance them. There are more or less
80 schemes financed by roughly the same number of parafiscal
taxes. The work involved by this examination was quite
considerable. In comparison it should be mentioned that the
total number of state aid cases dealt with by the unit
responsible of DG VI in the Commission in 1995 was 276 and
in 1996 336.

The files are classified into two categories: a) Notified aids and
b) non notified aids. The examination of notified aids is a
priority as the Court of Justice has imposed a time limit of two
months for the preliminary examination, cf.
judgement of
11 December 1973 in case C-10/73, Lorenz, [1973] ECR 1471.

The complaint in question concerned non notified aid. This
explained the long time taken for the examination, taking into
account the Commission’s need to prioritise because of limited
staff resources and the existing workload. This implies that the
examination of non notified aid can only be dealt with within
the limits of the technical possibilities of the service concerned.

However since the lodging of the complaint the Commission
had examined ten aid schemes which in the meantime had
indeed been notified by the Dutch authorities and which were
covered by the complaint. In these cases the Commission had
not found any violation of the Treaty.

As the Commission did not provide the complainant with
any information on the processing of the complaint, the
complainant
lodged the complaint with the European
Ombudsman. In his complaint, the complainant put forward
that he appreciated that the Commission operates under great
pressure of work, but that he considered it unacceptable
that
the Commission failed to give him any substantive
communication concerning his complaint over a period of
three years.

By letter of 5 December 1997, of which the Ombudsman
received a copy, the Commission informed the complainant
about the name and telephone number of the official in charge
of the file so that the complainant could make contact if he so
wished. The Commission also stated in its letter that it would
be useful if the complainant indicated in more detail which
schemes of the Landbouwschap he considered to violate
Community law.

The complainant’s observations

(1) See judgment of 5 March 1997 in case T-105/95, WWF v
Commission, [1997] ECR II-313 and the order of the President of
the Court of First Instance of 3 March 1998 in case T-610/97 R,
Carlsen and others v. Council, [1998] ECR II-485.

In his observations the complainant stated that the Com-
mission’s opinion was unsatisfactory as it did not bring any
news on the examination of his complaint.

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Further inquiries

After careful consideration of the Commission’s opinion and
of the complainant’s observations the Ombudsman addressed
the Commission again. In his letter, the Ombudsman stated
that the Commission had repeatedly recognised that com-
plaints from individuals remain the most important source on
which the Commission bases its task of monitoring the
application of Community law. As concerns complaints related
to Article 169 of the EC Treaty, the Commission had recog-
nised that complaints should normally be dealt with within
one year from registration. The respect of this commitment
seemed of particular importance in case of State aids, as
the Commission is the sole instance competent to assess
compatibility with the EC Treaty. Against this background, the
Ombudsman asked to know which measures the Commission
envisaged taking in order to reply to the complainant’s original
complaint.

for

instance

concerns

complaints

As
relating to
Article 169 of the EC Treaty, the Commission acknowl-
edged that the said principles imply that the complaint
shall be processed within a maximum period of one year,
unless there are special reasons.

2.

In the field in question in this case, that is State aids, it
shall be observed that the Commission has exclusive
jurisdiction to assess the compatibility of State aid with
the Treaty. Thus, if citizens consider a State aid to be
incompatible with the Treaty, they have nobody else to
turn to for an assessment than the Commission. In the
interest of good administration and the fundamental rules
of the Treaty relating to State aid, the Commission must
therefore conduct a diligent examination of complaints
alleging aid to be incompatible with the Treaty, within
reasonable time.

The Commission’s second opinion

3. As concerns notified State aid, the Court of Justice has
held that the Commission shall conduct its preliminary
investigation of the aid within two months.

In its second opinion, the Commission stated that the time
limit of one year for processing complaints concerning
Article 169 could not generally apply to complaints related to
State aid. However, the Commission apologised for the lack of
communication with the complainant which had occurred in
the processing of the complaint and it stated that it would
soon again communicate to the complainant the state of the
file. This was done by a letter of 23 September 1998 of which
the Ombudsman received a copy. In the letter, the Commission
communicated the name and telephone number of the new
official in charge of the file. Furthermore, it reiterated that it
would be helpful if the complainant could indicate in more
detail which schemes of the Landbouwschap he considered to
violate Community law. The Commission would then give
priority to the examination of these schemes.

The complainant’s further observations

No observations were received on the Commission’s second
opinion.

The decision

The delay in processing the complainant’s original complaint

1.

Principles of good administration require the Commission
to deal diligently and within reasonable time with sub-
missions from the citizens. The high standards that
citizens are entitled to expect from the Community
administration do not permit that cases linger on for
years and that the citizens concerned are left in the dark
as concerns the dealings with their submission. Thus, the
Commission has also an obligation to keep the citizens
informed.

4. As concerns non notified State aid, there appears to be
no imperative reasons why the time limit for examining
complaints concerning such aid should in principle be
different from the time limit of one year that applies to
complaints related to Member States’ breach of their
obligations under Community law, Art 169 complaints.
Thus, the maximum time limit for processing complaints
concerning non notified Stated aid must be one year,
unless there are special reasons.

5.

In this case, three years had passed since the lodging of
the original complaint with the Commission, without the
complainant receiving any communication concerning
the processing of his complaint. This is not in accordance
with principles of good administration.

6. However, it also appeared from the Commission’s second
opinion that the Commission had apologised for this,
that it had established communication with the complain-
ant and taken steps to ensure the proper processing of
the file. Against this background, the Ombudsman found
that there were no reasons for inquiring further into the
complaint.

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to be no maladministration by the European
Commission. The Ombudsman therefore closed the case.

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ANTI-COMPETITIVE SUBVENTION OF THE PIG PRODUCTION

Decision on complaint 1007/97/IJH against the European Com-
mission

financing set out in Regulation 866/90, the British request
to withdraw the scheme in England was then allowed by
Commission Decision 96/388/EC.

The complaint

The complainant’s observations

The complainant claimed that the Commission deliberately
allowed a situation to develop which is anti-competitive and
distorts market
the
Commission did this by allowing the United Kingdom to
withdraw from an agricultural investment subsidy scheme,
with the result that pig production is now subsidised in other
Member States but not in the UK.

forces. According to the complaint,

The inquiry

The Commission’s opinion

In observations on the question of prior administrative
approaches, the complainant stated that Robin Teverson MEP
had repeatedly sought clarification from the Commission on
the issue of subsidies for pig production.

As regards the substantive issue, the complainant pointed out
that
the Commission appeared only to have considered
whether the UK’s revised Single Programming Document met
the requirements for Community co-financing. In his view, the
Commission should also have been concerned that, through
the adoption of Decision 96/388 approving the UK’s proposal,
it was setting up a market distortion.

The complaint was forwarded to the Commission. The Com-
mission stated that the complaint had not been preceded by
any administrative approaches to it. Nonetheless, it provided
the following information:

Further inquiries

Regulation 866/90 (1) concerns the improving of the pro-
cessing and marketing conditions for agricultural products. It
permits Member States to propose schemes to improve the
structures of various product sectors and to request Com-
munity co-financing up to 50 %.

By Decision 94/836/EC (2) the Commission approved a Single
Programming Document for Community structural measures
for improving the processing and marketing conditions for
agricultural products in the United Kingdom between 1994
and 1999.

On 15 December 1995, the UK authorities presented a request
to withdraw the scheme in England after 31 March 1996.
According to the UK authorities, this request was based on the
need to contain UK public expenditure and to fund other
priorities.

Before carrying out the procedures to accept this request, the
Commission Services asked the UK authorities to provide full
clarification on the matter.

In February 1996,
the United Kingdom presented to the
Commission an updated Single Programming Document.
As the Commission considered that the revised Document
the requirements for Community co-
continues to meet

(1) 1990 OJ L 91/1.
(2) 1994 OJ L 352/12.

After careful consideration of the Commission’s opinion and
the complainant’s observations, it appeared that two matters
were in dispute between the parties:

(i) whether the complaint was preceded by the appropriate
administrative approaches, as required by Article 2 (4) of
the Statute of the Ombudsman;

(ii) whether Decision 96/388 took possible effects on compe-

tition into account.

As regards (i), the Ombudsman informed the Commission that
he would continue to deal with the complaint for reasons
which are explained in part 1 of the decision below.

As regards (ii), the Ombudsman asked the Commission to
inform him of whether it considered possible effects on
competition in the procedure leading to the adoption of
Decision 96/388 and, if so what steps it took to ensure that it
was adequately informed on the matter.

The Commission answered that the procedure leading up to
the adoption of Decision 96/388/EC permitted it to take into
account the potential effects of the measure, including those
on competition and the market. The division dealing with
competition in agriculture and the market division for pigmeat
were consulted and, furthermore, the decision was in accord-
ance with the opinion of the Committee on Agricultural
Structures and Rural Development (the STAR Committee).

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After considering the Commission’s answer, the Ombudsman
asked the Commission to provide detailed evidence as to how
competition issues were taken into account in the procedure
leading to the adoption of Decision 96/388/EC.

In reply, the Commission forwarded to the Ombudsman a
detailed account of the various stages in the procedure leading
to the adoption of Decision 96/388/EC together with copies
of the documents concerned.

The complainant responded by stating, in summary, that the
documents showed that the Commission took proper advice,
but that the advice was erroneous insofar as the effects of the
action taken could not have been known and the effect on the
British pig industry was immense.

The decision

1.

Prior administrative approaches

1.1. According to Article 2 (4) of the Statute of the Ombuds-
man, a complaint ‘must be preceded by the appropriate
administrative approaches to the institutions and bodies
concerned.’ By giving the institution or body concerned
the opportunity to resolve problems that could give rise
to a complaint, Article 2 (4) is an important safeguard for
efficiency.

1.2. In the standard form on which the complaint was
submitted, the complainant referred to discussions with
Commission officials. In its opinion, however, the Com-
mission stated that the complainant had not previously
addressed himself to the Commission. The complainant’s
observations referred to previous contacts with the
Commission by the complainant’s MEP, Mr Robin
Teverson.

1.3. The Ombudsman informed the Commission that he
would continue to deal with the complaint, since further
administrative approaches were not an appropriate way
to deal with the substantive questions which remained
unresolved following the Commission’s opinion and the
complainant’s observations.

2.2. The Ombudsman’s inquiry revealed that in 1994 the
Commission approved an agricultural investment subsidy
scheme for the UK, (1) jointly funded by the UK authorities
and the Community under Regulation 866/90. (2)
In
1996, by Decision 96/388 (3), the Commission approved
a request from the UK authorities to withdraw the scheme
in England. The UK authorities based the request on the
need to contain public expenditure and to fund other
priorities in England.

2.3. The Ombudsman’s inquiry also revealed the details of the
Commission’s procedures leading to the adoption of
Decision 96/388: the relevant division of DG VI prepared
a working document and draft decision, on which there
was consultation with other divisions of DG VI, including
those responsible for competition and for the pigmeat
sector and with other Directorates General and the Legal
Service. The matter was then dealt with through an oral
procedure at
the Commission’s weekly meeting and
authorised to be adopted under delegated powers, after
transmission to the Committee on Agricultural Structures
and Rural Development (STAR Committee), which gave
a unanimous favourable opinion.

2.4. The Commission forwarded to the Ombudsman the
documents considered in the above-mentioned pro-
cedures including:
the working document and draft
decision; all the notes of agreement from the Commission
services consulted; the documents prepared for the oral
procedure of the Commission; and the minutes of the
relevant meeting of the STAR Committee.

2.5. The complainant accepted that

the above-mentioned
documents showed that the Commission took proper
advice, but considered that the advice was erroneous
insofar as the effects of the action taken could not have
been known and the effect on the British pig industry
was immense.

2.

The adoption of Decision 96/388/EC

2.1. The complainant claimed that the Commission deliber-
ately allowed a situation to develop which is anti-
in that pig
competitive and distorts market
production is subsidised in other Member States but not
in the UK.

forces,

(1) Approval was given by Commission Decision 94/836/EC (1994
OJ L 352/12) approving a Single Programming Document for
improving the processing and marketing conditions for agricul-
tural products in the United Kingdom between 1994 and 1999.
(2) Council Regulation 866/90 of 29 March 1990 on improving the
processing and marketing conditions for agricultural products,
1990 OJ L 91/1.

(3) Commission Decision 96/388/EC of 17 June 1996, 1996 OJ

L 155/58.

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11.9.2000

2.6. Even if the complainant’s assessment of the consequences
of the withdrawal of processing and marketing grants in
England is correct, the Ombudsman’s inquiry revealed no
evidence that the Commission’s adoption of Decision
96/388/EC breached any rule or principle binding upon
it. Consequently, there appears to be no evidence of any
maladministration
of Decision
the
96/388/EC.

adoption

in

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appears to have been no maladministration by the
Commission. The Ombudsman therefore closes the case.

Further remark by the European Ombudsman

The Ombudsman notes the complainant’s continued concern
that the withdrawal of investment subsidies, at the request of
the UK government, has caused the pig industry in England to
become uncompetitive, as compared to the pig industry in
other Member States where subsidies continue to be available.
The Ombudsman also notes that the complainant has the right
to petition the European Parliament on any matter which
comes within the Community’s fields of activity and which
concerns him directly.

REGIONAL DIFFERENCES IN ABILITY TO MEET A TENDER CRI-
TERION

Decision on complaint 1037/97/VK against the European Com-
mission

The complaint

In November 1997, Mrs P. made a complaint to the Ombuds-
man alleging that the Commission wrongly refused the bid she
submitted in a tender procedure for the award of translation
contracts.

The complainant, a professional
translator, applied for a
translation contract under the Commission’s programme of
calls for tender. Her application was refused on the grounds of
non compliance with point 13f of the admissibility criteria (1).
Point 13f required applicants to provide evidence of having
translated at least 1 500 pages into the target language during
a specified 3-year period.

The complainant put forward that this requirement could not
be met by translators from the Eastern Länder in Germany as
they had less opportunity to reach such a high number of

(1) Restricted tender of the European Commission, External Trans-

lation Unit (97/S 62 — 36298/FR).

translated pages. According to the complainant, the export
oriented regional market did not have a high demand for
translations from French into German.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission. In summary,
the Commission’s opinion was as follows:

The Translation Service of the Commission published a call
for tenders for translation services into German in order to
conclude a new set of framework contracts and to continue
to meet its needs for external translation services without
interruption.

In order to select the applicants, the awarding authority had to
establish the technical and economic competence of those
who responded to the call for tenders. The selection criteria
set out
the notice constituted a set of
requirements which reasonably could be met by an established,
full-time professional translator. Applicants had to meet all the
requirements under point 13 of the tender notice in order to
be considered for selection.

in point 13 of

Any applicant failing to supply full and satisfactory infor-
mation under any of the sub-points of section 13 was rejected.

The External Translation Unit keeps details of all applicants on
file, and encourages them to update their files with any new
information which may be relevant. In this way they may be
informed of any future calls for tenders which the Commission
may publish for the provision of translation services into its
official languages.

The complainant’s observations

In her observations, the complainant maintained her com-
plaint.

The decision

1.

2.

3.

Point 13f of the selection criteria required applicants to
provide evidence of at least 1 500 pages translated into
German during a specified 3-year period.

It is for the Commission to select the technical criteria for
the award of contracts. The Commission explained its
reasoning for adoption of the criterion in question. The
Ombudsman’s inquiry revealed no evidence to suggest
that the criterion was not objectively justifiable.

The complainant claimed that the Commission should
not have used the criterion because of differences in the
ability of contractors from different regions to meet to
criterion.

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4.

The Ombudsman is not aware of any legal rule or
principle which would prevent the Commission from
using an objectively justifiable criterion in a call for tender
because of differences in the ability of contractors from
different regions to meet the criterion.

had presented to the Environment Secretariat General of the
Council of Europe (2).

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
European Commission. The Ombudsman therefore closed the
case.

DECISION TO CLOSE THE FILE ON AN ARTICLE 169 (NEW
ARTICLE 226) COMPLAINT

Decision on complaint 1060/97/OV against the European Com-
mission

The complaint

In November 1997, Mrs V., President of Medasset (‘Mediter-
ranean Association to Save the Sea Turtles’) made a complaint
to the Ombudsman concerning the way the Commission dealt
with her complaint of 15 June 1994 alleging violation by the
Greek government, on the island of Zakynthos, of Council
Directive 92/43/EEC and of national and international law on
the preservation of sea turtles.

On 15 June 1994 Medasset lodged a complaint to the Com-
mission about violation by the Greek government,
in the
Laganas Bay of the Ionian island of Zakynthos, of Directive
92/43 (1) with regard to the preservation of sea turtles (Caretta
caretta). The complainant particularly alleged that the Greek
government failed to transpose Directive 92/43 into Greek
national
law before the two years deadline stipulated in
the Directive. In its complaint, Medasset equally drew the
Commission’s attention to various violations by the Greek
government of national and international law, more particu-
larly the Convention on the Conservation of European Wildlife
and Natural Habitats (the ‘Bern’ Convention, Council of
Europe). The complainant renewed its complaint each year
since 1994 and kept DG XI (Environment) of the Commission
regularly informed about
the situation in Zakynthos by
sending photographic evidence and special follow-up reports
on the situation of the sea turtles in Zakynthos which Medasset

On 26 April 1996, Medasset received a letter from the
Commission according to which the Commission was satisfied
with the efforts made by the government to protect the Caretta
caretta in Zakynthos, given that significant steps for the
substantial protection of the sea turtles in the Laganas Bay had
been taken. Therefore the handling of the complaint had been
suspended. By letter of 11 March 1997 the complainant was
finally informed by the Head of the Legal Affairs Unit of
DG XI - B, that the file on the case had been closed.

The complainant
therefore wrote to the Ombudsman in
November 1997 alleging that the decision of the Commission
not to take legal action against the Greek government in this
case was unjustified and arbitrary. Secondly, the complainant
alleged that the period between the registration of the com-
plaint and the letter by which the Commission informed the
complainant that it would not start proceedings against the
Greek government was too long (more than two and a half
years). Finally, in June 1997 Medasset put forward different
questions on the matter to Commissioner Bjerregaard, respon-
sible for environment, but never received a reply. The com-
plainant enclosed extensive documentation on the subject,
including the different follow-up reports presented to the
Council of Europe.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission in Decemb-
er 1997. In its comments, the Commission first pointed out
that it had acted in accordance with the undertakings it had
made in the framework of the Ombudsman’s own initiative
inquiry (ref. 303/97/PD, Commission’s reply dated 24 July
1997), even if the matter of the complaint predated those
undertakings. The Commission particularly stated that it gave
reasons to the complainant why the file on the complaint had
been closed. The Commission described the handling of the
complaint as follows:

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora, OJ 1992 L 206/7.

(2) Different follow-up reports presented by Medasset to the 14th,
15th, 16th and 17th meetings of the Standing Committee of the
Convention on the Conservation of European Wildlife and
Natural Habitats (Bern Convention), concerning marine turtle
conservation in Zakynthos (Laganas Bay), Greece.

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The Commission registered the complaint letter of 15 June
1994 as a formal complaint (ref. P 94/4667). The complaint
alleged failure of the Greek government to comply with
Directive 92/43/EEC and the Bern Convention (1) with regard
to the conservation of sea turtles in the Laganas Bay in
Zakynthos. Since the registration of the complaint the Com-
mission had actively followed the case through official corre-
spondence, package meetings and within the framework of the
Bern Convention.

After having gathered the relevant information, including from
the Council of Europe, the Commission wrote on 3 August
1994 to the Greek authorities drawing their attention to the
allegations of the complainant. Although it contained positive
elements indicating concrete turtle protection measures being
taken, the response of the Greek authorities dated 23 Novemb-
er 1994 did not satisfy the Commission. On 21 June 1995
Commissioner Bjerregaard therefore sent a letter to the Greek
Minister for Environment with a request
for immediate
measures to be taken. In the summer of 1995, the Minister
officially announced a series of concrete measures. After a new
letter of the Commission dated 20 December 1995, the Greek
authorities replied on 27 February 1996 by informing the
Commission of measures which had already been implemented
(amongst which the closing of illegal establishments) and
announcing additional measures for the future (amongst them
the creation of a marine park).

On 18 April 1996 the Commission informed the complainant
about the content of the letter by the Greek authorities and
asked for comments on it. The complainant was not satisfied
with the measures which it considered insufficient. Another
organisation which had also complained made overall positive
comments on the development of the situation. The positive
developments referred to by the Greek authorities were also
confirmed by the results of a programme which dealt with the
protection of Caretta caretta and which was financed by the
Commission.

After this reply and further discussions during a package
meeting held in Athens, the Commission decided to close the
file for lack of evidence of breach of Community law, but
continued to pursue the matter through bilateral contacts
with the Greek authorities in order to ensure the concrete
implementation of the measures announced, in particular the
creation of the marine park.

By letter dated 11 March 1997, the complainant was informed
about the decision to close the file, as well as of the reasons
which led to that decision. The Commission considered that it
gave the complainant all the reasons which were relevant for
i.e. those related to the nature of the legal
its decision,
requirements and to the nature of the information available to

it. At the same time the Commission further pursued the case
with the Greek authorities by letter of 14 March 1997
requesting additional information on the implementation of
protection measures and on the progress in the creation of the
National Marine Park in the Laganas Bay.

On 21 July 1997, the Greek authorities communicated a
Ministerial Decision to the Commission approving a specific
environmental study for Laganas Bay and a draft Presidential
Decree creating the National Marine Park of Zakynthos.
Further information on the progress of adopting the Presiden-
tial Decree was forwarded to the Commission on 22 September
1997. The Commission services studied the information
provided by the Greek authorities and considered that the
Presidential Decree positively addressed the eco-system of the
area as a whole.

The complainant who was informed about these developments
by the letter of 26 November 1997, was invited to provide the
Commission with any relevant element showing a breach of
Community environmental law, in which case the Commission
would launch the Article 169 infringement procedure.

Against this background the Commission rejected the three
allegations by the complainant. Firstly, as regards the allegation
that the decision not to take legal action against the Greek
authorities was unjustified and arbitrary, the Commission
stated that it was diligent in dealing with the issue of turtle
conservation and that it kept the file open until it was satisfied
that substantial conservation measures were taken and that
therefore there was no breach of Community law. With regard
to the second allegation, the Commission considered that
during the two and a half year period between the complaint
registration and the decision not to start infringement proceed-
ings, it had actively pursued the matter which was a complex
and difficult nature conservation dossier, where precipitate
action is inappropriate. Thirdly, as regards the alleged failure
to reply by Commissioner Bjerregaard, the Commission point-
ed out that the Commissioner delegated this responsibility to
her services which kept the complainant very well informed of
the developments, in particular in the letter of 26 November
1997 informing of the latest evolutions since the meeting with
the Commissioner in June 1997.

The complainant’s observations

(1) Convention on the conservation of European wildlife and natural
habitats, done at Bern on 19 September 1979, OJ 1982 L 38/1.

In January 1998,
further to the Commission’s letter of
26 November 1997 asking the complainant to provide the

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Commission with new information disclosing an possible
breach of Community law, the complainant sent the Com-
mission a copy of its report for the meeting of the Standing
Committee of
the Bern Convention (Council of Europe,
December 1997). The complainant observed that the situation
of the sea turtles in Zakynthos had not changed in three years,
because the illegal constructions were still there and illegal
taverns operated, and that the National Marine Park only
existed on paper. The Presidential Decree had still not been
adopted. The complainant annexed to its comments a copy of
a report by the Sea Turtle Protection Society of Greece which
was very much in line with its own report. The complainant
further stated that DG XI’s actions were solely based on the
Greek government’s announcements and completely ignored
the actual facts in Zakynthos and the position of the Bern
Convention Standing Committee. Concluding that it was clear
that the Greek government was in breach of Directive 92/43
and of the Bern Convention, the complainant asked to keep
the file open.

The complainant sent other information to the Commission
on 29 June, 10 and 14 July 1998, drawing the Commission’s
attention to the complete lack of progress in the situation in
Zakynthos and to the expiry of the 25 March 1998 deadline
for the establishment of the National Marine Park as agreed
between the Greek government, the Bern Convention Standing
Committee and the EU. The Commission (DG XI — D/2)
carried out an on the spot investigation in July 1998, but
according to the complainant the local authorities had taken
measures in order to present a false and positive situation,
which was contradicted by photographic evidence presented
by the complainant to the Commission. On 6 October 1998
the complainant sent to the Ombudsman a copy of its latest
report presented to the 18th meeting of the Bern Convention
Standing Committee.

Further inquiries

In order to know which follow-up the Commission had
reserved to the new information sent by the complainant
and to the on the spot investigation carried out in July 1998,
the Ombudsman’s office contacted the responsible unit of
the Commission (DG XI — D/2). The Commission informed
the Ombudsman’s office that, further to the on the spot
it decided in October 1998 to
investigation of July 1998,
open ex officio a new infringement procedure against the
Greek authorities, which was communicated in a press
release. The Commission informed the complainant of the
new infringement procedure in December 1998 at the 18th
meeting of the Bern Convention Standing Committee in
Strasbourg.

The decision

1.

The allegation that the decision to close the file on the
complaint was unjustified and arbitrary

the complaint

1.1. The complainant alleged that the Commission’s decision
to close the file on the complaint, and not to take legal
action against the Greek authorities, was unjustified and
arbitrary. This aspect of
thus alleged
maladministration in the administrative procedure for
dealing with a complaint for infringement of Community
law by a Member State (Article 169 procedure). When
the Commission takes a decision to open an infringement
procedure or to close the file, it has the duty to state the
reasons for this decision and to communicate those
reasons to the complainant. This obligation to give
reasons for a decision can also be subject of supervision
by the Ombudsman. The Ombudsman’s inquiry into this
part of the complaint therefore examined whether the
Commission duly gave reasons for its decision to close
the file on the complaint.

1.2. The complainant was informed about the decision to
close the file by the letter of the Head of the Legal Affairs
Unit of DG XI – Directorate B, dated 11 March 1997. The
Ombudsman noted that, in this detailed letter of two
pages, the Commission first informed the complainant
that it took into consideration the new commitments
undertaken by the Greek authorities at the meeting in
Athens in May 1996. The Commission further evaluated
the information provided by the complainant in a letter
to Commissioner Bjerregaard dated 17 February 1997, as
well as other information available to the Commission’s
services.

1.3. The Commission decided that those elements did not
disclose a breach of Community law. In particular, the
Commission took account of the fact that the Greek
authorities had taken a range of concrete measures to
protect the breeding and nesting places of the sea turtle
in Zakynthos. The letter contained a description of those
measures.

1.4. As regards the construction of the Marine Park, the
Commission referred to the obligation which the Greek
authorities undertook to finish the works before
25 March 1998. The Commission further stated that it
can only supervise that the Greek authorities comply
with the obligations of Directive 92/43, but that it can
not intervene in the form of the implementing measures
which is a matter of national competence.

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1.5. The Commission finally informed the complainant that
DG XI would be following the progress in the implemen-
tation of the measures and, in case no progress was made,
initiate infringement proceedings. The letter concluded
by stating that the complainant would be kept informed
about the outcome of the case.

1.6. It appeared from the above that the Commission had
duly given reasons for its decision to close the file and
had informed the complainant in a detailed manner of
those reasons. Moreover, the Commission decided to
open ex officio an infringement procedure against the
Greek authorities after the on the spot investigation. The
Commission informed the complainant
in Decemb-
er 1998 of this decision. The Commission had thus acted
within the limits of its legal authority and there appeared
to have been no maladministration.

2.

The alleged excessive time period between registration
of the complaint and the decision to close the file

2.1. As regards the allegation that the time period between
the registration of the complaint and the decision to close
the file was too long, the Commission observed that it
was evident from the details it furnished that during this
time it had actively pursued the matter. The Commission
also drew the attention to the fact that, in complex and
difficult nature conservation cases, precipitate action is
often inappropriate.

2.2. The Ombudsman noted that, as regards this aspect of
the Article 169 procedure, the Commission has, in its
comments in the framework of the Ombudsman’s own
initiative inquiry 303/97/PD, observed that, under its
internal rules of procedure, a decision to close a file
without
taking any action or a decision to initiate
official infringement proceedings must be taken on every
complaint within a maximum period of one year from
the date it was registered, except in special cases, the
reasons for which must be stated (1). Those reasons may
relate to the considerable time taken for discussions and
exchanges with national authorities.

2.3. In the present case, where the decision to close the file
was taken after a period of nearly 3 years, it appeared
that the Commission had provided sufficient justification
for this long period. The Ombudsman observed that the
complaint was indeed a complex and difficult case
about nature conservation. It appeared from both the
information provided by the complainant and the details
contained in the Commission’s observations
that,
between July 1994 and March 1997, the Commission
had actively been inquiring into this complaint, and

(1) 303/97/PD, reported in the European Ombudsman’s Annual

Report for 1997, p. 272.

for information on the measures taken.

involved also the complainant in its inquiry. In particular,
the Ombudsman noted that, after having registered the
complaint and having gathered the relevant information,
including from the Council of Europe, the Commission
wrote in August 1994 to the Greek authorities, which
answered in November 1994. Dissatisfied with the
response from the Greek authorities, the Commission
wrote again in June 1995 and December 1995 with a
request
In
November and December 1995 correspondence was
exchanged between Commissioner Bjerregaard and the
complainant who remained also in close contact with
DG XI. In February 1996 the Greek authorities informed
the Commission about the measures already implemented
and additional measures to be taken. In April 1996 the
Commission informed the complainant, in a three page
letter, of those measures and requested comments. In
June 1996 the complainant presented observations to the
Commission.

2.4. After the complainant’s reply and discussions during the
meeting in Athens in May 1996, the Commission finally
decided to close the case and informed the complainant
of its decision in March 1997.

2.5. It appeared thus from the above that, given the many
exchanges of information which took place between the
Commission, the Greek authorities and the complainant,
the long period between the registration of the complaint
and the decision to close the file could not be considered
as an instance of maladministration.

3.

The alleged failure to reply by Commissioner Bjerre-
gaard

3.1. As regards the allegation of the complainant that Com-
missioner Bjerregaard did not reply in writing to questions
which were put to her during her visit in Athens in June
1997, the Commission observed that the Commissioner
delegated this responsibility to her services which kept
the complainant very well informed of the developments,
in particular by the letter of 26 November 1997.

3.2. The Ombudsman noted that the complainant had indeed
received a reply from the Commission services in the
letter of 26 November 1997. In this letter, which refers
explicitly to the questions raised in June 1997 to the
attention of Commissioner Bjerregaard, the Commission
informed the complainant of the latest developments
(correspondence with the Greek authorities in March,
July and September 1997) and invited the complainant

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to provide the Commission with any relevant new
information disclosing an eventual breach of Community
law. Therefore no instance of maladministration was
found with regard to this aspect of the complaint.

The inquiry

The Commission’s opinion

Conclusion

The complaint was forwarded to the Commission.
In its
opinion, the Commission repeated its view that it was bound
to act in accordance with its undertaking in the call for
Proposals to keep all tender proposals confidential.

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
Commission. The Ombudsman therefore closed the case.

The complainant’s observations

The complainant maintained his complaint.

CONFIDENTIALITY IN TENDER PROCEDURE

Decision on complaint 1086/97/PD against the European Com-
mission

The decision

The complaint

In November 1997, Mr L. complained to the Ombudsman
against the Commission’s refusal to provide him with copies
of eight successful proposals which had been submitted in
connection to the SAVE II Programme.

The background to the complaint was the following: In 1997
the Commission published a call
for proposals for the
promotion of energy efficiency in the European Community
under a Community energy saving programme, ‘SAVE II’. The
complainant submitted a proposal which was not selected by
the Commission. When informed that his project had not been
selected, he wrote to the Commission requesting copies of
eight successful proposals submitted under the procedure. The
complainant’s letter to the Commission indicated that he
wished to assess whether the successful proposals were as
cost-effective as his own project or more so.

In its reply to the complainant, the Commission referred to
the call for proposals, published in the Official Journal, which
stated that:
‘Information given to the Community relating to a
proposal application or the contract will be treated as confidential.’

On this basis, the Commission considered itself unable to
provide the complainant with copies of the other tenderers’
proposals.

In his complaint to the Ombudsman, the complainant claimed
that the Commission had wrongly refused him access to the
eight successful proposals, and had wasted public money by
selecting unduly expensive projects.

1.

2.

As concerns the complainant’s first allegation, it was
clear that the Commission in its call
for proposals
promised possible applicants that the proposals would
be confidential. The Commission was bound to respect
that undertaking. The Ombudsman therefore found that
the Commission’s compliance with that undertaking
did not constitute an instance of maladministration.
However,
the Commission made this
undertaking led the Ombudsman to address below
further remarks to the Commission.

the fact

that

As concerns the complainant’s second allegation about
waste of public money, there appeared to be no elements
in support for this allegation. The Ombudsman therefore
found that any further inquiry into the allegation was
not justified.

Conclusion

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
European Commission. The Ombudsman therefore closed the
case.

Further remarks

In the light of the facts of the case, the Ombudsman considered
it relevant to make the following further remarks. It appeared
that the Commission had made a broad undertaking to observe
confidentiality in respect of all information it received from
participants in the procedure in question. It is clear that the
Commission is bound to respect such an undertaking. It is also
clear that such an undertaking hinders transparency and the
participating parties’ right of
the
Ombudsman suggested that in view of promoting trans-
parency in its activities, the Commission should reconsider the
relevance of such a broad undertaking.

information. Therefore,

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CANCELLATION OF A TENDER BY THE GREEK GOVERNMENT
(ARTICLE 226 EC)

Decision on complaint 1140/97/IJH against the European Com-
mission

The complaint

into possible instances of maladministration only in the
activities of Community institutions and bodies. The Statute of
the Ombudsman specifically provides that no action by any
other authority or person may be the subject of a complaint
to the Ombudsman. The Ombudsman’s inquiries into the
complaint were therefore directed towards examining whether
there was maladministration in the activities of the European
Commission.

The complaint was made to the Ombudsman in Novemb-
er 1997. The complainant is a lawyer acting on behalf of a
client, the consortium Casino d’Athènes. According to the
complainant, the relevant facts were as follows:

The Commission’s opinion

The consortium Casino d’Athènes was awarded a casino
licence by the Greek government on 13 January 1995, follow-
ing an international call for tenders. More than a year later, the
Greek government cancelled the licence.

On 20 December 1996, the complainant made a complaint to
the Commission on behalf of his client claiming that the Greek
government had infringed the Community Directives on Public
Procurement. On 24 February 1997, Commissioner MONTI
informed the complainant that the matter would be dealt with
by DG XV/B/3.

On 20 June and 17 July 1997, the complainant had interviews
with the Director of DG XV/B, Mr Mattera, and on the
latter date, handed over additional material concerning the
complaint.
It was agreed that DG XV would continue to
investigate the case.

During the week 13-18 October 1997, the complainant’s
clients read in the Greek press that their case had been closed
by the Commission. The complainant subsequently learnt that
the Commission had closed the case at a meeting on 15 Octob-
er 1997.

In his complaint to the Ombudsman the complainant claimed
that:

(i)

(ii)

the Commission should have warned him that
the
decision to close the file was foreseen and invited
observations within a reasonable period, in accordance
with the undertaking which it had given to the European
Ombudsman in his own-initiative inquiry into the
infringement procedure;

the decision to close the file was made on the basis of a
meeting of the heads of the Commissioners’ Cabinets,
whilst the case was still being dealt with by the competent
service.

The inquiry

To avoid misunderstanding, it is important to recall that the
EC Treaty empowers the European Ombudsman to inquire

In summary, the Commission’s opinion was as follows. The
Commission services carefully examined the complaint which
was submitted on behalf of the consortium Casino d’Athènes.
By letter dated 23 April 1997, the Commission asked the
Greek authorities for an explanation of the matter. The Greek
authorities replied on 6 June 1997 and the matter was
discussed at a bilateral meeting between the Commission and
the Greek authorities, which was held in Athens at the end of
June 1997.

The complainant subsequently asked for a meeting with the
Commission services in order to be informed of developments
in the case. At a meeting on 17 July 1997, the complainant
was informed of the procedure and of the evaluation by the
Commission services of the substance of the case. During this
meeting, the Commission services expressed the hope that
they would receive additional elements from the complainant
in order to be able to pursue the case. However, no such new
elements were presented.

As regards the complainant’s first claim, the opinion stated
that the Commission has now taken all the necessary internal
measures to inform its services of the undertaking which it
gave to the Ombudsman in the framework of his inquiry into
infringement procedures. However, at the time when the
decision to close the file in this case was taken, the Commission
had not yet put in place the internal measures to give effect to
its undertaking.

As regards the complainant’s second claim, the Commission
stated that in the light of the replies from the Greek authorities
and since no new information had been supplied by the
complainants, the file was examined by the Commission at
one of the regular meetings dealing with alleged infringements.
This meeting had, as normal, been prepared by a special
meeting of heads of cabinets in the course of which the closure
of the file was foreseen. The complainant having been heard
before the decision to close the file was made, this decision
was taken on the basis of sufficient information. The complain-
ant was informed of the decision and the reasons for it by
letter dated 11 November 1997.

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The complainant’s observations

The Commission’s opinion was forwarded to the complainant
with an invitation to submit observations, but no observations
were received. In December 1998, after carefully examining
the Ombudsman requested a
the Commission’s opinion,
copy of the Commission’s letter to the complainant dated
11 November 1997. The Commission forwarded the letter in
January 1999.

On 1 March 1999, the Ombudsman informed the Commission
that he had completed his inquiries into the first aspect of the
complaint. As regards the second aspect of the complaint, the
Ombudsman stated that it was necessary for his services to
inspect the relevant Commission file,
in accordance with
Article 3 (2) 1st indent (1) of the Statute of the Ombudsman.

The Commission also stressed that
in their letter to the
complainant of 11 November 1997, the Commission services
informed him that new infringement proceedings could be
initiated, provided he supplied the requisite additional facts
and arguments, but that this invitation remains unanswered.

The inspection of the file and the taking of oral evidence

On 22 April 1999, the Ombudsman wrote thanking the
Commission for the additional information and for the copies
of documents and repeating the request to inspect the file. The
Ombudsman also informed the Commission that, after careful
consideration of the information and documents forwarded to
him by the Commission on 14 April 1999, he considered it
necessary to take oral evidence from the officials in DG XV
who dealt with the Casino d’Athenès complaint, in accordance
with Article 3 (2) 4th indent
the
Ombudsman. (2)

Statute of

the

of

In a reply dated 14 April 1999, the Commission gave further
information concerning the procedure which led to the closure
of its file on the Casino d’Athènes complaint. The Commission
infringement
stated that under the Commission’s internal
procedures, the case was due to be discussed at the Com-
mission’s meeting of 15 October 1997.

In reply, the Commission invited the Ombudsman to contact
the General Secretariat of
the Commission to make the
necessary arrangements for the inspection of the file and for
the taking of oral evidence and informed him that the DG XV
officials concerned are Mr Alfonso Mattera, director and
Mr Konstantinos Tomaras, Administrator.

that meeting,

‘In preparation of
the Commission services
prepared (3 September 1997) the requisite “fiche infraction”
they were waiting for further
where they mentioned that
information the complainant might want
to submit. By
30 September the services’ proposal had remained the same,
but it was evident to them that no additional elements were
forthcoming since more than two months had elapsed since the
relevant request was made. In view of these elements, when the
case was discussed at the meeting of the heads of Cabinets of
9 October 1997, since it was clear that no information was to
be expected any more from the complainant, the decision was
therefore taken to propose to the Commission the closure of the
file. The Commission acted on that proposal and closed the file
on 15 October 1997.’

The Commission also enclosed, on a confidential basis, a copy
of the standard form used for recording the progress of each
Commission investigation into an alleged infringement (fiche
infraction) and a timetable of events. The Commission stated
that these were the only documents in the file which relate to
the circumstances of its closure and that, for that reason,
the Commission took the liberty of sending them to the
Ombudsman rather than have his staff put to the trouble of
inspecting them in situ.

After further correspondence concerning the procedures for
the taking of oral evidence, both the inspection of the file and
taking of oral evidence were carried out by the Ombudsman’s
services on 24 June 1999.

Oral evidence was taken using the following procedure:

1.

2.

3.

The date, time and place for the taking of oral evidence
were agreed between the Ombudsman’s services and the
General Secretariat of the Commission, which informed
the witnesses. The oral evidence was taken on the
Ombudsman’s premises in Brussels.

Each witness was heard separately and was not
accompanied.

The language of the proceedings was agreed between the
Ombudsman’s services and the Secretariat General of
the Commission. At the request of the witnesses the
proceedings were conducted in French.

4.

The procedure was explained to each witness before the
oral evidence was taken.

(1) The Community institutions and bodies shall be obliged to supply the
Ombudsman with any information he has requested of them and give
him access to the files concerned. They may refuse only on duly
substantiated grounds of secrecy.

(2) Officials and other servants of Community institutions and bodies must
testify at the request of the Ombudsman; they shall speak on behalf of
and in accordance with instructions from their administrations and shall
continue to be bound by their duty of professional secrecy.

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5.

6.

The questions and answers were recorded and transcribed
by the Ombudsman’s services.

Each witness was sent the transcript of his evidence for
signature. The witnesses were invited to propose linguistic
corrections to their answers. They were informed that if
they wished to correct or complete an answer, the revised
answer and the reasons for it should be set out in a
separate document and annexed to the transcript. The
signed transcripts form part of the Ombudsman’s file on
the case.

The Ombudsman’s services informed the complainant by
telephone that an inspection of the file had been carried out
and that oral evidence had been taken. The complainant stated
that his client is no longer interested in the affair and that he
did not therefore wish to comment on the oral evidence.

The decision

1.3. In its opinion, the Commission stated that at the time
when it took the decision to close the file in this case, it
had not yet put in place the internal measures to give
effect to the above-mentioned undertaking. However, it
also stated that it has now taken all the necessary internal
measures to inform its services of the undertaking.

1.4. The Commission’s decision to close the file on the Casino
d’Athènes case was contemporaneous with the letter of
13 October 1997 by which the European Ombudsman
informed the Commission of the closure of the above-
mentioned own-initiative inquiry. The Ombudsman’s
letter also informed the Commission of the importance
which he attached to the undertaking it had given. The
Commission’s explanation of why it did not apply
the undertaking in this case is therefore reasonable.
Furthermore,
it seems that the Commission has now
taken all the necessary internal measures to give effect
to the undertaking. There appears therefore to be no
maladministration in relation to this aspect of the case.

1.

The complainant’s first claim

2.

The complainant’s second claim

1.1. The complainant made a complaint to the Commission
alleging an infringement of Community law by the Greek
authorities in the Casino d’Athènes case. He claimed that
the Commission closed the file in October 1997 without
giving him an opportunity to submit observations, con-
trary to the undertaking which it had given to the
European Ombudsman in his own-initiative inquiry into
the infringement procedure.

1.2. In April 1997, the Ombudsman began an own-initiative
inquiry into the possibilities for improving the quality of
the Commission’s administrative procedures for dealing
with complaints concerning infringements of Community
law by Member States. (1) During the inquiry, the Com-
mission undertook that, apart from cases where a com-
plaint is obviously without foundation and cases where
nothing further is heard from the complainant, it will
ensure that a complainant is informed of its intention to
close a case and its reasons. Complainants should there-
fore have the possibility to put
forward views and
criticisms concerning the Commission’s point of view
before the decision to close the file is taken.

(1) 303/97/PD, reported in the European Ombudsman’s Annual
Report for 1997 pp. 270-274 and see the Commission’s 15th
Annual Report on Monitoring the Application of Community law
(1997), Introduction pp. III-IV (COM(1998) 317 final).

2.1. The complainant claimed that the decision to close the
file on his complaint about an alleged infringement of
Community law by the Greek authorities was made on
the basis of a meeting of the heads of the Commissioners’
Cabinets, whilst the case was still being dealt with by the
competent service, DG XV.

2.2. Article 211 of the EC Treaty establishes the role of the
Commission as the ‘Guardian of the Treaty’. Its duty is to
ensure that the provisions of the Treaty and the measures
taken by the institutions pursuant thereto are applied.

2.3. According to the written evidence supplied by the
Commission, the case of Casino d’Athènes was due to be
examined by the Commission at its meeting of 15 Octob-
er 1997, as part of the normal procedure for dealing with
alleged infringements. On 3 September 1997, DG XV
proposed that the case should be kept open to wait for
further information which the complainant might want
to submit and by 30 September 1997,
its proposal
remained the same. When the case was discussed at the
meeting of the heads of Cabinets of 9 October 1997, the
decision was taken to propose to the Commission the
closure of the file, since it was clear that no information

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was to be expected any more from the complainant. The
Commission acted on that proposal and closed the file.

THERMIE GRANT TO A WINDFARM PROJECT: ALLEGED FAILURE
TO INVESTIGATE THE PROJECT

2.4. The explanation and documents supplied by the Com-
mission appeared not to exclude the possibility that the
proposal to close the file had been made by the heads of
Cabinets without giving the competent service enough
time to complete an adequate investigation of the com-
plaint. The Ombudsman therefore inspected the Com-
mission’s file on the complaint and took oral evidence
both from the director of the unit in DG XV which dealt
with the case, Mr Mattera, and the official who dealt with
the file, Mr Tomaras.

2.5. The inspection of the file revealed no documents contain-
ing the reasons why the heads of Cabinet had apparently
proposed to close the file on the complaint although the
competent service had proposed that it should remain
open.

in response

to questions

2.6. The Ombudsman made the following findings of fact,
based on the oral evidence given by Mr Mattera and
Mr Tomaras
from the
Ombudsman’s services. The complainant was informed
by DG XV at meetings in June and July 1997 that: (i)
there appeared to be no infringement of Community law,
since a tender can be cancelled, if there is justification to
do so; (ii) the Greek authorities had supplied justification
and; (iii) the complaint could not, therefore, be pursued
unless the complainant supplied new elements, such as
possible evidence that the tender had been cancelled in
order to favour a competitor. On 3 September 1997,
DG XV made a proposal to keep the case open in order
to give the complainant a further opportunity to submit
new elements. Before the meeting of heads of Cabinets
on 9 October 1997, the competent service of DG XV was
asked if, in its opinion, the case could now be closed.
They answered that it could, since the complainant had
not supplied any additional evidence. The complainant
was informed that a new infringement proceeding could
be initiated, provided that he supplied the requisite
additional facts and arguments.

2.7. In view of the above findings of fact, there appeared to
be no maladministration in relation to this aspect of the
case.

Conclusion

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

Decision on joined complaints 1152/97/OV, 142/98/OV and
149/98/OV against the European Commission

The complaint

and

In December 1997
January 1998
(1152/97/OV)
(142/98/OV, 149/98/OV) respectively, Mrs M., Mr and Mrs H.,
Mr and Mrs F. made complaints to the European Ombudsman
concerning the conditions under which the Commission
awarded an EC Thermie grant to the Windfarm Project at
Mynydd Gorddu, Ceredigion, Wales (ref. WE/225/91-UK-DK).
Given that
the
Ombudsman decided to investigate them together.

their complaints raised the same points,

One of the allegations raised in the complaints concerned the
fact that no environmental impact assessment had been carried
out for the project. However, this allegation had already been
dealt with in the framework of petitions No 71/96, 155/96
and 160/96. On basis of
the
Commission on those petitions, the Committee on Petitions of
the European Parliament decided to conclude its examination
of the petitions. For this reason, the Ombudsman informed
the complainants on 26 March 1998 that there were no
grounds for him to conduct inquiries into this part of the
complaints.

the common position of

According to the complainants, the relevant facts were as
follows: The applicants for the Thermie grant were National
Power plc., Nordtank Energy Group, and Dr. H. On 13 August
1991, the Commission accepted the proposal and notified the
award of a grant of approximate GBP 1.3 million to the
applicants.

The main allegation of the complainants concerned the fact
that the Mynydd Gorddu Windfarm Project was promoted as
an ‘innovative, farmer led and locally orientated’ scheme, the
reason why it qualified for a grant under the Thermie
Programme, but in fact was led by multinational commercial
interests. The company Mynydd Gorddu Windfarm Ltd was
set up in June 1991 by the already existing National Power
plc. and National Wind Power Ltd, in order to run the project
as a commercial enterprise. Two of the directors were each
directors of some 50 other windfarm companies, which would
not appear to correspond to the ‘innovative’ description of the
project. For those reasons, the project had, contrary to its
presentation, no link with the local community, which would
not receive any benefit from it.

Moreover, the local community would suffer from a variety of
negative environmental effects of the project. This was due to
the fact that the promoters of the project avoided carrying out
an environmental impact assessment, by putting pressure on
the planning committee in order to obtain the planning
permission. The complainants further alleged that the Ceredi-
gion County Council made a serious mistake in granting the
permission without requiring an environmental statement.

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Under those circumstances, the complainants alleged that the
European Commission seemed to have accepted too easily the
project of the applicants without any attempt, before awarding
the grant, to make an on the spot investigation or to verify
thoroughly the information contained in the proposal.

In 1996 several complaints concerning the absence of an
environmental impact assessment were lodged with the Euro-
pean Commission, one of which was signed together by
Mrs M., Mr and Mrs F., and by other residents. Similarly, since
May 1996 several petitions were also made to the European
Parliament by Professor T. (No 71/96), Mr M. (No 155/96) and
Mr F. (No 160/96). Furthermore, all the complainants in the
present case, as well as other residents, wrote letters to
Directorate F (Unit for coordination of fraud prevention —
UCLAF) of the Secretariat General of the Commission and to
DG XVII (Energy) in November and December 1997.

1.

2.

Firstly, they maintained their complaint that the Com-
mission had awarded a Thermie grant to the Mynydd
Gorddu Windfarm Project without a proper inquiry, for
example by an on the spot investigation. This had as
result that a grant had been awarded to a project which
was promoted as an innovative, farmer led and locally
orientated scheme, but which was in fact led by multi-
national commercial interests.

Secondly, the complainants alleged that several letters
they had sent to DG XVII and to Directorate F (UCLAF)
of the Secretariat General had not been answered by
the Commission. The complainants enclosed numerous
annexes to their complaints, amongst which the paper
‘Mynydd Gorddu: a Summary’, which describes in detail
the whole background of how the Windfarm Project got
approved.

In its answer to the complainants, the Commission stated
that the UK authorities had informed the Commission that,
although the developer of the windfarm was not required
to submit an environmental statement, the local planning
authority had consulted widely about the proposal. More
particularly, in reaching the decision to grant development
consent,
it had taken the views of consultees, the public
and the consultant landscape architect into account. The
Commission also indicated that, since the introduction of new
UK legislation in April 1994, competent authorities may
require wind farm proposals to be subject to an environmental
impact assessment prior to the granting of development
consent. The Commission however added that under the terms
of Directive 85/337/EEC(1), wind farms might require an
environmental impact assessment where Member States con-
sider that their characteristics so require. The Commission
therefore stated that Member States have a great margin of
discretion to decide whether projects shall be subject to an
environmental
the
Commission considered that there was no breach of Com-
munity environmental law in this case.

impact assessment. For those reasons,

This answer equally constituted the Commission’s common
position on petitions No 71/96, 155/96 and 160/96, on the
basis of which the Committee on Petitions concluded its
examination of the petitions in January 1998.

Not satisfied with this answer, the complainants wrote to the
Ombudsman.
In addition to their complaint alleging the
absence of an environmental impact assessment, which had
been dealt with by the Committee on Petitions, they put
forward two other complaints:

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment
of the effects of certain public and private projects on the
environment, OJ 1985 L 175/40.

The inquiry

The Commission’s opinion

Thermie

Programme

(Council Regulation

In its
The complaint was forwarded to the Commission.
opinion, the Commission stated that the grant to the Mynydd
Gorddu Windfarm Project was awarded in the framework of
the
(EEC)
No 2008/90). Article 2 of the Regulation provides that Com-
munity financial support may be granted to two kinds of
projects, namely a) innovative projects, and b) dissemination
projects. It is the Commission, assisted by a Committee (the
‘Thermie Committee’) composed by representatives of the
Member States, which is responsible for the selection of the
projects (Articles 9 and 10).

In the framework of the 1991 call for proposals, the Com-
mission received the proposal for the wind energy project,
submitted by National Power Plc. (Power utility-UK), Nordtank
AF 1998 A/S (wind turbine manufacturer-Denmark,
later
renamed to Nordtank Energy Group A/S) and Dr. H. (land
owner-UK). The proposal concerned the installation of a
6 MW wind farm at Mynydd Gorddu, Wales, consisting of
twenty 300 kW wind turbines. The total cost of the project
was ECU 8.2 million.

The project was evaluated as a ‘dissemination project’ since it
concerned the transfer of an already proven technology under
different geographical conditions. Although the proposal
mentioned that locally based skills would be used if possible,
the project was not described as a farmer led and locally
oriented scheme. The selection process, in which two indepen-
dent experts and an expert of the Commission participated,
examined whether, on the basis of the information submitted,
the proposal met the eligibility criteria for support, including

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those directly related to the status of the promoting companies
and their capacity (letters e and f of Article 6 of the Regulation).
Following the favourable opinion of the Thermie Committee,
the Commission took the decision to grant support to the
project for a maximum amount of ECU 1 830 924.

UCLAF also received several letters from the complainants and
other citizens. After the final analysis of all the data, UCLAF
informed all the complainants on 19 May 1998 that it had not
initiated investigations.

After the Commission’s decision, National Power Plc. joined
with British Aerospace Plc. and Taylor Woodraw Construction
Holding Ltd., to form the company National Wind Power
Ltd.,
in order to continue National Power Plc. wind farm
developments and related research work. The promoters of
the project requested the Commission to consider replacement
of National Power Plc. by National Wind Power Ltd. The
Commission accepted the replacement. On 15 January 1992
contract No WE/225/91 was signed between the Community
and National Wind Power Ltd., Nordtank Energy Group A/S,
and Dr. H. An amendment to the contract was signed by the
Commission on 23 December 1996 when the co-ordinator
National Wind Power Ltd. requested to withdraw from the
contract and was replaced by Nordtank Energy Group.

The case was examined by UCLAF, which did not consider it
necessary to initiate an investigation. The main allegations
made were related to matters of environment, nuisance or
safety, rather than to suspicions of improper use of Community
funds. The information received from the authorising officer
who looked into the matter confirmed that there was nothing
to suggest that the Community’s financial interests might have
been harmed.

As regards the first allegation raised by the complainants, the
Commission observed that it took the decision to support the
project, which was a dissemination project, because all the
Thermie requirements, eligibility criteria and conditions for
selection were fully met. The project was not described in the
submitted proposal as a farmer led and locally oriented
scheme, nor would it have been necessary or relevant under
the terms of the Regulation. Although small and medium size
enterprises benefit from preference in the selection process
(Article 6.3), the Regulation does not contain specific criteria
or limits with regard to the size of the promoters.

With regard to the alleged failure to reply by DG XVII, the
Commission observed that in November 1997 DG XVII was
informed by Mrs M. that, for the project No WE/225/91, the
Commission had been misled. In late November 1997 Mrs M.
submitted supporting evidence and was informed by the
Commission that a written answer would be forwarded in due
course. Following a finalisation of the in depth analysis which
revealed no evidence that the Commission had been misled,
DG XVII replied to Mrs M. on 28 April 1998.

The complainants’ observations

No observations were received from the complainants. How-
ever, in their common letter of 30 April 1998, the complain-
ants stated that, with regard to the absence of an environmental
impact assessment for the project, which had been the subject
of petitions 71/96, 155/96 and 160/96, they did not agree
with the way their petitions had been dealt with by the
Committee on Petitions. They alleged that the facts stated
in their petitions had manifestly been misunderstood and
incorrectly stated.

The complainants insisted once again on the fact that an
environmental impact assessment should have been carried
out for this project, but that the Ceredigion County Council
ignored the advice received from different bodies to do so. The
complainants further provided details showing the commercial
interests involved in the Mynydd Gorddu Windfarm Project.

The decision

1.

The allegation concerning the way in which the Com-
mittee on Petitions dealt with the petitions

1.1. The first allegation of the complainants was that no
environmental impact assessment was carried out for the
Mynydd Gorddu Windfarm Project. The complainants
therefore criticised the way in which the Committee on
Petitions of the European Parliament had dealt with and
concluded its examination of petitions 71/96, 155/96
and 160/96. In those petitions, the complainants had
alleged the absence of an environmental impact assess-
ment.

1.2. Since the Committee on Petitions, as a political body of
the European Parliament, deals with petitions as a political
task of the Parliament, complaints alleging maladminis-
tration by the Committee on Petitions are not considered
to be within the mandate of the European Ombudsman.
For this reason the Ombudsman could not deal with this
aspect of the complaints.

2.

The alleged awarding of a Thermie grant without
proper inquiries to the Mynydd Gorddu Windfarm
Project

2.1. The complainants alleged that the Commission awarded
a Thermie grant to the Mynydd Gorddu Windfarm Project

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11.9.2000

without making proper inquiries, for example by an on
the spot investigation. This had as a result that a grant
had been awarded to a project which was promoted as
an innovative, farmer led and locally orientated scheme,
but which was in fact led by multinational commercial
interests. The Commission observed that it took the
decision to support the project, which was a dissemi-
nation project, because all the Thermie requirements,
eligibility criteria and conditions for selection were fully
met. The project was not described in the submitted
proposal as a farmer led and locally oriented scheme,
nor would it have been necessary or relevant under the
terms of Regulation No 2008/90.

the

status of

regards more particularly

2.2. The Ombudsman noted that the conditions for receiving
financial support from the Thermie programme were
set out in Article 6 of the Regulation, as well as in
for proposals (1) and the
point 4 of both the Call
Thermie information brochure and application form.
the
As
beneficiaries of the funding, Article 6(f) of the Regulation
provides that, in the case of a project of a total cost of
ECU 6 million or more, it must be submitted by at least
two independent promoters established in different
Member States.
In the case of the Mynydd Gorddu
Windfarm Project where the total cost was ECU 8.2 mil-
the proposal had indeed been submitted by
lion,
established in different Member States,
promoters
namely in the UK (National Power Plc. and Dr H.) and
Denmark (Nordtank Energy Group A/S) respectively.
This condition of
the Regulation had thus been
respected for the Windfarm Project.

It

is

true

the Thermie Programme.

2.3. As regards the size of the promoters, the Ombudsman
noted that the Regulation contained no specific criteria
or limits which exclude large companies from funding
under
that
Article 6.3(b) of
the Regulation provides that, when
selecting projects, the Commission shall, as an adjunct
to the other criteria, take account of a preference to be
given to projects proposed by small and medium-sized
enterprises
such
enterprises. However,
this provision which leaves a
large margin of discretion to the Commission, cannot
it would exclude
be interpreted in a sense that
companies which are not SMEs from being selected.
Moreover, point 5 of the Call for proposals refers to
this preference to be given as a subsidiary selection
criterion.

(SMEs) or by an association of

2.4. The Ombudsman finally noted that UCLAF examined the
it necessary to initiate an
feel
matter but did not
investigation. The information received by UCLAF from

(1) OJ 1990 C 215/11.

the authorising officer confirmed that there was nothing
to suggest that the Community’s financial interests might
have been harmed. For the above reasons, no instance of
maladministration was found with regard to the awarding
of a Thermie grant to the Mynydd Gorddu Windfarm
Project.

3.

The alleged failure to reply by DG XVII and Director-
ate F (UCLAF) of the Secretariat General of the Com-
mission

3.1. The complainants alleged that several

letters sent to
DG XVII as well as to Directorate F (UCLAF) of the
Secretariat General in November and December 1997
had not received a reply from the Commission. In its
opinion, the Commission observed that, after the final
analysis of the points raised, both DG XVII and UCLAF
replied to the complainants respectively on 28 April
1998 and 19 May 1998. The Commission annexed
copies of those replies.

3.2. As regards the alleged failure to reply to the letters sent
to DG XVII on 18 and 21 November 1997 by the
complainant in case 1152/97/OV, the Ombudsman noted
that a reply was sent by the Commission on 28 April
1998. In this letter, the Commission first apologised for
the late reply. The Commission then answered the
different questions raised by the complainant. It explained
the reasons why the Windfarm Project had received
Community funding, namely that it had been considered
as a dissemination project, and that
the Regulation
foresees no specific criteria regarding the size of the
beneficiaries of the grant. The Commission also indicated
the names and addresses of the promoters of the project
to which the payments of the grant were made. With
regard to the request for a copy of the application form
submitted by the promoters, the Commission drew the
complainant’s attention to the provisions of the model
contract which limit the Commission’s right to pass
confidential information on to third parties.

3.3. UCLAF sent replies to all the complainants on 19 May
1998.
It apologised for the delay and informed the
complainants that, according to the documentation avail-
able to the Commission, there were no reasons for UCLAF
to intervene. It drew the complainants’ attention to the
possibility to have the case examined under the relevant
UK legislation. Given thus that both DG XVII and UCLAF
replied and apologised for the delay, no maladminis-
tration was found by the Ombudsman with regard to this
aspect of the case.

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Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Commission. The Ombudsman therefore
decided to close the case.

Further remarks

The Ombudsman noted that, alongside the allegations of
maladministration by the European Commission, the com-
plaints contained various other allegations of maladminis-
tration in the way the local UK authorities (Ceredigion County
Council) granted a planning permission to the Windfarm
Project, without an environmental impact assessment having
been carried out. For the reasons explained above, those
allegations could not be dealt with in the framework of this
inquiry.

However, the Ombudsman drew the attention of the complain-
ants on the possibility to bring those allegations in a complaint
to the Commissioner for Local Administration in Wales
(Derwen House, Court Road, Bridgend, Mid Glamorgan, UK-
Wales CF31 1BN, tel: 165 666 1325, fax: 165 665 8317).

ALLEGED FAILURE TO START AN INFRINGEMENT PROCEDURE
AGAINST THE UK FOR VIOLATION OF DIRECTIVES 77/187/EEC
AND 76/207/EEC

Decision on complaint 33/98/OV against the European Commission

The complaint

In January 1998 Mr D. lodged a complaint with the European
Ombudsman concerning an alleged refusal of the European
Commission to take the United Kingdom before the European
Court of
infringement of Council Directives
77/187/EEC (transfer of undertakings) (1) and 76/207/EEC
(equal treatment for men and women) (2). According to the
complainant, the relevant facts were as follows:

Justice for

The complainant, an employee of the Inner London Education
Authority (ILEA), was unfairly made redundant together with
30 000 other employees further to the Education Reform Act
of 1988 (and two Statutory Instruments) which abolished the
ILEA with effect from 1 April 1990. He therefore complained
to the European Commission in September 1997 using the
standard complaint form 89/C26/07. He alleged that the UK
authorities infringed Directives 77/187/EEC and 76/207/EEC,
because thousands of ex-employees of the ILEA were not
transferred to the successor authority, and because some ex-
employees were treated more favorably than others in new job
procurement. The complainant therefore concluded that the
Commission should take the UK authorities before the Court
of Justice.

In November 1997 he received a letter from DG V (Employ-
ment, Industrial Relations and Social Affairs) from which he
concluded that the Commission was not going to start an
infringement procedure against the UK. In this letter, dated
6 November 1997, the complainant was informed that the
two Directives had been transposed into national UK law, and
that therefore it is primarily the responsibility of the competent
UK judicial authorities to see that national law is correctly
applied. In a dispute, the national court concerned may ask for
a preliminary ruling by the Court of Justice on the interpret-
ation of the applicable Community law. DG V also informed
the complainant that there is no Community legislation dealing
specifically with individual dismissal.

The complainant then wrote back to President Santer on
15 November 1997 asking for a review of the decision. He
stated that the fact that the UK has transposed the Directives
into national law did not mean that other UK acts might
infringe the Directives. The Director General of DG V replied
on 21 January 1998 confirming that there was not an obvious
breach of Community law and that the subject of the complaint
would rather appear to be a matter for seeking remedy under
UK law. Not satisfied with the Commission’s decision, the
complainant lodged the present complaint with the Ombuds-
man alleging that the Commission was not taking the UK
authorities before the Court of Justice.

The inquiry

The Commission’s opinion

(1) Council Directive 77/187/EEC of 14 February 1977 on the
approximation of the laws of the Member States relating to the
safeguarding of employees’ rights in the event of transfers of
undertakings, businesses of parts of businesses (OJ 1977 L 61/26).
(2) Council Directive 76/207/EEC of 9 February 1976 on the
implementation of the principle of equal treatment for men and
women as regards access to employment, vocational training and
promotion, and working conditions (OJ 1976 L 39/40).

The complaint was
forwarded to the Commission in
May 1998. In its opinion, the Commission observed that the
complainant’s letter to the Commission, dated 26 September
the Secretariat-General on
1997, had been registered at
2 October 1997. The relevant Commission departments exam-
ined the complaint and concluded that there were no grounds

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for registering the letter as a complaint. The Secretariat-General
was informed accordingly in a letter dated 29 October 1997,
and DG V sent also a reply to the complainant on 6 November
1997.

unfair dismissal further to the 1988 Education Reform
Act. The Commission observed that there was no breach
of the said Directives and that it had informed the
complainant on 6 November 1997 of its decision not to
pursue the case.

the

regards

alleged infringement of

the Directive
As
77/187/EEC on transfers of undertakings, and the complain-
ant’s statement that the application of the 1988 Education
Reform Act led to his unfair dismissal, the Commission stated
that this legislation in no way breached the Directive. The
Education Reform Act, more specifically section 172 (‘Power
to transfer staff’) deals with educational reforms and the
transfer of certain categories of staff following the abolition of
the ILEA, and thus aims to protect the acquired rights of
employees in the event of the transfer of undertakings. The
Commission also indicated that Article 4 of the Directive does
not prohibit dismissals that might take place for organisational
reasons entailing changes in the workforce.

The Commission observed that all disputes concerning the
criteria and practical arrangements for determining which
employees perform tasks associated with the transfer are
within the jurisdiction of the appropriate national bodies,
particularly the relevant court and tribunals to which the
complainant might, if appropriate, take his case.

the

regards

alleged infringement of

As
the Directive
76/207/EEC on equal treatment for men and women, and the
complainant’s statement that some ex-ILEA employees were
treated more favourably than others, the Commission observed
that
it was clear from the information supplied by the
complainant that he did not refer to discrimination on the
grounds of sex which is the scope of the Directive.

The complainant’s observations

The complainant made no observations on the Commission’s
opinion.

The decision

The alleged failure of the Commission to initiate an infringe-
ment procedure against the UK authorities for violation of
Directives 77/187/EEC and 76/207/EEC

2.

3.

4.

The Ombudsman noted that the complaint concerned an
alleged maladmininstration by the Commission in the
administrative procedure for dealing with a complaint for
infringement of Community law by a Member State (the
Article 226 procedure). As regards this administrative
procedure, the Commission should abide by the undertak-
ings it made in the framework of the Ombudsman’s
own initiative inquiry 303/97/PD (1). According to these
undertakings, the complainant is kept informed about
the outcome of
the investigation of his complaint,
whether no action has been taken on it or infringement
proceedings have been instituted, and a decision to close
the file without taking any action must be taken within a
maximum period of one year from the date when the
complaint was registered.

In the present case it appeared that the complainant’s
letter of 26 September 1997 to the Commission was
registered at the Secretariat-General on 2 October 1997
and that a reply was sent
to the complainant on
6 November 1997. It further appeared that, on 21 Janua-
ry 1998, the Commission answered the complainant’s
second letter addressed to President Santer on 15 Nov-
ember 1997 and asking for a review of the previous
reply.

In both replies, the Commission informed the complain-
ant that there was no obvious breach of Community law,
that the said Directives had been transposed into national
UK law, and that therefore, the complainant should seek
remedy before the relevant UK courts and tribunals which
have jurisdiction over such disputes. The Commission
also indicated to the complainant that, in the event of a
dispute, the national court seized may ask for a prelimi-
nary ruling by the Court of Justice on the interpretation
of the applicable Community law.

5.

In its opinion to the Ombudsman, the Commission
provided the complainant with even more details on the
reasons why there was no breach of Community law. As
the Directive
regards

the alleged infringement of

1.

The complainant’s main allegation consisted in the fact
that the Commission did not initiate an infringement
procedure against the UK authorities for violation of
Directives 77/187/EEC and 76/207/EEC, because of his

(1) 303/97/PD, reported in the European Ombudsman’s Annual
Report for 1997 pp. 270-274 and see the Commission’s 15th
Annual Report on Monitoring the Application of Community law
(1997), Introduction pp. III-IV (COM(1998) 317 final).

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76/207/EEC on equal treatment for men and women,
the Commission observed that it was clear from the
information supplied by the complainant that he did not
refer to discrimination on the grounds of sex which is the
scope of the Directive. As regards the alleged infringement
of the Directive 77/187/EEC on transfers of undertakings,
the Commission stated that the Education Reform Act,
more specifically section 172 (‘Power to transfer staff’),
deals with educational reforms and the transfer of certain
categories of staff following the abolition of the ILEA,
and thus aims to protect the acquired rights of employees
in the event of the transfer of undertakings.

6.

The Ombudsman therefore considered that in this case
the Commission respected the undertakings it made with
regard to the Article 226 procedure and explained to the
complainant the reasons why it decided not to start an
infringement proceeding against the UK authorities. The
Commission acted thus within the limits of its legal
authority and no instance of maladministration was
found.

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Commission. The Ombudsman therefore
decided to close the case.

In July 1997 the companies were informed that all payments
to them from the Commission would be suspended. From 7
to 10 October 1997, the Commission undertook an on-the-
spot inspection at the premises of the companies. Representa-
tives of the companies participated in the inspection. Also in
October 1997, other Commission services refused to enter
into project contracts, in which the two companies would be
involved.

On 10 March 1998 the Commission asked the companies to
supply evidence in addition to the one supplied at
the
inspection. By letter of 24 March 1998, the complainant
replied to this letter. According to the complainant,
the
Commission had received all necessary information and the
Commission’s behaviour was harming the two companies.

This was the background against which the complaint was
lodged with the Ombudsman. According to the complainant,
the Commission had behaved in an unfair manner towards the
companies. The complainant in particular put forward that

— although the two companies had regularly informed the
Commission over a period of more than six years of their
execution of contracts, the Commission had not reacted
to that information; the Commission had thus unfairly
left the companies with the impression that things were
in order;

— the Commission had unfairly suspended payments to the

two companies, without first hearing them;

— the Commission had unfairly excluded the companies

from participating in projects, and

AUDIT OF CONTRACTOR

— the Commission had acted with undue delay since the

Decision on complaint 568/98/PD against the European Com-
mission

inspection.

The inquiry

The complaint

The Commission’s opinion

In June 1998, Mr T. made a complaint against the European
Commission, on behalf of two companies. Since 1992, the
two complaining companies had been involved in a variety of
Community funded research projects. The involvement did
not give rise to any problems.

In February 1997,

the two companies.

In October 1996, the Court of Auditors performed an audit
of
the Court of
Auditors informed DG XIII of the Commission that the audit
had revealed problems. The Commission thereafter reviewed
the scope of
its contractual commitments with the two
companies. It appeared that there were in total 17 contracts,
managed by different services and on different legal bases.
Within the Commission, the Unit for the Coordination of
Fraud Prevention, UCLAF took over the file concerning the
two companies.

The complaint was forwarded to the European Commission.
The Commission stated that the audit carried out by the Court
of Auditors showed that important irregularities had taken
place in the two companies’ way of handling Community
funding. Therefore, precautions were immediately taken at the
Commission, i.e. payments to the companies were suspended.
According to the Commission, the on-site inspection made by
the Commission services confirmed the findings of the Court
of Auditors, in particular:

— expenditure statements were not based on real expendi-
ture but systematically and substantially overcharged,
especially as regards staff expenses and general expenses;

— supporting documents and bank statements were missing,

and

— a co-financing obligation imposed on the companies by
the contracts in question had not been complied with.

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The report on the on-site inspection containing these findings
had finally been established on 15 May 1998 and had been
communicated to the two companies which had been given,
both at the on-site inspection and afterwards, the possibility to
put forward their viewpoints. Following the establishment of
the report, the Commission was proceeding with the recovery
of sums unduly paid.

The decision

1.

Scope of the inquiry

As concerns the complainant’s first individual grievance, the
Commission stated in summary that the reports supplied over
the years by the companies did not reveal any problems with
regard to the conformity of the facts. The Commission thus
did not have any reason to start inquiring earlier into the use
of funds by the companies. It was only after the audit of the
Court of Auditors that the Commission was prompted to carry
out an in-depth inspection, which involved examination of
supporting documents. These supporting documents had not
been attached to the reports supplied over the years.

As concerns the second grievance, the Commission stated that
the Community’s
it was under an obligation to protect
finances, when, as in this case, it was confronted with serious
irregularities against those finances. It was therefore justified
that the Commission withheld payments to the companies,
until it had inquired further into the matter. Furthermore, the
on-site inspection showed this to be justified, as there were
even important amounts, already paid out, which needed to
be recovered.

As concerns the third grievance, the Commission stated that it
was entitled to decide that it did not want to enter into
any more contracts with the two companies concerned.
Furthermore,
the companies
the Commission stated that
themselves had accepted to withdraw from two future projects.

As concerns the fourth grievance, the Commission found that,
given the complexity of the legal situation and the failure on
the part of the companies to provide additional information,
it had dealt with the matter timely and without undue delay. It
stated that
in the time between the inspection and the
establishing of the report, several meetings had taken place
inside the Commission to ensure co-ordination.

The complainant’s observations

1.1. The complaining companies were involved in 17 con-
tracts with the Commission,
funded by Community
resources. After approximately six years, an audit of the
companies was carried out by the Court of Auditors.
Further to the audit, the Commission suspended the
payments to the companies under the contracts. The
Commission’s anti fraud unit proceeded to an on-site
inspection of the companies’ premises which, according
to the Commission, established serious irregularities.
Therefore the Commission did not want to enter into any
further contracts with the companies and issued recovery
orders for sums paid under existing contracts. The
complainant considered that the Commission’s behaviour
was unfair and that the Commission had acted with
undue delay.

Thus, the framework of the case were contractual relation-
ships between the Commission and the two companies
concerned and basically, the complainant questioned the
Commission’s powers when it is not satisfied with the
performance of the other party to a contract.

1.2. Therefore it had to be recalled that the European Ombuds-
man does not seek to establish whether either party has
acted in conformity with the contract. That question can
only be dealt with effectively by a court of competent
jurisdiction which would have the possibility to hear
arguments of the parties concerning the relevant national
law and to evaluate conflicting evidence on the disputed
issues of fact. However, as a matter of good adminis-
tration, a public authority engaged in a contractual
dispute with a private party should always be able to
provide the Ombudsman with a coherent account of the
legal basis for its actions and why it believes its view of
its position to be justified.

2. Unfair treatment by the Commission

2.1. In the first grievance, the complainant reproached the
Commission for not having reacted to the companies’
reports for years. According to the Commission, the
irregularities committed were of such a nature that the
Commission would not have been able to detect them on
the basis of the companies’ periodic reports to the
Commission and could not lead the complainant to
believe that things were in order.

In the observations, the complainant maintained the com-
plaint. In particular, the complainant stressed that all relevant
rules of Greek law had been complied with by the companies.

The Ombudsman found that the Commission’s expla-
nation for its failure to act was reasonable and could not
constitute maladministration in relation to the two
companies concerned.

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2.2. As concerns the second and third grievances that the
Commission was not entitled to suspend payments and
to avoid future contracts with the companies, it appeared
that the Commission did so in order to protect the
financial interest of the Community, faced with what the
Court of Auditors and itself considered to be serious
irregularities over several years. It shall also be observed
that as the case stood, the prudence of this measure
seemed confirmed by the recovery orders issued sub-
sequently by the Commission against the companies. The
sums to be recovered were important. It did not appear
unreasonable that the Commission, confronted with what
the Court of Auditors and itself considered to be serious
irregularities, sought to limit the extent of the financial
damage that it considered itself exposed to.

The Ombudsman therefore found that there was no
maladministration in these aspects of the complaint.

2.3. As concerns the complainant’s fourth grievance that the
Commission acted with undue delay, the Ombudsman
observed that from the Commission inspection (Octob-
er 1997) until the establishment of the report containing
the findings of the inspection (May 1998), approximately
seven months passed. According to the Commission, this
lapse of time was caused by the complexity of the legal
situation and the companies’ failure to provide additional
information. Furthermore, several meetings were held
inside the Commission to ensure co-ordination.

Principles of good administration require that the admin-
istration acts within reasonable time to solve matters
before it. What is reasonable time has to be determined
in relation to the particular circumstances of the matter,
as for instance the complexity of the case to be dealt with,
the importance, for the parties involved, of the actions to
be taken and the context. In this case, the examination by
the Commission concerned a large number of contracts,
which had run over several years and which required the
involvement of several Commission services. To this
has to be added the Commission’s dispute with the
In those
complainants about additional
circumstances, the time spent by the Commission in
establishing the report did not appear unreasonable and
did not therefore constitute maladministration.

information.

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Commission. The Ombudsman therefore
decided to close the case.

PENALTIES UNDER THE COMMUNITY MILK MARKET REGIME

Decision on complaint 619/98/(IJH)/GG against the European
Commission

The complaint

Regulation No 1001/98 was adopted on 13 May 1998 and
published in the Official Journal on 14 May 1998. Pursuant to
its Article 2, it entered into force on the seventh day following
its publication in the Official Journal. The regulation provided
for certain penalties if purchasers (i.e. the dairies to whom the
milk was delivered by producers) did not inform the national
competent authorities on deliveries by 14 May each year.

In June 1998, a member of a provincial authority in Italy
lodged a complaint with the Ombudsman. He argued that the
institutions of the EU should not have adopted a regulation on
the day before it was to be applied and published it on the day
when it was to be applied. He was of the opinion that
compliance with the regulation was very much put at risk in
view of the fact that the national authority in Italy had not yet
made available the relevant instructions and forms in the
German language.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.

In its opinion, the Commission pointed out that the obligation
for purchasers to provide the relevant information to the
national authorities before 15 May each year had been estab-
lished by Article 3 (2) first subparagraph of Regulation (EC)
No 536/93 (which had not been modified by Regulation (EC)
No 1001/98). Article 3 (2) second subparagraph of Regulation
(EC) No 536/93 provided for certain penalties in case that this
information was not supplied in time. The penalty to be paid
was the amount of levy due for a 0,1 % overrun of the
reference quantity. It could not exceed ECU 20 000, however.

The penalty was the same, regardless of whether the purchaser
was one day late in providing the information or three months.
According to the Commission, this had been perceived to be
inappropriate. Article 3 (2) second subparagraph had therefore
been modified by Regulation (EC) No 1001/98. The new
version of this subparagraph provided for the same penalty of
to the levy due for a 0,1 % overrun
an amount equal
on quantities of milk delivered as the old version of this
subparagraph, provided that the information was supplied

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after 14 May but before 1 June.
Increased penalties were
however laid down for cases where the communication was
made after 31 May but before 16 June, after 15 June but before
1 July, and after 30 June. In addition, minimum amounts of
penalty were now fixed for all these cases. According to
Article 2 of Regulation (EC) No 1001/98 these minimum
amounts were however only applicable from 1999.

The decision

1. Admissibility

On the basis of the above, the Commission drew the following
conclusions:

1.

2.

The deadline for the transmission of the relevant infor-
mation (14 May) was not changed by Regulation (EC)
No 1001/98.

For communications made between 15 May and 31 May
the penalty applicable was exactly the same as under the
original version of Regulation (EC) No 536/93, with the
sole exception that a minimum penalty was fixed.

3. Article 2 of Regulation (EC) No 1001/98 expressly pro-
vided that the minimum penalties did not apply until
1999.

4. A purchaser was therefore in no different position as a
result of the modifications unless he had still failed to
transmit the communication by 31 May 1998.

As to the difficulty to meet the deadline of 14 May as a
result of the lack of instructions and forms in German, the
Commission observed that the obligation of the purchasers to
provide the relevant information had been established by
Regulation (EC) No 536/93 and had been applicable since
1 April 1993. Purchasers in all member states had therefore
been fully aware of this deadline. In the Commission’s view,
there was no possible connection between the availability of
such instructions and forms in the German language and the
provisions of Regulation (EC) No 1001/98, as the instructions
and forms were to be provided by the Italian authorities.

The Commission finally noted that no previous administrative
approaches had been made to it by the complainant.

The complainant’s observations

In its opinion, the Commission drew attention to the fact
that no prior administrative approaches had been made
to it by the complainant.
It has to be pointed out,
however, that Article 2 (4) of the Statute of the Ombuds-
man (1) requires that a complaint be preceded by the
‘appropriate administrative approaches’. The Ombuds-
man considered that the present case concerned a claim
brought in the public interest (actio popularis) where
such prior administrative approaches are not necessarily
appropriate.

2. Date of applicability of Regulation (EC) No 1001/98

2.1. The

alleged

complainant

that Regulation

(EC)
No 1001/98 was adopted on the day before it was to be
applied and published on the day when it was to be
applied (14 May). It would therefore have been difficult
for purchasers (i.e. the dairies to whom the milk is
delivered by producers) to comply with their obligation
to the national competent
to forward, by 14 May,
authorities information on deliveries. The Commission
replied that the relevant date had already been fixed by
Regulation (EC) No 536/93 and that, notwithstanding the
modifications in relation to penalties for non-compliance
with this obligation that were introduced by Regulation
(EC) No 1001/98, a purchaser was in no different position
than before, unless he had still failed to transmit the
communication by 31 May 1998.

2.2. The Commission correctly pointed out that the obligation
of purchasers to supply the relevant information to the
national authorities by 14 May each year was already
introduced by Regulation (EC) No 536/93 in 1993.
Regulation (EC) No 1001/98 only deals with the penalties
which accrue in cases where this deadline is not respected.
It had therefore no impact on the ability of purchasers to
comply with the obligation to provide information
imposed on them by Regulation (EC) No 536/93, and the
fact that it was published on 14 May was therefore of no
importance in this respect.

2.3. Although it does not expressly address this issue, the
complaint could also be understood as querying the
applicability in time of the new penalties established by

No observations on these comments by the Commission were
received from the complainant.

(1) Decision No 94/262/ECSC, EC, Euratom of the European Parlia-
ment of 9 March 1994 on the regulations and general conditions
governing the Ombudsman’s duties.

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Regulation (EC) No 1001/98. The Commission at least
appeared to have interpreted the complaint in such a way
since it compared the penalties fixed by the two respective
regulations and discussed the question as to when the
new sanctions would become applicable. In this respect,
the Commission correctly pointed out that the new
minimum penalties provided for by Regulation (EC)
No 1001/98 would (pursuant to Article 2 of this regu-
lation) only become applicable in 1999.

3.

Lack of instructions and forms in German

3.1. The complainant relied on the fact

that

the Italian
authorities in charge of matters relating to milk quotas
had not made the necessary instructions and forms
available in the German language before 14 May 1998.
The Commission
(EC)
No 1001/98 had nothing to do with the deadline of
14 May which had already been fixed by Regulation (EC)
No 536/93 and that the instructions and forms were in
any event to be provided by the Italian authorities.

that Regulation

retorted

3.2. As the Commission pointed out,

the obligation for
purchasers to provide the relevant
information was
already set by Regulation (EC) No 536/93. Purchasers
thus had to be aware of this obligation since 1993 at
least. The alleged lack of instructions and forms in the
German language does not affect this conclusion. In any
event, the responsibility to provide such instructions and
forms would appear to rest with the Italian authorities.
The alleged failure of the Italian authorities could thus
not be examined by the Ombudsman whose mission
consists of investigating possible instances of maladminis-
tration on the part of Community institutions or bodies.

Commission in May 1988 about breaches of Articles 81 and
82 of the EC-Treaty (former Articles 85 and 86) by Dynopack.
The Commission examined the complaint but did not find any
breach of EC competition law. In 1994 it finally informed
MOL that the file on its case was closed.

The complainant claimed that MOL tried for many years to
get information and answers to questions arising from the
complaint lodged with the Commission. The complainant
stated that the Commission refused to give MOL the requested
information and that it did not handle the file nor did it
examine the submitted documents properly. Further,
the
Commission wrongly stated that trade between Norway and
the United Kingdom was not considered to be trade between
Member States in the meaning of the EC competition rules.

According to the complainant, only at a meeting in Septemb-
er 1997 did the Commission provide MOL with the infor-
mation it had requested for many years. The information
demonstrated that the Commission had not handled the claim
in accordance with the proper and correct procedure.
In
May 1998, the Commission agreed that trade between Norway
and the United Kingdom was like trade between Member
States. Despite this, it refused to reopen the file.

The Commission stated that it was not an investigative body
but that it relied on written submissions and that administrative
powers were insufficient. According to the complainant, this
is not true since the Commission’s investigative powers are
well established, particularly in the area of competition law.

Moreover, the Commission never replied to the complainant’s
letter of 21 July 1998.

Conclusion

Further information

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

THE COMMISSION’S HANDLING OF A COMPETITION CASE

Decision on complaint 75/99/ME against the European Commission

The complaint

In March 1999, Mr Elliott, MEP wrote to the Commission
regarding MOL’s case at the Commission and he sent a copy
of his letter to the Ombudsman. In his letter he asked the
Commission in summary the following four questions in
relation to MOL’s case:

— What examination was carried out by the Commission
of the accuracy of
the statements submitted to the
Commission, bearing in mind MOL’s claims that the
evidence submitted was false?

The complainant was a national representative for smaller
businesses. One of the firms he represents, Microwave Oven-
ware Ltd. (MOL), claimed that it had been forced to cease
trading in 1989 because of the behaviour of another enterprise,
Dynopack, situated in Norway. MOL complained to the

— Mr Elliott sent a Parliamentary question in March 1991
concerning question number one. In its reply, the Com-
mission stated that secrecy prevented any comment. On
what grounds was the decision taken that professional
secrecy applied and what action would be taken in
relation to the allegations of false evidence?

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— The Commission stated that the behaviour of Dynopack
did not appear to have any effect on trade between
Member States. No reason was given for this interpret-
ation. On what grounds was that decision taken, and why
was MOL not properly advised of this?

— The Commission stated that MOL had not been able to
supply evidence of the alleged infringement. However,
MOL stated that no substantive reply had been received
to the request by MOL to provide dates and instances
of these requests,
in consequence, the Commission’s
statement was flawed.

— Mr Elliott asked the Commission to include the answers
to these questions in the reply by the Commission to the
Ombudsman.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion the Commission put forward that Microwave Oven-
ware Ltd. (MOL) complained to the Commission in 1988
alleging that it had suffered losses because of the behaviour of
Dynopack, a firm that had earlier supplied MOL with accessori-
es for use in microwave ovens. During the years 1988 through
1993, DG IV of the Commission examined the complaint and
had numerous contacts with the complainant via letters and
informal discussions. This was shown by a table which was
annexed to the opinion outlining the communications and
contacts between the Commission and MOL. However in
1993, the Commission sent MOL a letter under Article 6 of
Regulation No 99/63/EEC to advise them that the Commission
envisaged rejecting the complaint. In this letter the Com-
mission informed the complainant that the requirement of
Article 85 of the EC-Treaty (now Article 81) was not met:
trade between Member States was not affected. Following that
letter, the complainant did not add any further evidence in
support of his complaint and in 1994 the Commission
informed MOL that the case was considered closed.

In 1997, more than three and a half years later, MOL asked
for the case to be reopened. In doing this, MOL alleged
mismanagement regarding the handling of its file and ques-
tioned the given reasons of lack of effect on trade between
Member States. During this contact it also became clear that
MOL had ceased trading in 1989. The Commission informed
MOL by letter of 16 July 1998 in detail why the original case
could not be reopened. In this letter the Commission referred
to the so-called Article 6 letter and its letter from 1994
informing MOL that the case was closed. The Commission
pointed out that following this correspondence MOL did not
act and did not ask for a formal decision rejecting the
complaint, so that MOL could have brought the matter before
the Court of First Instance. As regards the request to reopen

the case, the Commission pointed out that it would mean re-
examining facts occurred between 1988 and 1993 concerning
a firm that in the meantime had ceased any economical
activity. The Commission pointed out that in accordance with
the case-law of the Court of First Instance (T-77/95, SFEI
and others v Commission, [1997] ECR II-1, para. 57) the
Commission is not required to take action on complaints
denouncing practices which have ceased. The Commission
concluded that the reopening of the case would involve use of
the Commission’s resources which would be out of proportion
to the importance of the alleged infringement for the func-
tioning of the common market. It did, therefore, not find
sufficient Community interest to justify the reopening of the
investigation of MOL’s complaint.

The complainant’s letter of 21 July 1998 was regarded by the
Commission as an acknowledgement of receipt of its own
letter of 16 July 1998 since the same arguments were being
repeated. The Commission felt that no reply was called for.

The Commission pointed out that it does not possess the same
means as a national court to hear witnesses and it can therefore
not establish the veracity of information provided by other
parties.

Moreover, this was the subject of two written questions by
Mr Elliott, MEP to the Commission. Mr Elliott also wrote
directly to and received an answer from Sir Leon Brittan in
1991.

The complainant’s observations

In its observations the complainant put forward in summary
the following points: It was not possible to comment fully on
the Commission’s list of letters and replies annexed to its
opinion, because page three of the list was lacking. There were
no numerous informal discussions between MOL and the
Commission. There was no evidence to show that the file was
in fact examined.

As regards the question whether trade between Member
States had been affected the Commission indicated that
this requirement did not appear to be met. However, the
Commission never explained why it had changed its view and
until the meeting in September 1997, the Commission never
answered MOL’s request for clarification on this point. Finally,
in 1998 the Commission agreed that trade between Norway
and the United Kingdom was considered to be trade between
Member States. Further the Commission should have explained
why the case was opened under Article 86 of the EC-Treaty

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(now Article 82) and why a resubmission under Article 85 of
the EC-Treaty (now Article 81) was allowed if there was no
qualifying trade.

2.

The handling of the file by the Commission

MOL did not act between 1994 and 1997 because it was clear
to them that the Commission had no intention to respond to
them. It was only when friends and lawyers advised MOL that
the Commission should have answered MOL, that it resumed
contact with the Commission through its business representa-
tive.

2.1. The complainant claimed that the file was not handled or
examined by the Commission. Furthermore it had not
answered to the complainant’s letter of 21 July 1998.

As regards the fact that the Commission is not required to act
on complaints denouncing practices that have ceased, the
complainant put forward a newspaper article stating that the
Commission does act in relation to certain cases like this.

2.2. The Commission stated that it examined the complaint
during the years 1988 through 1993 and that it had had
numerous contacts with the complainant as shown in the
table enclosed to its opinion. Furthermore it felt that no
reply was needed regarding the letter of 21 July 1998, as
no new points were raised in the letter.

The Commission did not answer the letter of 21 July 1998,
which, contrary to what the Commission stated, raised new
points.

Contrary to what it says, the Commission has investigation
powers under Article 14 of Council Regulation No 17. The
complainant did therefore not agree with the Commission’s
statement that it cannot establish the veracity of information
submitted to it, being only an administrative body.

As regards the Commission’s statement that it tried in vain
to find solid evidence to support MOL’s allegations, the
complainant put forward that it supplied the Commission
with, amongst other things, with copies of invoices and signed
orders, sworn affidavits, import/export documents and bank
statements. If this was not evidence enough, the complainant
asked the Commission to specify what it classed as evidence.

Finally, the complainant hoped for the Commission to give
full answers regarding both the complaint and the four
questions submitted to the Commission by Mr. Elliott, MEP.

The decision

1.

Preliminary remarks

2.3. As regards the handling of the case, the Commission
enclosed a table concerning the communications and
contacts with MOL but, as the complainant had correctly
pointed out, page three of this table was missing. The
table showed however, only the main documents of the
file. Moreover, the documents submitted by both the
Commission and the complainant (such as copies of
correspondence) still permitted a proper evaluation of the
handling of the case. The documents showed that there
was a large amount of correspondence between the
Commission and MOL during a period of several years.
During this period the Commission regularly answered
the complainant. Although, the Commission did not
answer or acknowledge every single letter, sometimes
because the complainant wrote so frequently, it always
replied when it found it appropriate and it was clear that
correspondence took place on a regular basis. Further, in
competition cases like this, it cannot be required that the
complainant receives a reaction on all the material handed
in to the Commission when correspondence is taking
place so frequently and over such a long period of time.
The Ombudsman also noted that, although there were
misunderstandings between the Commission and the
complainant, along with the occurrence of some practical
problems, the file showed that the Commission gave the
complainant the opportunity to properly take part in the
procedures. In addition, the Commission respected the
procedure foreseen in competition cases regarding for
example the sending of a so called Article 6 letter. There
was, therefore, nothing to indicate that the Commission
did not handle the file correctly.

In the observations, the complainant raised new points in
relation to the original complaint. These points concerned
requests for information and clarification from the Com-
mission including receiving answers to the four questions
put forward by Mr Elliott. The Ombudsman did not find
it justified to start inquiries into the new points raised in
the complainant’s observations as they went beyond
the scope of the original complaint and rather only
constituted a request for information.

2.4. Concerning the complainant’s allegation that the file was
not examined, it shall be recalled that the Commission in
its Article 6 letter of 5 February 1993 stated that it had
carried out a thorough study of the case and that it was
fully aware of the case. There was nothing in the file to
indicate that
fulfilled this
the Commission had not
statement or had not properly examined the case.

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2.5. As concerns the complainant’s letter of 21 July 1998, the
Ombudsman noted that in general
letters should be
replied to. An evaluation of the letters by the Ombudsman
revealed that the letter of the complainant of 21 July
1998 contained questions relating to the basis for the
Commission closing the file and concerning the duty of
the Commission to provide clear advice on the progress
of the procedures. As regards the Commission’s decision
to close the case,
in its letter of 16 July 1998 the
Commission referred to its Article 6 letter of 5 February
1993 which properly dealt with this issue. Regarding the
duty of the Commission to provide clear advice, the
Ombudsman noted that the Commission did follow
the procedures foreseen in competition cases and the
Ombudsman did, therefore, not find it justified to pursue
this point of the complaint further.

2.6. Therefore, the Ombudsman found that there was no
instance of maladministration in relation to this aspect of
the case.

3.

The Commission’s opinion as regards whether trade
between Norway and the United Kingdom is considered
to be trade between Member States

3.1. The complainant claimed that

the Commission first
considered that trade between Norway and the United
Kingdom was like trade between Member States in the
meaning of the EC competition rules (Article 81 and 82
of the EC-Treaty), but later it wrongly changed its opinion.
Only in 1998, did it again agree with the complainants’
view that it was to be seen like trade between Member
States.

3.2. The Commission referred to its Article 6 letter of 5 Febru-
ary 1993 and stated that since trade between Member
States was not affected, the requirement of Article 81 of
the EC-Treaty had not been met.

3.3. As regards this question, it appeared necessary to refer to
the Article 6 letter of 5 February 1993. This letter stated:

‘So far as Article 85(1) EEC is concerned, the evidence
shows that the trade affected by the behaviour you have
complained of is direct trade between Norway and the
United Kingdom. While this does not mean that the
behaviour complained of cannot have an effect on trade
between Member States, there is no evidence in this case
of any appreciable effect on such trade. Thus, even if the
Commission were to accept unquestioned that the situation
is what you allege and that Dynopack and its British
distributors or subsidiaries have “squeezed you out” of
your United Kingdom markets, the evidence is lacking to
show that one of the essential conditions for applying

Article 85(1) EEC is fulfilled. We have tried to give you
every opportunity of showing the opposite, which is why
we have not moved to close the file sooner; we have to
conclude, however, that you have not been able to provide
any evidence of an appreciable effect on trade between
Member States, although we have frequently emphasised
that this is the main obstacle to pursuing your complaint.’

3.4. When reading the Article 6 letter of 5 February 1993, the
complainant had apparently misunderstood the position
of the Commission. It was clear from the letter that the
Commission did not state that trade between Norway
and the United Kingdom can never be seen as trade
between Member States. With the wording ‘While this
does not mean that the behaviour complained of cannot have
...’ rather the
an effect on trade between Member States,
opposite view is taken by the Commission. However, it
appeared that the Commission did not find ‘any appreci-
able effect on such trade’ in this specific case. Further,
there was nothing in the file to indicate that the Com-
mission did in fact state that trade between Norway and
the United Kingdom cannot be considered as trade
between Member States. What the Commission did state
on the other hand was that there was no appreciable
effect on trade between Member States in this specific
case.

3.5. Therefore, the Ombudsman found that there was no
instance of maladministration in relation to this aspect of
the case.

4.

The Commission’s investigation powers

4.1. The complainant alleged that the Commission wrongly
stated that it was not an investigative body but that it
relied on written submissions and that its administrative
powers were insufficient. According to the complainant,
this is not true since the Commission’s investigative
powers are well established, particularly in the area of
competition law.

4.2. The Commission stated that it does not possess the same
means as a national court to hear witnesses and it
can therefore not establish the veracity of information
provided by other parties.

4.3. The investigation powers of the Commission in compe-
tition cases are laid down in Council Regulation No 17 (1)
and by case law of the Court of Justice. Although it is
recognised that the Commission has broad investigation
powers in the area of competition law, this does not
mean that it possesses the possibility to hear witnesses or
to control the veracity of documents submitted to it.
the
According to Article 14 of Regulation No 17,

(1) OJ 1962 13/204.

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Commission has the right ‘to ask for oral explanations on
the spot’. However, Article 14 applies to investigations of
the
the Commission performed in the premises of
undertaking and further, the case law of the Court of
Justice has recognised a limited privilege against self-
incrimination to the effect that an undertaking is not
required to answer to questions which would be an
admission of the very offence which the Commission is
investigating. (1) Moreover, there is no established right
for the Commission to call witnesses, or to seek oral
explanations outside the remit of Article 14 of Regulation
No 17.

Although any natural or legal person with a legitimate
interest may complain to the Commission in accordance
with Article 3 (2)(b) of Regulation No 17, it is clear from
the case law of the Court of Justice that this right does
not include the right to obtain a decision, within the
meaning of Article 249 of
the EC-Treaty, as to the
existence or otherwise of the alleged infringement. (2) This
further indicates that the Commission has no obligation
to inquire into the veracity of the documents submitted
to it.

4.4. It appeared that the Commission did not break any rule
or principle binding upon it when stating that it did not
possess the same means as a national court to hear
witnesses and that it cannot establish the veracity of
submitted information. The Ombudsman,
therefore,
found that there was no instance of maladministration in
relation to this aspect of the case.

The Commission considers that it is not required to take
action on complaints denouncing practices which have
ceased (Court of First Instance, case T-77/95, SFEI and
others v Commission, ([1997] ECR II-1, paragraph 57).
The reopening of your case would involve use of the
Commission’s resources which would be out of proportion
to the importance of the alleged infringement for the
functioning of the common market. There is therefore no
sufficient Community interest to justify the reopening of
the investigation of the complaint.’

5.2. The Commission has discretionary powers to decide in
competition cases what action to take as long as it gives
reasons for its decision. In its letter of 16 July 1998, the
Commission explained why it did not find it necessary to
reopen the case. The reasons given were firstly that MOL
had ceased trading which meant that the Commission
was not required to examine the case further. Even if it
were to be shown that the Commission pursues certain
cases relating to activities that have ceased (as put forward
it is within the powers of the
by the complainant),
Commission to decide which cases it wishes to examine.
Secondly, the Commission considered that there was not
sufficient Community interest to justify the reopening of
the case. The reasons given by the Commission for
denying the reopening of the case appear to be in
accordance with the case law of the Community Courts.
The Ombudsman therefore found that the Commission
acted within the limits of its legal authority when denying
the reopening of the case.

5.3. Therefore, the Ombudsman found that there was no
instance of maladministration in relation to this aspect of
the case.

5.

The Commission’s refusal to reopen the file

Conclusion

5.1. After the complainant resumed contact with the Com-
mission he requested the reopening of the file. The
Commission informed MOL by letter of 16 July 1998
why the original case could not be reopened. In the letter
the Commission stated:

On the basis of the Ombudsman’s inquiries into this complaint,
there appeared to have been no maladministration by the
European Commission. The Ombudsman therefore decided to
close the case.

‘With regard to your request, introduced in 1997 and
confirmed in 1998, for reopening of the examination of
the case, I regret to note that it merely seeks to have the
Commission re-examine facts alleged to have occurred
between 1988 and 1993. The justification you put
forward is
the
false evidence was
time. You yourself concede, however, that the alleged
infringement has ceased and that currently you carry out
no relevant economic activity.

supplied at

that

3.1.5. THE EUROPEAN CENTRAL BANK

LANGUAGE RULES FOR COMMUNITY INSTITUTIONS

Decision on complaint 281/99/VK against the European Central
Bank

The complaint

(1) Case 374/87, OrkemSA v. Commission,[1989] ECR 3283.
(2) Case 125/78, GEMA v. Commission,[1979] ECR 3173.

In March 1999 Mr P. made a complaint to the European
Ombudsman against the European Central Bank (ECB). The
complainant had addressed the Bank’s director for external

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relations, Dr. Manfred Körber, concerning the fact that the
information on the European Central Bank’s Website is
in other Community
available only in English and not
languages. In his reply, Dr. Körber referred to the cost of
presenting information in all languages. He also stated that the
ECB’s Website contains links to the Websites of all the national
central banks, which could provide the necessary information
in the other languages.

In his complaint to the Ombudsman, the complainant claimed
that the ECB should comply with the same language rules as
other Community institutions and that provision of
the
information on the Website only in English is discriminatory.

The inquiry

2.

3.

4.

The ECB explained that most of its documents are drafted
in English and are published on its Website in English for
reasons of cost efficiency and in order to make them
public as quickly as possible. Its Website contains links
to the Websites of the national central banks, which
contain information in other languages.

The Ombudsman is not aware that the provisions of
Community law concerning use of languages (1) could
prevent a Community body publishing on a Website, as
a public service, documents in the language in which they
are drafted.

Effective communication requires that, as far as possible,
the Community institutions and bodies should provide
information to citizens in their own language. From its
opinion, it appeared that the ECB envisages a progressive
development of the provision of
information on its
Website in the other Community languages.

The Central Bank’s opinion

Conclusion

In its opinion, the ECB stated that its Website had been
intended to provide the public with a direct and useful means
of communication. Most ECB documents are drafted in
English. Publication in English has the advantage of presenting
the public with original first-hand information without delay.
If documents are prepared in other languages, they are made
available on the Website in those languages as well. In addition,
all major ECB publications, such as the Monthly Bulletin
and the Annual Report, are published simultaneously in
all Community languages. The ECB also provides different
language versions via links to the Websites of the national
central banks.

The ECB stated that, in view not only of the need for optimum
efficiency and timeliness, but also of budgetary constraints, it
considered that the solution it has adopted is a justifiable
compromise for the time being. The Bank also pointed out
that it was established only one year ago and that it was
confident that first steps in the direction suggested by the
complainant would become visible in due course.

On the basis of the above, there appeared to have been
no maladministration by the European Central Bank. The
Ombudsman therefore closed the case.

Further remarks

As a service to the citizens, it could be useful for the ECB’s
Website to explain, in all Community languages, the ECB’s
information policy and to contain all relevant material,
especially legal texts, which already exists in all Community
languages.

Note: it appears that the ECB has now made available on its website
(http://www.ecb.int) a compendium of ECB legal instruments in all
the official languages.

3.2. CASES CLOSED FOR OTHER REASONS

The complainant’s observations

3.2.1. THE EUROPEAN COMMISSION

The complainant did not make any observations.

The decision

1.

The complainant alleged that the provision of infor-
mation on the ECB’s Website only in English is discrimi-
natory. He considered that the ECB should comply with
the same language rules as other Community institutions.

TACIS PROGRAMME: REFUSAL TO PAY AN INVOICE

Decision on complaint 739/98/ADB against the European Com-
mission

On 16 July 1998 the Organisation E´ nergie pour l’Arménie
lodged a complainant with the European Ombudsman. It
claimed that the European Commission refused to pay an

(1) Regulation 1/58 as amended, 1958 OJ 17/385; Article 217 EC.

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invoice for work carried out in the framework of a contract
signed under the TACIS programme. The complaint was sent
to the Commission for an opinion, and the complainant was
given the opportunity to comment on it. Some further
inquiries were made.

In accordance with Article 195 of the Treaty establishing the
European Community, the European Ombudsman may not
conduct inquiries where the alleged facts are or have been the
subject of legal proceedings.

3.3. CASES SETTLED BY THE INSTITUTION

3.3.1. THE EUROPEAN COMMISSION

COMPLAINT FOR INFRINGEMENT OF COMMUNITY LAW:
ALLEGED FAILURE OF THE COMMISSION TO ACKNOWLEDGE
THE COMPLAINT

Decision on complaint 245/98/OV against the European Com-
mission

During the investigations on the complaint, the complainant
informed the European Ombudsman that the facts alleged in
his complaint to the Ombudsman were the subject of legal
proceedings before Belgian Courts.

The complaint

Article 2 (7) of the Statute of the Ombudsman provides that,
when the Ombudsman has to terminate his consideration of a
complaint because of legal proceedings, the outcome of any
inquiries he has carried out up to that point shall be filed
without any further action.

In February 1998, Mr P. made a complaint to the Ombudsman
concerning an alleged failure of the Commission to acknowl-
edge receipt of his complaint about a possible infringement of
Community environmental law by the Greek Authorities.

The Ombudsman therefore decided to close the case.

REFUSAL OF ADMISSION TO COMPETITION COM/A/12/98

Decision on complaint 867/99/GG against the European Com-
mission

In July 1999, Mrs P. made a complaint to the European
Ombudsman concerning the refusal of the Commission of the
European Communities to admit her to the written examin-
ation of Competition COM/A/12/98.

The complaint was forwarded to the Commission for its
opinion. In November 1999, the Commission informed the
Ombudsman that the complainant had initiated legal proceed-
ings before the Court of First Instance concerning the facts
which had been put forward in the complaint.

Because the complainant had brought an action before the
Court of First Instance, the Ombudsman, after having heard
the complainant on this issue, terminated his consideration of
in December 1999 in accordance with
the complaint
Article 195 of the EC Treaty.

In accordance with Article 2 (7) of the Statute of the Ombuds-
man, the outcome of the Ombudsman’s inquiries carried out
up to that point was filed without further action.

On 6 August 1997 the complainant, who acted on behalf of a
Greek registered environmental charity, sent a complaint to the
Commission alleging a violation of Community environmental
law by the Greek Authorities as regards the construction of a
dam on the Amari River in the District of Rethimnon, Crete.
On 27 November 1997, the complainant sent a reminder with
a request for an acknowledgement of receipt. As he received
no reply, he contacted the Secretariat General of the Com-
mission by telephone on 5 February 1998. Since he received
no answer, he wrote to the Ombudsman asking for an
investigation into the administrative procedure regarding his
complaint.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission recognised that Mr P. had made a
complaint in August 1997 and had sent a reminder on
27 November 1997. However, because of a regrettable admin-
istrative error, the correspondence received from the complain-
ant had not been promptly registered as a complaint. The
Commission pointed out that in order to correct this failure, it
had registered the complainant’s letter as complaint n¯
98/4483 and that it had sent an acknowledgement of receipt
to the complainant on 4 June 1998 informing him that the
Commission services were examining the complaint. The
Commission finally stated that the handling of the complaint
was now being pursued according to the usual procedure. In
its opinion, the Commission also recalled the allegations of the
original complaint, which were that:

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a)

the complainant’s observations concerning the construc-
tion project had not been taken into account, as they
should have been pursuant to Article 6 of Directive
85/337 (1), and

Commission had taken steps to settle the matter and had
thereby satisfied the complainant. The Ombudsman therefore
closed the case.

b)

the project would negatively affect the special protection
area of the Gorge of Prasiana.

Further remarks

The complainant’s observations

No observations were received. However, the complainant
wrote on 18 January 1999 stating that his complaint was only
registered due to the intervention of the Ombudsman, but that
since June 1998 he had received no further communication
from the Commission. He referred also to the fact that he had
made his initial complaint in August 1997. He therefore
requested the Ombudsman to inquire into the outcome of the
complaint.

As regards point 1.2 above, the Ombudsman noted that,
according to the Commission’s own observations in the
framework of
the Ombudsman’s own initiative inquiry
303/97/PD (2), a complainant should be kept informed about
the action taken by the Commission in response to the
complaint. It appeared from the complainant’s letter of January
1999 that since June 1998 he had received no communication
about the action taken on his complaint. The Ombudsman
foresees that the Commission will keep the complainant duly
informed in accordance with the obligations it has undertaken
in these cases.

The decision

The failure of the Commission to send an acknowledgement
of receipt

1.

2.

The complainant alleged that the Commission had not
the complaint he sent on
acknowledged receipt of
6 August 1997 nor replied to his reminder of 27 Nov-
ember 1997 in which he explicitly asked for an acknowl-
edgement of receipt. The Commission observed that the
complaint had not been registered because of a regrettable
administrative error. To put an end to this failure the
Commission finally registered the complaint, acknowl-
edged its receipt on 4 June 1998 and informed the
complainant that its services were examining the case.
Therefore, by having registered and acknowledged receipt
of the complaint, the Commission had settled the matter.

In his letter of 18 January 1999 the complainant however
informed the Ombudsman that since the acknowl-
edgement of receipt of June 1998, no further communi-
cation was received from the Commission services with
regard to the outcome of his complaint. The complainant
drew attention to the fact
in its opinion the
Commission had stated that the complaint would be
processed according to the usual procedure.

that

Conclusion

As regards the alleged failure of the Commission to send an
acknowledgement of receipt,
it appeared from the Com-
mission’s opinion and the complainant’s observations that the

RECONSIDERATION BY THE COMMISSION OF FUNDING FOR
PROJECT TO ASSIST VICTIMS OF VIOLENCE IN THE BASQUE
REGION

Decision on complaint 669/98/JMA against the European Com-
mission

The complaint

In June 1998, the regional ombudsman of the Basque Region
(Ararteko), in Spain, transferred to the European Ombudsman
a complaint lodged by the complainant, on behalf of a NGO,
with that institution. The complaint concerned the allegedly
unjustified refusal by the Commission to extend the time-
scale for the completion of project 96/018 (‘Intervencio´n
Psicoterapéutica con Vı´ctimas de la Violencia de Origen Polı´tico-
Ideolo´gico’), funded by the Commission’s services (DG IA/A).

In 1996 the Commission granted 50 000 ECUs to the NGO in
San Sebastian, in order to pay for psychological assistance to
victims of political violence in the Basque Region of Spain.
This grant was to be paid for a period of 12 months, starting
in September 1996, under the European Community’s Human
Rights and Democratisation Programme.

At the end of the agreed period, in September 1997, the NGO
submitted a report, and requested an extension for a period of
six months. The request was also formally made by letter of
December 1997. The Commission considered that the request
was not in accordance with the basis of the Programme since
it had been made only after the initial contract had expired,
and therefore did not accept it.

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment
of the effects of certain public and private projects on the
environment, OJ 1985 L 175/40.

(2) Annual Report 1997 of the European Ombudsman, p. 270.

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Moreover, the complainant informed the Commission that
since the NGO responsible was unaware of the exact date for
the conclusion of the project, it had continued to carry out the
established tasks (providing assistance to victims of terrorism).
It had therefore spent 1 989 020 PTA. during that extra
period, which exceeded the amount which had not been spent
(1 238 765 PTA.).

The Commission’s proposal to settle the matter was dated July
1998, and covered the period for which expenditure could be
considered to the end of September 1998.

The complainant’s observations

The Commission therefore asked the NGO to return the
unspent funding. Since the association found the decision
unjustified and without a proper consideration of the effects
of the project on important groups of citizens in the Basque
Region, it lodged a complaint with the regional ombudsman
who transferred the case to the European Ombudsman.

In his observation on the Commission’s opinion, the complain-
ant first expressed, on behalf of the NGO his gratitude for the
Ombudsman’ s satisfactory resolution of the matter.

The complainant also made some remarks on the following
points:

The inquiry

The Commission’s opinion

The complaint was forwarded to the European Commission.
Its comments were in summary the following:

The Commission first explained the background of the case. It
indicated that its negative decision followed prevailing rules of
financial management. The request to extend the period of
project validity had been received well after the end of the
contract, and could not therefore be treated as a simple
contract amendment, because it would have involved a
retroactive approval of expenditure.

The Commission had asked the NGO to submit financial
reports covering the specific period of the original contract, in
order to determine the precise amount legitimately spent.
Also, a request had been made to return the unspent grant
funds. The Commission considered this ‘to be sound management
of public funds pursuant to the applicable procedure’.

In March 1998, the Commission reviewed the file, taking into
account the fact that its position would have implied seeking
the reimbursement of a considerable sum which had been
spent by the NGO beyond the contractual period. Since
the request for reimbursement may have imposed extreme
conditions for the complainant, and moreover since these
amounts had been spent in pursuit of the objectives originally
specified in the project request, the Commission reconsidered
its position. It decided to accept the position being proposed
by the NGO, and informed it of its new position. In its
reply, the Commission attached a form of dispute settlement
to spend the
agreement whereby the other party accept
outstanding amount on further activities in conformity with
the initially agreed conditions.

From the outset, their relations with the Commission had been
difficult, particularly as regards the gathering of information
concerning the examination of the project. Although the
complainant recognised his lack of experience with Com-
munity matters, he had always informed the Commission
of the work. Accordingly, before sending the final report
(September 1997), the NGO had forwarded an activity report
in February. The complainant also recognised that the NGO
had overestimated the work that could be done in the original
contract period.

In view of the important objectives of the project being
developed, the complainant also asked the Ombudsman to
support the NGO’s request for a new contract with the
Commission. Since this aspect was not part of the original
complaint, and as the institution had no opportunity therefore
to comment on it, the Ombudsman did not deem it appropriate
to consider this new aspect. Furthermore, the EC Treaty
empowers the European Ombudsman to inquire only into
possible instances of maladministration in the activities of
Community institutions and bodies. It is therefore beyond the
remit of the Ombudsman to mediate before a Community
institution in order to support the application for financial
assistance of a particular project.

In May 1999, the complainant wrote again to the Ombudsman
stating that despite the Commission’s assurances, final pay-
ment of the grant had not been yet made. Having contacted
the responsible Commission services, the Ombudsman was
informed that the bank transfer to the complainant had already
taken place. A copy of the bank operation was forwarded to
the complainant in June 1999.

The decision

On the basis of the information provided by the complainant
and the opinion submitted by the European Commission, the
Ombudsman concluded that the case had been settled by the
European Commission to the complainant’s full satisfaction.
The Ombudsman therefore decided to close the case.

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REIMBURSEMENT OF A GRANT UNDER THE SOCRATES PRO-
GRAMME

The inquiry

Decision on complaint 968/98/ME against the European Com-
mission

The Commission’s opinion

The complaint

In September 1998, Mrs K. made a complaint to the Ombuds-
man concerning the treatment of her application for a grant
under the Socrates programme and in particular the fact that
the European Commission had demanded reimbursement of
the grant.

to widen the intellectual horizon of

In February 1996, Mrs K., a teacher at a public school of
education for adults, had applied for a grant under the Socrates
programme of DG XXII of the Commission. The grant was
meant
low-educated
women by meeting people in the same situation in other
Member States. A decision on the awarding of the grant should
have been communicated to the complainant in June 1996.
Only in September 1996 was she informed that she had been
awarded ECU 2 000 to perform preparatory visits. The money
finally arrived in May 1997, 8-9 months later.

In May 1997, when the money arrived, the complainant was
occupied with examinations and she had to postpone the
realisation of the project. It then appeared that the schools that
had invited the complainant for preparatory visits in the spring
of 1996 were no longer interested in continuing the project.
The complainant therefore wrote to the Commission twice,
asking if she could postpone the visit to January 1998. She did
not receive any replies, which she considered to be a positive
answer. In January 1998 she went to Kensington-Chelsea
College in London and established a partnership.

In its
The complaint was forwarded to the Commission.
opinion, the Commission shortly explained the aim of the
Socrates programme. It then pointed out that the delayed
payment, from September 1996 until May 1997, occurred
because the complainant did not send the Commission any
bank details and the signature of the legal representative of the
project. However, the Commission expressed understanding
for the fact that further delays had caused problems for the
complainant.

The Commission pointed out that the preparatory visit took
place outside the time set out in the contract and that the
complainant, in changing the cooperation partner indicated in
the contract, had decided to change the conditions of the
contract unilaterally. According to the Commission, the Tech-
nical Assistance Office was, therefore, correct in requesting
reimbursement of the grant. However, the Technical Assistance
Office did not rule out that administrative irregularities could
have taken place when requesting repayment. The Commission
regretted that the situation had occurred and considered that
it should take into account the problems the complainant had
to face. It, therefore, decided to prolong the term of the
agreement so that the visit performed by the complainant fall
within the term.

The Commission finally noted that the applicant had to fulfill
the commitments as laid down in the terms of the agreement.
This included giving the Commission all the information
regarding the change of cooperation partner and the final
report. The Commission would then make the final approval
of the project.

The complainant’s observations

In her observations, the complainant stated the following:

In March 1998, the Commission sent the complainant a
request for reimbursement of the grant. The complainant sent
the Commission a letter explaining the situation and enclosing
all the relevant documents, including a copy of the partnership
agreement with Kensington-Chelsea College. The complainant
then received a reminder of the reimbursement request asking
for immediate payment. Again, she sent a letter explaining the
situation. She then received an unfriendly letter insisting on
repayment. The letter further referred to the fact that late
payment of the grant was caused by the complainant not
sending her bank details. This was completely new to the
complainant.

The complainant was happy with the fact that the Technical
Assistance Office did not rule out that administrative irregu-
larities could have taken place when requesting reimbursement
of the grant.

The complainant contested that she had changed the con-
ditions of the contract unilaterally, referring to the letters sent
to the Technical Assistance Office, asking to postpone the visit
and the fact that she did not receive any replies from the
Office. The complainant further pointed out, that she under
fulfilling the
no circumstances had the intention of not

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commitments of the contract. She stated that this was obvious
from her letter of 10 June 1998, in which she welcomed the
evaluation request and submitting of the final report.

The inquiry

Further information from the complainants

In a telephone call from the Office of the Ombudsman to the
complainant, the complainant expressed satisfaction with the
fact that the reimbursement request had been withdrawn.

In February 1999, the complainants informed the Ombudsman
that the Commission had now issued the addendum to the
contract, although no payment had yet been made under the
addendum.

The decision

The Commission’s opinion

The Commission’s request for reimbursement of the grant

The Commission requested reimbursement of the grant on the
grounds that the complainant had performed the preparatory
visit outside the time-table set out in the contract and that
the contract
the complainant changed the conditions of
unilaterally. However, the Commission stated that it could not
rule out that administrative irregularities could have taken
place when requesting reimbursement of
the grant. The
Commission therefore decided to prolong the term of the
agreement so that the visit performed by the complainant falls
within the term.

Conclusion

It appeared from the Commission’s comments and the com-
plainants’s observations that the Commission had taken steps
to settle the matter and had thereby satisfied the complainant.
The Ombudsman therefore closed the case.

The complaint was forwarded to the Commission.
In its
opinion the Commission stated that it had re-examined its
position and settled the dispute with the complainants.

The complainants’ observations

The Ombudsman asked the complainants to comment on the
opinion of the Commission but no written observations were
received by the complainants. However, in a telephone call
from the Ombudsman’s services to the complainants, they
confirmed that the addendum had been made and that the
case, as far as the original complaint was concerned, was
settled. They further stated that they had not yet received
payment on the addendum but it appeared that they did not
wish to pursue the payment issue at this stage.

The decision

The complainants complained about the Commission’s failure
to issue an addendum to a Phare contract. During the inquiry,
the Commission re-examined its position and issued the
addendum to the contract. The complainants expressed satis-
faction with the action of the Commission.

FAILURE OF THE COMMISSION TO ISSUE AN ADDENDUM TO
A PHARE CONTRACT

Conclusion

Decision on complaint 1123/98/IJH against the European Com-
mission

The complaint

In February 1995 a Phare Contract was signed between the
Commission and Glasgow City Council and the Council of
European Municipalities and Regions. In 1995 the managing
agents estimated that there would be a significant underspend
on the project. Following discussions with the Commission, it
was decided how the underspend would be used. The managing
agents were later told by the Commission that an addendum
would be necessary and the preparations for an addendum
started in June 1996. In July 1997, the Commission formally
accepted the need to issue an addendum and requested
information from the complainants which was delivered to the
Commission in October 1997. Because of the Commission’s
failure to issue the addendum to the contract, in October 1998
the complainants complained to the Ombudsman.

It appeared from the Commission’s opinion and the complain-
ants’ observations that the Commission had taken steps to
settle the matter and thereby satisfied the complainants. The
Ombudsman therefore closed the case.

REIMBURSEMENT OF TRAVEL COSTS FOR CANDIDATES IN
ANNULLED TESTS

Decision on complaint 1288/98/PD against the European Com-
mission

The complaint

In November 1998 Mr S. made a complaint against the
European Commission. On 14 September 1998 the Com-
mission organised written tests in competition COM/A/11/98.
the Commission considered itself
Shortly after the tests,
obliged to annul the tests, in particular because there had been
a leak of the questions asked to the applicants.

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The complainant participated in the tests, at the exam venue
in Düsseldorf. The complainant lived in New York, and had to
bear the costs for a travel ticket New York - Düsseldorf and
back in order to take part in the tests. Given the subsequent
annulment of the tests, he considered that the Commission
should reimburse his costs. He addressed the Commission on
this subject but in vain.

PAYMENT OF COMPLAINANT’S INVOICES

Decision on complaint 1331/98/JMA against the European Com-
mission

The complaint

Against this background, he lodged the complaint with the
European Ombudsman.

The inquiry

The Commission’s opinion

In its opinion the Commission regretted that it had had to
annul the tests in question. Furthermore it explained that
normally,
it did not dispose of sufficient budgetary funds
for reimbursing applicants. However, given the exceptional
character of the situation, it had decided to reimburse appli-
cants for their travel costs, provided that they participated in
the tests organised in replacement of the annulled ones. The
reimbursement would be subject to maximum limits.

The complainant’s observations

No observations were lodged. In the absence of observations,
the Ombudsman’s services contacted the complainant. The
complainant expressed satisfaction with the Commission’s
action and thanked the Ombudsman for his intervention.

The decision

Reimbursement of travel costs

In December 1998, Mr J. sent a complaint to the European
Ombudsman on behalf of FIAB, a Spanish Federation, concern-
ing the failure of the European Commission to pay the
amounts due for a contract signed with the institution
(ALR/B7-311/95 138/E3/001), as well as to properly reply to
his numerous written requests.

In February 1998, FIAB signed a contract with the European
Commission in the framework of the Al-Invest programme.
Under the terms of the contract, the complainant had to
carry out a series of initiatives related to a conference with
representatives from the European Union and Mercosur, which
was to be held on 2 and 3 March 1998. The payments for the
contract were to be made in different instalments: 30 % of the
total amount had to be paid after the signature of the contract,
40 % at the conclusion of the meeting, and the rest once the
final report had been approved.

Despite the fact that FIAB forwarded all the relevant infor-
mation to the European Commission, the payments corre-
sponding to the second and to the final instalments were not
made. On a number of occasions the complainant contacted
the Commission services, among others by telephone and by
letter dated 17 September 1998. The replies given to the
contractors to explain the situation of their payment were
allegedly unsatisfactory.

Since the situation did not improve, the complainant lodged a
complaint with the European Ombudsman on behalf of FIAB.
In the letter, he claimed that the Commission had not paid the
amount dues, and that the institution had not properly replied
to his request for information.

The inquiry

The Commission’s opinion

It appeared from the Commission’s opinion that it had taken
steps to grant the complainant’s claim.

Conclusion

It appeared from the Commission’s opinion and the complain-
ant’s observations that the Commission had taken steps to
settle the matter and had thereby satisfied the complainant.
The Ombudsman therefore decided to close the case.

The complaint was forwarded to the European Commission.
Its opinion was in summary the following:

The Programme Al-Invest assisted businesses in Latin America
by setting up a network of support centres, as well as
specialised meetings and partnerships. In this context, FIAB
submitted a proposal to organise a meeting, which was to be
financed jointly by private and Community funds. The EC
contribution could not exceed half of the total estimated
expenditure.

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The Commission paid the first part of its contribution in
April 1998. The second instalment of 40 % was not paid
immediately, since it previously required that the Commission
approved the documentation submitted by FIAB. According
to the Commission, FIAB did not forward the complete
documentation on time.

In the complainant’s view a set of rules governing the EC
administrative procedure, similar to those followed by a
number of Member States, would be appropriate.

The decision

FIAB’s final report was only submitted on 12 November 1998.
However, since it did not contain all relevant documents, the
Commission had to remind the complainant a few days later
of
the missing documentation as a
condition for the payment of the second and final instalments.

the need to submit

On the basis of the information provided by the complainant
and the observations submitted by the European Commission,
the Ombudsman concluded that the case had been settled by
the European Commission to the complainant’s satisfaction.
Against this background, the European Ombudsman decided
therefore to close the case.

The Commission recognised that the late payment was due to
the fact that its external relation services had been thoroughly
reorganised in 1998, with the creation of the Joint Relex
Service (SCR). The transfer of files and changes for task-
managers made it harder
to deal with approximately
2 000 projects, including the present one. Despite these prob-
lems and some electronic complications, SCR made great
efforts to close all pending Al-Invest files before the end of
1998. Following this undertaking, the Commission indicated
that the FIAB invoices had been already paid.

As regards the alleged failure of its services to provide a
satisfactory reply to the complainant’s repeated request for
payment, the Commission considered that its services had
replied to the best of their ability. Moreover, the Deputy Head
of Unit of DG IB had explained the situation to the complainant
by telephone on a number of occasions, even though he was
not in charge of payment matters.

Finally the Commission regretted that payments had been
delayed, although it considered that its services had done their
best under the prevailing circumstances.

The complainant’s observations

the complainant confirmed that

the
In his observations,
Commission had finally paid the sums due, and expressed
his gratitude to the Ombudsman. On behalf of FIAB the
complainant accepted the apologies from the European Com-
mission. He also mentioned that although his organisation
could have claimed interests due for late payments, it had
decided not to do so. The complainant underlined furthermore
that the problem showed the inefficiency of the Commission
procedure, and the need for clearer rules. The complainant
claimed that due to the lack of any clear procedural guidelines
at Community level, European citizens do not know what to
expect from the EC administration, nor whom to address.

Further remarks

The Ombudsman received a number of complaints which
referred to instances of maladministration which could had
been avoided if clear information had been available about the
administrative duties of Community staff towards the citizens.
In order to correct this deficit, the Ombudsman launched an
own initiative inquiry on 11 November 1998 into the existence
and the public accessibility,
in the different Community
institutions and bodies, of a Code on good administrative
behaviour of the officials in their relations with the public
(OI/1/98/OV).

FAILURE TO REPLY — INTER-REGIONAL PROJECTS

Decision on complaint 19/99/(XD)ADB against the European
Commission

The complaint

In February 1996, the complainant addressed two letters to
the European Commission, on behalf of two organisations.
One was addressed to Directorate General (DG) XIII and aimed
at obtaining information about the existence of direct financial
support by the Commission for projects promoting the use of
interlingua (modern Latin). The other one was addressed to
DG XVI and aimed at informing the Commission of the
creation of an organisation promoting ‘l’Occitanie’ (regions in
France, Italy and Spain in which the langue d’oc is spoken).
The complainant inquired as to if, and how, the Commission
could help this new organisation.

Having received no answer to these letters the complainant
contacted DG XIII again on 24 December 1996, and DG XVI
on 14 November 1997, explicitly referring to his previous
correspondence. These letters were not replied to either. As
the complainant considered this to be a very negative attitude
by the Commission towards his two important initiatives, he
asked the European Ombudsman to investigate the matter.

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The inquiry

The Commission’s opinion

The opinion of the European Commission on the complaint
was in summary as follows: Regarding the letters addressed to
its DG XIII, the Commission recognised that they had been
received and duly attributed to the former Head of Unit
XIII/E/6. The Commission deeply regretted that no appropriate
follow-up had been given and stressed that the failure to reply
was caused by some administrative problems which by no
means implied a negative attitude towards the issues of concern
to the complainant. Following a general reorganisation of
DG XIII, the tasks of unit XIII/E/6 were transferred to unit
XIII/E/4 which prepared an answer to the complainant’s letters
on 22 March 1999.

As far as the letters addressed to DG XVI were concerned, the
Commission regretted that no proper reply had been sent to
the complainant, and it stated that this did by no means denote
any negative attitude towards Occitanian culture.
It put
forward that the large amount of work being dealt with by
DG XVI might explain the failure to reply, without however
justifying it. In its opinion to the Ombudsman the Commission
explained that the complainant’s project could only be funded
following a general tender procedure. During the period 1996-
1998, two out of three calls for tenders had to involve
central European countries. Between 2000 and 2006 however,
interregional co-operation projects will be funded in the
framework of the Interreg programme.

The complainant’s observations

The European Ombudsman forwarded the Commission’s
opinion to the complainant with an invitation to make
observations. The complainant did not send in any obser-
vations.

On 1 September 1999 the complainant was contacted by the
European Ombudsman’s services by telephone. He informed
the European Ombudsman that he had indeed received a letter
from DG XIII and that in the meantime he also received several
calls for tender likely to be of interest for his organisation.

2.

Further to the intervention of the European Ombudsman,
the Commission acknowledged that some administrative
problems had led to this failure to reply, apologised for it
and took action to settle the matter. The complainant
informed the Ombudsman that he had received late but
fully satisfying answers to his requests and several calls
for tender which were of interest to his organisation.

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint it appeared that the Commission had taken steps to
settle the matter and had thereby satisfied the complainant.
The Ombudsman therefore decided to close the case.

ALLEGED FAILURE TO PAY BY THE COMMISSION

Decision on complaint 478/99/IP against the European Commission

The complaint

In April 1999, Mr A. lodged a complaint with the European
Ombudsman against the European Commission, concerning
the failure of DG X of the European Commission to provide
the payment of 100 Euros for his participation in the Call for
tender No PR — AMI/96-08, in 1997.

The complainant presented a project for the promotional
campaign for the Euro launched by the European Commission
through the call for tender No PR — AMI/96-08. As estab-
lished in article 2.5 of the call for tender, all applicants were to
receive the sum of 100 Euros for their participation, regardless
of the result of the selection procedure.

Despite this provision and several contacts with the Com-
mission services over a period of two years, Mr A. received no
in April 1999, he complained to the
payment. Therefore,
Ombudsman against the Commission’s failure to pay him the
sum in question.

The complainant thanked the Ombudsman for his inter-
vention, and, although he regretted the delays that had
occurred, declared to be fully satisfied with the information
obtained from the Commission.

The inquiry

The Commission’s opinion

The decision

Failure to reply to requests for information

The complaint was forwarded to the Commission.
In its
opinion the institution confirmed that the payment was finally
made in June 1999.

1.

The complainant addressed two different departments of
the European Commission and asked for information
which he did not receive even though he sent two
reminders.

The Commission explained that the long delay was due to
both the incorrect transmission of the bank details by the
complainant and the initial refusal by the complainant’s bank
to receive the payment in Euros.

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The Commission also stated that an intense exchange of
correspondence had been kept between its services and the
complainant in order to solve the problem. After having
received all the bank details and references in February 1999,
a new procedure for the payment had to be started. Therefore,
it was possible to transfer the sum of 100 Euros to the
complainant only in June 1999.

The objective of the Commission’s services is to reimburse
travel expenses to experts participating in meetings organised
by the Commission within 60 days. During this period of time,
the Directorate General (DG) organising the meeting shall
gather the expert’s bank identity. DG IX shall then fix the
amounts to be reimbursed, and ask for the payment, which
has to be authorised by DG XX and carried out by DG XIX.

The complainant’s observations

The Ombudsman asked the complainant to comment on the
opinion of the Commission. No written observations were
received. However, during a telephone call between the
Ombudsman’s services and the complainant, he confirmed
that the payment was made in June 1999, to his satisfaction.
Furthermore, the complainant thanked the Ombudsman for
his efforts in resolving the case in a satisfactory way.

The Commission undertook to replace its computerised
accounting system with a new one (Sincom 2) by the end of
1998. This major change, which was meant to accelerate the
reimbursement procedure, led to some problems and delays
which were finally solved in March 1999 but which may have
affected the dealing with the complainant’s file. Moreover,
the delays suffered by the
the Commission stressed that
complainant were increased by the fact that he failed to
provide essential information in due time.

The decision

On the basis of the information provided by the complainant
and the opinion submitted by the European Commission, it
appeared that the case had been settled by the Commission to
the complainant’s full satisfaction. The Ombudsman therefore
decided to close the case.

DELAYS IN THE REIMBURSEMENT OF TRAVEL EXPENSES

Decision on complaint 500/99/ADB against the European Com-
mission

The complaint

The complainant was occasionally invited by the European
Commission, as an expert, to attend meetings in Brussels. The
Commission reimbursed his travel expenses, however he
considered the procedure to be excessively long. He for
instance had to wait for seven and a half months for a
reimbursement. In this context the complainant got in touch
with officials of the Commission and with Members of the
European Parliament to express his dissatisfaction. He even
refused to participate in a meeting because of this problem.

With regard to the fact that the complainant was repeatedly
told that the delays were inherent in the ‘system’, he held that
this should be reformed and asked the European Ombudsman
to investigate the matter.

The inquiry

The Commission’s opinion

However, the Commission regretted the inconvenience and
expressed its determination to avoid similar situations.

The complainant’s observations

The European Ombudsman forwarded the European Com-
mission’s opinion to the complainant with an invitation to
make observations.
In his reply of 18 August 1999, the
complainant expressed his satisfaction with the work of the
European Ombudsman. Further, he welcomed the efforts made
by the Commission to improve the reimbursement system,
stressing that his complaint with the Ombudsman aimed at
pointing out a general problem, without focusing on his
particular case.

The complainant, however, rejected the allegations made by
the Commission regarding his being late in handing in
information necessary for the reimbursement. He claimed that
he had in good faith, and without any objection of the
Commission’s officials,
followed the procedure applicable
under the old reimbursement system. Later he was informed
that the procedure had changed and he was requested to
provide information again, which he promptly did. The
complainant considered therefore that the full responsibility
for the delay lay with the Commission.

The decision

The delays in the reimbursement of travel expenses

The opinion of the European Commission on the complaint
was in summary the following:

1.

The complainant, an expert who was occasionally invited
by the Commission to attend meetings organised in
Brussels, complained against the Commission because of

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the delays in the reimbursement of travel expenses. He
wished to see an improvement of the reimbursement
system. The Commission declared that it was committed
to improving the system and that the delays that had
occurred in the complainant’s case were precisely attribu-
table to difficulties occurred while a new system was
being set up.

2.

3.

The Ombudsman noted that the Commission committed
itself to carrying out reimbursements of travel expenses
within a period of 60 days and that it apologised for the
inconvenience caused by the setting up of a new, more
efficient, accounting system.

The complainant had expressed his satisfaction with
the Commission’s efforts to improve its reimbursement
procedure, and informed the Ombudsman that the spec-
ific case of late payment mentioned in his complaint was
only meant to be an example of the malfunctioning of
the system. Therefore the Ombudsman considered that
there was no need to investigate the matter any further.

Conclusion

It appeared from the European Commission’s opinion and the
complainant’s observations that the Commission had taken
steps to settle the matter and had thereby satisfied the
complainant. The Ombudsman therefore decided to close the
case.

3.4.

FRIENDLY
OMBUDSMAN

SOLUTIONS

ACHIEVED

BY

THE

3.4.1. THE EUROPEAN COMMISSION

FULL PAYMENT AND INTEREST FOR REGIONAL CO-ORDINATOR

Decision on complaint 955/97/IJH against the European Com-
mission

The complaint

In September 1997, Mr McGowan MEP made a complaint on
behalf of Mr M. According to the complaint, the relevant facts
are as follows. In November 1995, Mr M. was nominated to
act as a long-term observer (LTO) on behalf of the European
Union in the 1996 elections to the Palestinian Council. He was
offered a daily allowance as an LTO. When he arrived in East
Jerusalem, the Deputy Head of the European Electoral Unit
asked him to act as a Regional Co-ordinator and offered
appropriate recompense for this responsibility. The complain-
ant accepted and worked as a Co-ordinator until completion

of the mission in February 1996 However, when he asked the
Commission to pay him the fee level appropriate for a Co-
ordinator, the Commission refused to make any additional
payment.

The complainant claimed that the Commission should pay
him the difference between the rate of pay for a Coordinator
and the daily allowances for an LTO, which he calculated as
£ 4 073.

The inquiry

The Commission’s opinion

In its opinion, the Commission stated that the observation of
the Palestinian elections does not concern an activity of the
European Community conducted under the responsibility of
the Commission, but a joint action adopted by the Council on
the basis of Article J 3 of the Treaty on European Union within
the framework of the Common Foreign and Security Policy.

The joint action was financed from the general budget of
the European Community under the responsibility of the
Commission. Accordingly, the Commission made the necess-
ary funds available and acted as financial manager of the joint
action in conformity with Articles J 11 of the Treaty on
European Union and 205 of the EC Treaty. Salaries, daily
allowances and other financial compensation of observers,
coordinators and others were determined by the respective
governments and the Council. It was not in the Commission’s
power to nominate regional co-ordinators or to fix unilaterally
the financial terms of their work, nor has it done so.

The Commission stated that it had no knowledge of the
complainant’s arrangements with the Deputy Head of the
European Electoral Unit (EEU), who is not a Commission
official nor in any other way its representative. In any case, the
EEU had no power to nominate regional coordinators because
such a nomination would have had to be made by the Council.
The Commission is not therefore in a position to accede to the
complainant’s request
for additional payment at its own
initiative, but would be ready to refer the matter to the Council
for decision.

The complainant’s observations

In summary, the complainant’s observations claimed that the
limits to the authority of the EEU explained in the Com-
mission’s opinion were not known to him at the time.The
Deputy Head of the EEU had assured him in good faith that he
would be recompensed for acting as a Co-ordinator and had
been embarrassed that he was unable to fulfil the commitment
by the time the mission ended.

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Further inquiries

On 9 September 1998, the Ombudsman wrote to the Com-
mission accepting its proposal to refer the complaint to the
Council and requesting information on the Council’s response
by 31 October 1998. On 15 October 1998, the Commission
forwarded to the Ombudsman a copy of a letter which its
services had sent
to the Council on 14 October 1998
requesting the Council to deal with the matter as it deems fit
and to advise the Commission accordingly.

relevant Treaty provision are limited to deciding to charge a
given sum to the Community budget, whereas the implemen-
tation of the budget falls to the Commission. Since there
appeared to have been a misunderstanding between the
Council and Commission in this case and in order to speed
things up, the Council had sent a copy of the letter to the
Secretary General of the Commission.

The Ombudsman’s services then contacted the General Sec-
retariat of the Commission by telephone to request that the
Commission services act to resolve the matter before the end
of July 1999.

Since the Ombudsman had received no further communication
from the Commission or the Council he wrote again to the
Commission on 1 March 1999, asking to be informed of the
results of its approach to the Council. On 30 March 1999, the
Commission answered, enclosing a draft reply from the
Common Foreign and Security Policy counsellors which
contained the following conclusions:

On 16 July 1999 the complainant forwarded to the Ombuds-
man a copy of his correspondence with the Commission
services, from which it appears that the Commission has dealt
with the matter through its procedure for contractual dispute
settlement and agreed to pay the complainant the full sum
which he claimed, together with interest. The complainant
considers that a satisfactory conclusion has been reached.

of

Council

decision

25 September

‘1. The
1995
(95/403/CFSP, OJ L 238 of 6.10.1995, p. 4) explicitly
provides that members of the European Electoral Unit may be
required “as necessary” to undertake preparatory work, for which
“they will be remunerated accordingly” (cf Annex 1, para 6).
Should it be established therefore that Mr M. effectively carried
out, on a provisional basis , such duties at the request of the
Head of Unit or his Deputy, the Council considers that [the
complainant] does not need to establish any special form of
appointment.

2. The Head and Deputy head of the Electoral Unit represent
the Presidency in the powers it holds under article J5 (2) of the
TEU,
their decisions and actions should be considered as
implementing a CFSP measure on the basis of a valid delegation
of powers. If, on consideration of the material facts, — which
are not in the Council’s purview —, it appears that such powers
were exceeded in the case in point, this should not be at the
expense of third parties such as [the complainant].’

The Commission also remarked that it had not received any
authority, instructions or funds to pay the complainant.

After unsuccessfully attempting to obtain information from
the Council services by telephone and e-mail, the Ombudsman
wrote to the Secretary General of the Council on 30 April
1999, asking for confirmation of the above draft statement
and information about the modalities of an eventual payment
to the complainant. By letter dated 25 May 1999, received by
the Ombudsman on 21 June 1999, the Council informed the
the draft statement had been formally
Ombudsman that
approved by the Council on 30 March 1999. The letter also
stated that the Council’s financial responsibilities under the

The decision

1.

2.

3.

4.

The complainant claimed that the Commission should
pay him the difference between the daily allowance which
he had received as a European Union observer of the
Palestinian election process in 1995-1996 and the fee
level appropriate for the role of Regional Coordinator
which, at the request of the European Electoral Unit, he
had actually performed.

The work of the European Electoral Unit was carried out
under the terms of a joint action of the Council in the
field of the Common Foreign and Security Policy. The
Commission acted as financial manager of the joint
action.

The Council accepted the principle that the complainant
should be paid for the work which, at the request of the
European Electoral Unit, he had actually performed.

The Commission subsequently agreed to pay the full sum
claimed by the complainant, together with interest. The
complainant considers that a satisfactory conclusion has
been reached.

Conclusion

Following the Ombudsman’s inquiry,
it appeared that a
friendly solution to the complaint had been agreed between
the Commission and the complainant. The Ombudsman
therefore closed the case.

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3.5. CASES CLOSED WITH A CRITICAL REMARK BY THE

OMBUDSMAN

Against this background, the complainant lodged the com-
plaint with the European Ombudsman.
In the complaint
the European Parliament had committed
he alleged that
maladministration by:

3.5.1. THE EUROPEAN PARLIAMENT

— refusing him access to his examination papers,

REASONS FOR FAILURE IN A COMPETITION

Decision on complaint 466/97/PD against the European Parliament

— discriminating against him.

— failing to give reasons why he failed the competition and

The complaint

In May 1997, Mr P. made a complaint to the Ombudsman
concerning his participation in competition PE/81/A for
assistant administrators of German mother tongue, organised
in 1995 by the European Parliament. The complainant applied
under this competition and was successful in the examinations.
However, he was not included in the reserve list, as the notice
of competition provided that only the ten best applicants
would be put on the list. The complainant was not among the
ten best candidates. This was communicated to the complain-
ant by letter.

Subsequently an exchange of correspondence took place
between the complainant and the Parliament. In this corre-
spondence, the complainant put forward that he wanted access
to his examination papers and that he wanted to know the
reasons why he had failed in the competition. Thirdly he put
forward that he had been discriminated against. The facts
underlying this allegation of discrimination were: During the
preparation for the competition the German authorities made
contact with the European Parliament, to know whether the
Parliament would be prepared to annex an information sheet
to the notice of competition. This sheet provided information
on seminars that applicants could attend in order to prepare
themselves for the competition. The seminars were organised
by two German institutes for European policy. As the com-
plainant did not receive this information sheet, he considered
that he had been discriminated against.

In its answers to the complainant’s letters the European
Parliament informed him of the marks he had obtained in the
different examinations. However, the European Parliament did
not give him access to his examination papers; nor did it give
more detailed reasons for his failure in the competition. On
both points the European Parliament invoked the case law of
the Court of Justice according to which, in The Parliament’s
view, such information could not be communicated without
violating the confidentiality of the deliberations of the Selection
Board. As concerns the discrimination issue, The Parliament
stated that it had done everything in its power with regard to
the dissemination of relevant information to ensure the equal
treatment of applicants.

In support of the first allegation, the complainant put forward
that under national law, an applicant normally had an extensive
right to receive information about himself. In support of the
second allegation, the complainant put forward that principles
of good administration require the administration to give
reasons for a decision such as the one in question.

As concerns the third allegation, the complainant put forward
that the European Parliament had failed to ensure that all
applicants received the information sheet in question. He
stated amongst other things that the had made contact with
Community information offices in Germany, both Com-
mission and Parliament offices, which did not have any
knowledge of the information sheet in question. Not having
received the information sheet, he had fewer chances of
succeeding in the competition. Thus he had been discriminated
against in comparison with other applicants.

The inquiry

The Parliament’s opinion

The complaint was forwarded to European Parliament. In its
opinion the Parliament maintained the position it had taken in
the correspondence preceding the complaint.

The complainant’s observations

In his observations the complainant maintained the complaint.

Further inquiries

After a careful examination of the Parliament’s opinion and
the complainant’s observations thereupon, the Ombudsman
addressed the European Parliament to obtain more detailed
information on the procedures followed by the Parliament in
order to ensure dissemination of the information sheet to all
applicants. Furthermore the Ombudsman asked to inspect the
Parliament’s file.

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The Parliament’s second opinion

In its second opinion, the Parliament explained the procedure
it had followed ensuring the dissemination of the information
sheet. In the advertisement made by the European Parliament
concerning the competition, it was indicated that applicants
should address the Parliament’s central services or the infor-
mation office in Bonn in order to obtain the notice of
competition. These services were in possession of the infor-
mation sheet. Furthermore,
in case that applicants should
address other representations or information offices of the
Communities in German speaking countries, the Parliament
addressed these offices in order to underline the importance of
handing out the information sheet in question to applicants
who requested the notice of competition.

The Parliament also indicated that participation in the prepara-
tory seminar did not guarantee success in the competition and
that an applicant’s failure in the competition due to the
absence of the information sheet would be very difficult to
establish.

The complainant’s further observations

In his observations, the complainant put forward that appar-
ently there was no formal
legal basis for the European
Parliament’s acceptance of disseminating such information
about preparatory seminars. Furthermore he repeated that he
had been in contact with information offices in Germany
which had no knowledge of the information sheet in question.

The inspection

The purpose of the inspection was to verify that the complain-
ant’s examination papers had been marked in accordance with
principles of good administration. Selection Boards have
wide discretionary powers in assessing applicants under a
competition and this assessment can only be set aside in case
of manifest violation of a rule or principle binding upon the
Selection Board. The inspection did not show any violation.
However, it appeared that the Parliament was not in possession
of the corrected version of one of the complainant’s examin-
ation papers.

The decision

1. Access to examination papers

In the present state of Community law, it appears that
there is no legal obligation for Selection Boards to disclose
examination papers to the applicant concerned who so
requests. On the other hand, there appears to be no
obligation for Selection Boards to refuse disclosure. The

question is thus whether principles of good adminis-
tration require the administration to give access to
examination papers. This question was the subject of the
Ombudsman’s
inquiry
1004/97/PD. The Ombudsman did therefore not inquire
further into this aspect of the present complaint.

on-going

initiative

own

2.

Failure to give reasons

It appeared from the foregoing that in the present state
of Community law there is no legal obligation upon
Selection Boards to disclose the examination papers to
the applicant concerned who requests so. Having regard
to this and to the wide discretion of Selection Boards,
recognised by the Community courts, it is all the more
important that the Selection Boards comply with the
requirements which follow from the case law of the
Community courts and principles of good administration.
Therefore, Selection Boards should provide applicants
with the reasons necessary for understanding the
the
decisions the Boards take.
Selection Board just communicated the marks obtained
by the applicant. This does not appear to meet the said
requirements. The Ombudsman therefore addressed a
critical remark to the European Parliament to that effect.

In the present case,

3. Discrimination

3.1. Firstly, it should be observed that there appears to be
no provisions hindering the European Parliament from
accepting a government’s request to disseminate infor-
mation concerning preparatory seminars to a compe-
tition. In accepting such a request, the European Parlia-
ment shall obviously comply with the rules and principles
binding upon it.

3.2. It is obvious that the European Parliament should take
the necessary steps to ensure dissemination of
the
information sheet that it had undertaken to disseminate,
and it
the complainant did not
receive it. The question is whether this constitutes an
infringement of the principle of equal treatment with the
legal consequences this entails.

is established that

In addressing this question, one has to distinguish
between information that the Parliament is under an
obligation to communicate to all applicants as the
organiser of the competition, and other information. It is
clear that the principle would have been violated if the
Parliament had failed to provide, for instance, the full
wording of the examination questions to all applicants.

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In this case, the information concerned was not part of
the running of the competition and the Parliament had
undertaken to disseminate it in the interest of German
authorities; furthermore, there is no evidence that the
reception of this information would have had an impact
on the applicant’s performance in the competition. Under
these circumstances,
the
fact that one or more applicants did not receive the
information sheet
in question does not constitute a
violation of the principle of equal treatment. As there is
no conclusive evidence to the effect that the Parliament
did not undertake the necessary measures to ensure the
dissemination of the information sheet, there appeared to
have been no maladministration by the Parliament in
relation to this aspect of the complaint.

the Ombudsman finds that

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark:

Selection Boards, in accordance with the case law of the
Community Courts and principles of good adminis-
tration, should provide applicants with the reasons
necessary for understanding the decisions the Boards
take. Therefore, the Ombudsman found it insufficient
that, despite the complainant’s request, the Parliament
did not provide more detailed information on why he did
not succeed in a competition.

Given that this aspect of the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

European Union. He put forward that the Council had failed
to answer a letter by the foundation.

In accordance with the Ombudsman’s normal practice in cases
concerning failure to reply to citizens’
letters, his services
contacted the Council telephonically to hear when a reply
would be given. These contacts were in vain. The Ombudsman
therefore decided to open the inquiry.

The inquiry

The Council’s opinion

In its opinion, the Council stated that the letter had been
received and registered by the Council. After thorough examin-
ation, the relevant services of the Council took careful note of
the declaration that the letter contained. Given the declaratory
nature of the letter and the absence of concrete questions in it,
the services decided that it was not necessary to reply to it.

The Council added that in general, it strove to answer all
incoming letters by at least an acknowledgement of receipt
and,
in cases where questions are asked, by submitting
substantial remarks.

The complainant’s observations

No observations were received from the complainant.

Further remarks

The decision

At the inspection of the Parliament’s file, it appeared that the
file was not complete. As stated above, the file did not contain
the marked copy of one of the complainant’s examinations.
Neither did it contain the evaluation criteria established by the
Selection Board. This led the Ombudsman to make the
following further remarks: The Parliament should ensure that
the file of a competition contains the marked copies of the
applicants’ examinations as well as the evaluation criteria
established by the Selection Board.

3.5.2. THE COUNCIL OF THE EUROPEAN UNION

FAILURE TO REPLY

Decision on complaint 451/98/PD against the Council of the
European Union

Failure to reply to the letter in question

Principles of good administration require that the adminis-
tration answers citizens’ submissions. In this case, the Council
decided not to reply to the complainant because of the
declaratory nature of the letter in question. However, from the
moment the complaint was lodged with the Ombudsman, it
was clear to the Council that the complainant expected a reply.
Still, the Council did not reply and thus, it acted in violation of
principles of good administration. The Ombudsman therefore
addressed a critical remark to the Council to the effect that it
should have replied to the letter in question. Since the subject
of the letter had lost its topicality, the Ombudsman did not
pursue the matter further.

The complaint

Conclusion

On behalf of his foundation, Mr N. lodged a complaint with
the European Ombudsman concerning the Council of the

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark:

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the declaratory nature of

Principles of good administration require that the admin-
istration answers citizens’ submissions. In this case, the
Council decided not to reply to the complainant because
of
the letter in question.
However, from the moment that the complaint was
lodged with the Ombudsman, it was clear to the Council
that the complainant expected a reply. Still the Council
did not reply and thus, it acted in violation of principles
of good administration.

With the enlargement of the harbour in Garrucha, large ships
would be allowed to dock near the beach being regenerated,
and as a result, the complainant argued, the bathing waters in
the area could not possibly meet existing EC environmental
standards. Furthermore,
the project had been carried out
against the wishes of the majority of the local population,
which favoured the choice of a nearby harbour in Carboneras.

Given that this aspect of the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore decided to closed the case.

The complainant also indicated that the regional government
had provided misleading information to the relevant Com-
mission services in order to ensure Community funding. Thus,
the documentation submitted regarding the environmental
impact assessment of the project was inaccurate, and did not
include relevant considerations.

3.5.3. THE EUROPEAN COMMISSION

The inquiry

COMMISSION’S RESPONSIBILITY TO EXAMINE CLAIMS OF
IRREGULARITIES IN EC FUNDED PROJECTS

The Commission’s opinion

Decision on complaint 194/97/JMA against the European Com-
mission

The complaint

In February 1997, the Regional Ombudsman of Andalusia
transferred to the European Ombudsman a complaint which
involved the alleged failure of the Commission to take properly
into account the environmental consequences of some projects
financed by the Cohesion and the Structural Funds in the
Garrucha area, Almerı´a.

In January 1997, the complainant had written to the Director-
General of DG XVI of the Commission, informing him that his
services were financing two nearby projects in the town of
Garrucha, Almerı´a, which were by their nature incompatible.
The complainant argued that by doing so, the Commission
in
had raised great concern among the local population,
particular among fishermen and tourists. A copy of the letter
with some additional information was also sent to the Regional
Ombudsman of Andalusia. He opened an inquiry into the
matter as regards the role of the local and regional authorities
in the authorisation of the projects, and informed the European
Ombudsman of the alleged maladministration on the part of
the European Commission.

One of the projects involved the rehabilitation of the Garrucha
beach. The project had been carried out with a Community
contribution of 85 % of the total costs. EC funding had been
also given for the extension of the commercial harbour of the
same town. Both projects were being developed in the vicinity
of each other.

The complaint was forwarded to the Commission.
In its
opinion, the Commission indicated that the situation had
already been brought to its attention in 1995. Both projects
had received Community funding: the regeneration of the
Garrucha beach through the Cohesion funds, and the enlarge-
ment of the city’s harbour through the Structural Funds. The
Commission had approved funding of these projects, since
they appeared to meet the criteria for eligibility, and complied
with all relevant EC environmental provisions.

As regards the enlargement of the local harbour, the Com-
mission stated that the project complied with all applicable
rules, in particular the provisions of Directive 85/337/EEC
regarding environmental impact assessments of private and
public projects. Accordingly, the developer had carried out an
environmental assessment, which had been subject to public
comments. Following this consultation, the relevant Spanish
authorities had established the final environmental
impact
assessment which included some corrective measures. The
document was published in the Official Journal of the province
of Almerı´a on 11 July 1995. On the basis of this information,
the Commission had concluded that the project did not breach
the provisions of Directive 85/337/EEC.

The Commission pointed out that the initial selection had
been undertaken by the regional government of Andalusia.
This authority had included this particular project
in its
operation programme for the period 1994-1999. The Com-
mission underlined that the selection had been made by the
competent authority in using its powers, and with due respect
of the criteria for the management of EC Structural Funds
which is based on the subsidiarity and partnership principles.

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Having been informed of the potential incompatibility between
both projects, the Commission services raised the matter
In a written reply from
before the Spanish authorities.
the Spanish Ministry of Transport and Environment,
the
Commission was informed that the project to enlarge the
harbour would not extend its length, and therefore that its
impact on the nearby beach would be negligible.

In view of that information, the Commission concluded that
there was no reason to oppose funding for both projects, since
they seemingly complied with Community environmental
directives, and moreover there appeared to be no incompati-
bility between them.

The complainant’s observations

In his observations on the Commission’s opinion, the com-
plainant objected to the Commission’s view that the environ-
mental impact assessment of the project to enlarge the local
harbour had complied with EC requirements. As stated by the
complainant, the environmental statement carried out by the
developer had not been subject to a proper public consultation.
Moreover it contained several errors and included misleading
information. The final environmental assessment had also
omitted relevant information such as the effects of the enlarged
harbour on the nearby beach. On the basis of the same
allegations, the Superior Court of Andalusia had decided to
suspend temporarily the project until a judgement in the case
could be rendered.

In support of his allegations, the complainant enclosed some
pictures which showed the proximity of ships entering the
enlarged harbour to the beach being regenerated.

Further information

On November 1997, the Regional Ombudsman of Andalusia
wrote to the European Ombudsman informing him that his
office had decided to terminate consideration of his inquiry
into this complaint, since he had learnt that a regional court
was considering this matter, in particular as regards whether
the national authorities responsible had violated any legal rule
in the authorisation of one of the projects.

The decision

1.

Scope of the case before the European Ombudsman

by the responsible Spanish authorities to the Commission
to ensure Community financing for two projects.

1.2. It is important to recall that the EC Treaty empowers the
European Ombudsman to inquire into possible instances
of maladministration only in the activities of Community
institutions and bodies. The Statute of the European
Ombudsman specifically provides that no action by any
other authority or person may be the subject of a
complaint to the Ombudsman.

1.3. On the basis of the above provisions, the Ombudsman’s
inquiries had therefore been directed towards examining
whether there had been maladministration by the Euro-
pean Commission.

2. Alleged failure of the Commission to consider irregu-

larities brought to its attention

2.1. The complainant alleged that the Commission had failed
to consider properly the irregularities brought to its
attention regarding two projects being financed by Com-
munity funds in Garrucha, Almerı´a. These allegations
involved, (i) the non-compliance of the project to extend
the harbour of Garrucha with relevant EC environmental
directives, and (ii) their mutual incompatibility.

The Commission had indicated that on the basis of
the available information received, it appeared that the
enlargement of the harbour in Garrucha had been subject
to an environmental impact assessment in line with the
criteria set out in Directive 85/337/EEC. The institution
had no information, therefore, to identify a potential
infringement of the Directive in this case. As for the
incompatibility between the enlargement of the local
harbour and the regeneration of a nearby beach, the
Commission decided to set aside this claim, relying on
the assurances given by the Spanish authorities.

2.2. In order to evaluate whether there had been in this case
any instance of maladministration by the Commission, it
was necessary first to establish the relevant legal obli-
gations incumbent upon the institution.

1.1. The problem denounced by the complainant had its
origin in the allegedly misleading information submitted

The rules relating to the implementation of the economic
and social cohesion provided for by Article 130a of the
EC Treaty are laid down, among others, by Regulation

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(EEC) No 2052/88 as amended by Regulation (EEC)
No 2081/93 (1) which refers to all existing financial
instruments, and also by Regulation (EC) No 1164/94 (2)
as regards specifically the Cohesion Fund.

The need to make this type of funding compatible with
EC rules is clearly laid out in Article 7, par. 1 of Regulation
(EEC) No 2052/88 (3):

‘Measures financed by the Structural Funds or [...]
receiving assistance from other financial instruments shall
be in conformity with the provisions of the Treaties, with
thereto and with
the instruments adopted pursuant
Community policies, including [...] environmental protec-
tion.’

The implementation of this provision has been given to
the Commission (4). In pursuit of this task, the Com-
mission has to ensure effective monitoring, appraisal
and evaluation of assistance from the Funds, in close
cooperation with Member States (5). As a means to
achieve these tasks, the Commission can ask national
authorities to supply detailed information, national
reports of control, or documents regarding expenditures,
having also the power, if necessary, to carry out on-the-
spot checks. (6)

2.3. Principles of good administration require the Commission
to carry out its duties under Art. 7, par 1, of Regulation
(EEC) No 2052/88 with due diligence. This implies that,
in the event of serious claims about potential irregularities
involving Community funded projects, the Commission
should take reasonable steps to verify the accuracy of the
information it receives.

(1) Council Regulation (EEC) No 2081/93 of 20 July 1993 amending
Regulation (EEC) No 2052/88 on the tasks of the Structural Funds
and their effectiveness and on coordination of their activities
between themselves and with the operations of the European
Investment Bank and the other existing financial instruments (OJ
1993 L 193, p. 5).

(2) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing

a Cohesion Fund (OJ 1994 L 130, p. 1).

(3) A similar provision is to be found in Article 8 of Regulation
No 1164/94 regarding the use of money from the Cohesion Fund.
(4) Article 18 of Regulation (EEC) No 2052/88, and Article 13 of

Regulation (EEC) No 1164/94.

(5) Arts. 25, par. 1 and 26, par. 1 of Council Regulation (EEC)
No 4253/88 of 19 December 1988 laying down provisions for
implementing Regulation (EEC) No 2052/88 as regards coordi-
nation of the activities of the different Structural Funds between
themselves and with the operations of the European Investment
Bank and the other existing financial instruments (OJ 1988 L 374,
p. 1).

(6) Art. 23 Council Regulation (EEC) No 4253/88.

In this case, the Commission concluded that no breach of
EC environmental law had taken place and that funding
could therefore continue. In order to reach that con-
clusion, the Commission took account of the fact that a
formal environmental impact assessment for one of the
projects had been undertaken and that
the national
authorities responsible stated in a written reply that both
projects were compatible. From the information supplied
to the Ombudsman, it appeared that the Commission
never considered the environmental claims made by the
complainant. The Ombudsman therefore concluded that
the Commission had not taken reasonable steps to ensure
that these Community funded projects complied with EC
law and policy.

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark:

Principles of good administration require the Commission
to carry out its duties under Art. 7, par 1, of Regulation
(EEC) No 2052/88 with due diligence. This implies that,
in the event of serious claims about potential irregularities
involving Community funded projects, the Commission
should take reasonable steps to verify the accuracy of the
information it receives.

In this case, the Commission concluded that no breach of
EC environmental law had taken place, and that funding
could therefore continue. In order to reach that con-
clusion, the Commission took account of the fact that a
formal environmental impact assessment for one of the
projects had been undertaken and that the responsible
national authorities stated in a written reply that both
projects were compatible. From the information supplied
to the Ombudsman, it appeared that the Commission
never considered the environmental claims made by the
complainant. The Ombudsman therefore concluded that
the Commission did not take reasonable steps to ensure
that these Community funded projects complied with EC
law and policy.

Given that these aspects of the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

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FAILURE TO GIVE REASONS FOR CLOSING THE FILE ON A
COMPLAINT

Decision on complaint 323/97/PD against the European Com-
mission

However, Article 5 of the Directive provides that Member
States may facilitate the recognition of a diploma by allowing
the citizen to undertake the part of the education that he/she
is missing for obtaining recognition. On that basis,
the
complainant took the required CAP at a Spanish teaching
establishment and in 1994, she was allowed access to the
profession of ‘profesor de educacio´ n secundaria’ for teaching
in French and English.

The complaint

In April 1997 Mrs J. complained to the Ombudsman that the
Commission had failed to ensure that the Spanish authorities
comply with their obligations under Directive 89/48/EEC.

The complainant, a Belgian national, holds a Belgian diploma
‘Licence en traduction’, delivered by the University of Mons. In
the complainant asked the Spanish authorities to
1992,
recognise the diploma so that she could take up professional
activity in Spain as a language teacher. The request was
submitted under Directive 89/48/EEC which lays down the
general system for the recognition of higher-education dip-
lomas awarded on completion of professional education and
training of at least three years’ duration (OJ 1989 L 19/16).

This Directive does not concern purely academic recognition,
but recognition with a view to take up so-called regulated
professions. The professions in Spain which the complainant
considered to be regulated in the meaning of the Directive
were ‘profesor de escuelas oficiales de idiomas’ and ‘profesor
de educacio´ n secundaria’.

As concerns the first profession, the complainant applied
under a competition for entering the Spanish civil service as
‘profesor de escuelas oficiales de idiomas’. Apparently, the
complainant succeeded in the competition but her appoint-
ment was later annulled on the ground that she had not
submitted the required documentation, attesting that she holds
the diploma necessary for the post.

As concerns the second profession, the complainant applied
at the Spanish authority competent for recognition of her
diploma so that she could teach French and English. The
Spanish authority observed that according to Belgian legis-
lation, the diploma could only entitle her to teaching if she
had an ‘Agrégation’ or a ‘Certificat d’Aptitude Pédagogique’
(CAP). Furthermore, it observed that Spanish legislation also
required the possession of a CAP; however, one could dispense
from that requirement in case the person in question had
one year’s teaching experience in an establishment of the
appropriate level. As it was established that the complainant
at that time did not possess a CAP, the Spanish authority
rejected the complainant’s request.

However, the complainant considered that the original actions
of the Spanish authorities were contrary to the above men-
tioned Directive. The complainant wanted therefore to have
access to the professions with retroactive effect. The argumen-
tation which seems to underlie this view, as concerns the
‘profesor de educacio´ n secundaria’, may be summarised as
follows: In notices for competition for entering the Spanish
civil service as ‘profesor de ensen˜ anza secundaria’, there was a
provision according to which one year’s teaching experience
could dispense from the CAP requirement. The complainant
teaching experience in Spanish, acquired
had two years’
in Belgium from 1983-1985. The complainant
therefore
considered that her Belgian experience should be taken into
account.

The complainant approached the Spanish authorities on the
subject. These approaches were apparently in vain.

the Commission acknowledged receipt of

On 2 February 1995 the complainant then lodged a complaint
with the European Commission. By letter of 16 March 1995,
DG XV of
the
complaint. The complaint gave rise to an extensive correspon-
dence between the complainant, the services responsible in the
Commission, the Belgian and Spanish authorities. Further-
more, at a certain moment the complainant started corre-
sponding with DG V. The complainant and the Commission
services were also in contact by telephone. While the Com-
mission processed the complaint, the complainant continued
her dealings before the Spanish authorities with a view to
make them change their position.

By letter of 27 March 1997, the Commission notified to the
complainant that the Commission had decided to close the file
on her complaint. The letter contains two paragraphs; the first
one that the Commission had decided to close the case; the
second one that on the basis of the case law of the Court of
Justice,
the Commission’s
cannot
decision not to initiate infringement proceedings.

individuals

challenge

This was in brief the background against which the complain-
ant lodged the complaint with the European Ombudsman.

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Official Journal of the European Communities

C 260/87

In the complaint it was firstly put forward that the Commission
had taken too long to deal with the original complaint.
Secondly it was alleged that the Commission could not archive
the complaint as the Spanish authorities were continuously
refusing to acknowledge the complainant’s professional experi-
ence on the ground that the experience had not been obtained
in Spain, but in Belgium. In the complaint, the complainant
only referred to the Commission’s examination of her situation
as regards the profession as ‘profesor de educacio´ n secundaria’.

Annexed to the complaint were a number of certificates from
Belgian authorities concerning the complainant’s teaching
experience. From these certificates it appeared that from 1983
to 1985 the complainant had given language courses in
Spanish to adults at a level corresponding to secondary school.
One certificate expressly mentioned that the complainant’s
diploma was covered by Directive 89/48/EEC. Furthermore, a
letter of 23 September 1996 from DG V to the complainant
was annexed. According to this letter, it would be contrary to
Article 48 EC Treaty if the Spanish authorities did not consider
her experience in Belgium just on the ground that it had not
been obtained in Spain.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission firstly stated that it has discretionary
powers as to the initiation of infringement proceedings against
a Member State and that the documentation forwarded to
the Ombudsman by the complainant
in no way gave a
representative vision of the file. The Commission annexed a
list of the correspondence in the file.

As concerns the time taken for examining the complaint,
the Commission acknowledged that the processing of the
complaint, in taking two years, had exceeded the normal time
limits set for dealing with citizens’ complaints. However, the
Commission observed that after the lodging of the complaint,
the complainant had continuously submitted new and some-
times contradictory elements of which the Commission had to
take account in processing the complaint. Furthermore, given
the subject matter,
i.e. recognition of diplomas, the Com-
mission had to be in contact with both Spanish and Belgian
authorities and the replies from this last ones had been quite
delayed.

As concerns the decision to close the file on the complaint,
the Commission stated that the attestation delivered by the
Belgian authorities contradicted other evidence in the file and
the information of general nature that
the Commission
possessed concerning the kind of diploma in question. The
Commission therefore contacted the Belgian authorities which
then confirmed that the ‘Licence’ in itself without any ‘Agréga-
tion’ or CAP could not be considered a diploma within the

meaning of Directive 89/48/EEC. Thereafter, the Commission
recalled that a preliminary condition for recognition under the
Directive is that the diploma in question gives access to the
profession in the State of origin. The Directive applies if the
holder of the diploma can exercise, in the State of origin, the
profession for which recognition is sought in another Member
State.

On the basis of the information from the Belgian authorities,
the Spanish authorities had therefore been right to consider
that the complainant did not fall under the Directive.

As concerns the claim that the Spanish authorities refused to
recognise the complainant’s professional experience on the
ground that it had been obtained in Belgium, the Commission
stated that it had persistently pursued this matter, both before
and after the lodging of the complaint with the Ombudsman.
The Commission had clearly stated its view that such a
condition would be contrary to Article 48 EC Treaty and it
had sought and obtained the Spanish authorities’ acceptance
of that view. The Commission had communicated this to the
complainant.

The complainant’s observations

In her observations the complainant maintained her complaint.
She also forwarded further documentation. From this it
appeared

— that the complainant had lodged a court action before
the Spanish courts concerning the subject matter,

— that the Belgian authorities had informed the Spanish
authorities that the ‘Licence’ only gives the holder the
right to teach when the teaching establishment does not
encounter a holder of a ‘Licence’ with CAP or ‘Agrégation’
on the labour market,

— that the Commission had twice expressed the view that
the civil service ‘profesor de escuelas oficiales de idiomas’
was a regulated profession in the meaning of the Direc-
tive, and

— that the Spanish authorities continuously had held the
opinion that the civil service ‘profesores de escuelas
oficiales de idiomas’ was an unregulated profession, to
which the Directive did not apply.

It did not appear from the documentation whether the
this last discrepancy of views between the
resolution of
Commission and the Spanish authorities would have an impact
on the situation of the complainant.

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Official Journal of the European Communities

11.9.2000

The decision

decision did not permit the Ombudsman to ascertain
whether the Commission had acted within the limits of
its legal authority.

1.

The time for dealing with the complaint

1.1. The complainant considered it an instance of maladminis-
tration in the form of avoidable delay that the Com-
mission had not processed her complaint in less than two
years.

1.2. In taking a stand on this, the Ombudsman shall observe
that the complaint was not simple and that the Com-
mission had evidenced that for a considerable time, the
case was pending upon replies from national authorities,
to whom the Commission had sent reminders. The list of
correspondence submitted by the Commission did not
point to passivity on the Commission’s side. Conse-
quently the Ombudsman found that there had been no
maladministration by the Commission on this aspect of
the complaint.

2.

The Commission’s decision to close the file

2.5. Principles of good administration require the adminis-
tration to give reasons for the decisions it takes towards
the citizen concerned. Such reasoning is essential for the
citizen’s confidence in the administration and for the
transparency of the administration’s decision making. In
this case it appears that the Commission gave no reasons
at all for its decision to close the file on the citizen’s
complaint. This lack of reasoning was mitigated by
the Commission’s previous correspondence with the
complainant. However, the failure to give reasons left the
citizen with fundamental questions unanswered. The
Commission thus failed to comply with the requirement
which follows from principles of good administration.

Given that it has now appeared that the complainant has
lodged a court case against the Spanish authorities on the
subject matter of her complaint to the Commission, the
Ombudsman finds that there are no reasons for inquiring
further into this aspect of the complaint.

2.1. The complainant considered that

the Commission’s
decision to close the file was unjustified since she
continued to experience problems in having the Spanish
authorities recognise her diploma with effect from 1992.

Conclusion

2.2. In taking a stand on this, the Ombudsman firstly observed
the complaint showed the problems related to
that
recognition of diplomas that citizens may experience in
exercising their right to free movement, a cornerstone of
the Community. Faced with such problems, citizens may
turn to the Commission which is the Guardian of the
Treaty and which possesses the necessary expertise. They
are entitled to expect a diligent and efficient examination
by the Commission.

2.3. In this case there was, in particular on the basis of the
copies submitted of the Commission’s letters, no reason
to doubt that the Commission had actively and diligently
undertaken the examination of the complaint in question.

2.4. However, the Commission’s decision to close the file was
laconic and gave no reasons for the decision. Although
this decision had to be seen in the context of the previous
correspondence with the complainant, the decision left
fundamental questions, material
to the complainant,
unanswered such as e.g. whether the Commission had
not found an infringement, or whether it had actually
found an infringement which it had decided not to pursue
any further in the exercise of it discretionary powers. The

On the basis of the ombudsman’s inquiries into this complaint,
it appeared necessary to issue the following critical remark:

Principles of good administration require the adminis-
tration to give reasons for the decisions it takes towards
the citizen concerned. Such reasoning is essential for the
citizen’s confidence in the administration and for the
transparency of the administration’s decision making. In
this case it appeared that the Commission gave no reasons
at all for its decision to close the file on the citizen’s
complaint. This lack of reasoning was mitigated by
the Commission’s previous correspondence with the
complainant. However, the failure to give reasons left the
citizen with fundamental questions unanswered. The
Commission thus failed to comply with the requirement
which follows from principles of good administration.

Given that this aspect of the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

11.9.2000

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Official Journal of the European Communities

C 260/89

ALLEGED FAILURE OF THE EUROPEAN COMMISSION TO PROP-
ERLY MONITOR THE DISBURSEMENT OF COMMUNITY FUNDS.
PUBLIC ACCESS TO COMMISSION DOCUMENTS

1. Monitor that the Region of Campania had properly
distributed ESF payments to the final beneficiaries.

Decision on complaint 480/97/JMA against the European Com-
mission

The complaint

In May 1997, Mr R. lodged a complaint with the European
Ombudsman concerning the alleged failure of the European
Commission to properly monitor the disbursement of funds
through the European Social Fund (ESF) in the Region of
Campania, Italy and to give information to the complainant
regarding this matter.

On behalf of a group of firms from the Italian region of
Campania, the complainant sought to receive Community
assistance for the implementation of several of its projects.
That request was to be financed through the programme
funded by the European Social Fund (ESF) in that region.

In view of the request put forward by the regional authorities,
the Commission had granted ESF financing for a number of
projects to be carried out in Campania. The funds were to be
disbursed over two periods: from 1990 to 1994, and from
1994 to 1996.

Payments to the final recipients of the aid by the Campanian
authorities, however, encountered serious problems. Three
years after the Community had made its first disbursements,
In view of this
these payments had not yet been made.
situation, the complainant lodged a complaint in September
1996 with the European Commission against the authorities
of the region of Campania. In the letter, the complainant
claimed that there had been multiple irregularities in the
management of the Community funds by the responsible
regional authorities.

In November 1996 the complainant wrote again to Directorate
General V of the European Commission, and asked for a copy
of one of the Commission Decisions related to the granting of
financial aid (Decision No 3233 of 12 December 1994).
According to the complainant, the terms of that Decision
could be relevant for the defense of his rights. Since he received
no reply from the Commission, the complainant wrote again
in February 1997, asking for further information on the
outcome of his complaint.

As the complainant considered that the Commission had not
given a satisfactory response to his claims, he wrote to the
Ombudsman in May 1997. In the letter, the complainant
stated that the European Commission had failed to:

2.

3.

4.

Initiate infringement proceedings against the Italian auth-
orities, since the institution had already decided to
suspend ESF payments to the region.

Inform the complainant of any developments concerning
the two letters of formal complaint sent to its services in
September 1996 and February 1997.

Reply to the complainant’s request of a copy of a
Commission Decision concerning the granting of aid to
Campania (Decision No 3233 of 12 December 1994).

The inquiry

The Ombudsman recalled that the EC Treaty empowers him
to inquire into possible instances of maladministration only in
the activities of Community institutions and bodies. The
Statute of the European Ombudsman specifically provides that
no action by any other authority or person may be the subject
of a complaint to the Ombudsman. On the basis of the these
provisions, the Ombudsman’s inquiries were therefore directed
towards examining whether there had been any maladminis-
tration by the European Commission.

The Commission’s opinion

The complaint was forwarded to the European Commission.
Its opinion was in summary the following:

The Commission underlined that the beneficiary of the finan-
cial contribution was the region of Campania, and therefore
its authorities were solely responsible for the disbursement of
the funds to the applicants. It quoted in support of this
position the provisions of Article 21.1 of Regulation (EEC)
No 4253/88 as amended by Regulation (EC) No 2082/93 (1).

(1) Council Regulation (EEC) No 4253/88 as amended by Council
Regulation (EEC) No 2082/93 of 20 July 1993 laying down
provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural
Funds between themselves and with the operations of
the
European Investment Bank and the other existing financial
instruments; OJ L 193 , 31.7.1993, p. 20 Art. 21, par. 1: ‘payment
of financial assistance shall be made […] to the national, regional or
local authority or body designated for the purpose in the application
submitted by the Member State concerned as general rule within two
months from receipt of an acceptable application’.

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Official Journal of the European Communities

11.9.2000

The Commission explained that the competent authorities of
Campania had not submitted the relevant documentation to
justify the completion of their financial operations as regards
this aid in 1993, as required by Art. 21 par. 4 of Regulation
(EEC) No 4253/88 as
by Regulation (CE)
amended
No 2082/93 (1). Accordingly, the Commission had requested
the Campanian authorities to provide the necessary evidence
that payments to the final beneficiaries of the EC assistance
had been carried out.

The Commission gave further details concerning other irregu-
larities identified in the implementation of the programme. In
its view, the existence of potential problems was first unveiled
in March 1995, following a visit in situ carried out by a group
of experts from the Commission. As a result of this inspection,
it appeared that a number of administrative irregularities had
been made by the regional authorities in the implementation
of the programme.

These irregularities regarding the disbursement of EC funds in
the region had also become the subject of legal proceedings
before a national court. In view of the situation the Com-
mission had decided to suspend its financial contributions as a
the Community general
preventative measure to protect
interest, at least until the legal proceedings had been concluded.

As regards the complainant’s request to have access to a copy
of Commission Decision No 3233 of 12 December 1994, the
Commission stated that
since the document had been
addressed to a Member State, and moreover, since it was not
aimed at being published, access to it had no legal basis.

The Commission concluded by underlining the relevance it
had given to this case, as demonstrated by the number of
letters exchanged with the complainant and the the national
authorities, as well as the inspections carried out.

The Commission’s opinion included no reference to two of
the claims made by the complainant, namely the need to
initiate infringement proceedings against the Italian authorities
in connection with this situation, and the alleged failure to
inform the complainant as regards the handling of his two
formal letters of complaint.

The complainant’s observations

In his observations on the Commission’s opinion, the com-
plainant maintained his original claims, and stressed the failure
of the Commission to properly monitor the correct application
of Community law by the national authorities. In his view, the

(1) Article 21 par. 4: ‘payment […] shall be conditional on submission to
the Commission by the designated authority or body referred to in
paragraph 1 of a request for payment within six months of the end of
the year concerned or of completion in practice of the operation concerned’.

Commission had not properly carried out its role as Guardian
of the Treaty. The complainant considered that, since the
Commission had decided to suspend its financial support to the
region, it should have also opened infringement proceedings
against the responsible Italian authorities on the basis of
article 169 (new Art. 226) of the EC Treaty.

As concerns his request to have access to a copy of Decision
No 3233 of 12 December 1994, the complainant contested
the Commission’s explanation, and confirmed his right to have
access to the decision concerned.

The decision

1. Alleged failure of the European Commission to properly

monitor the disbursement of Community funds.

1.1. The complainant claimed that the Commission had not
properly monitored the disbursement of ESF funds in the
region of Campania, as shown by the existence of
numerous irregularities. The complainant mentioned in
particular that the Commission had failed to act in order
to guarantee the timely payment to the final beneficiaries
by the national authorities.

1.2. The Commission had recognised the existence of a
number of problems in the implementation of the ESF
programme by the regional authorities of Campania. It
acknowledged specifically that the regional authorities
were paying the grant to the final beneficiaries with
undue delay, and their failure to submit a financial report
for the operations carried out in 1993. In order to
assess the magnitude of these alleged irregularities, the
Commission services carried out on-site inspections in
March and November 1995, and in May-June 1996.

In the light of the findings of these missions, and taking
into consideration that judicial proceedings had been
launched against the regional authorities, the Commission
decided to suspend any further disbursement of funds,
on the basis of Art. 24 of Regulation (EEC) No 4253/88
as amended by Regulation (EC) No 2082/93.

As regards the late payment to beneficiaries, the Com-
mission underlined that this matter falls under the remit
of the national authorities. However, by letter of 8 June
1995 its services wrote to the regional authorities of
Campania requesting further details on the causes for
their failure to reimburse final beneficiaries.

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C 260/91

1.3. One of the basic principles of the Community policy for
economic and social cohesion is the so-called ‘partner-
ship’ among the different actors involved in the process.
As laid out in the rules governing the activities of EC
Structural Funds, Community operations are to be carried
out
through close consultations between the Com-
mission, the Member State concerned, and its competent
authorities and bodies, at national, regional or local level.
This partnership must be conducted in full compliance
with the respective institutional, legal and financial pow-
ers of each of the partners (1).

1.4. As regards the disbursement of ESF funds, the relevant
regulations set out a clear division of responsibilities
among the different actors, in application of the partner-
ship principle. The Commission is responsible for the
payments to the national, regional or local authorities
referred to in the application for aid submitted by the
Member State (2). However, the responsibility for the
payment to the final beneficiaries rests with the Member
States which ‘shall ensure that the beneficiaries receive
the advances and payments as soon as possible’ (3).

Faced with irregularities in the conditions under which a
programme is being implemented, the Commission has to
conduct a suitable investigation, and once the responsible
authorities have been heard, it may reduce or suspend its
assistance in relation to that programme or operation (4).

1.5. In the light of these rules, the Ombudsman considered
that the Commission did not fail to act towards the final
recipients of its financial assistance, since this was a
power lying with the Member State. In due respect of the
partnership principle, the institution does not have the
authority to take the place or substitute the responsible
national authorities by channelling its contributions
directly to the final beneficiaries.

1.6. As regards the actions taken by the Commission in
response to the alleged irregularities in the handling of
ESF funds in the region, they appeared to be in line with
the relevant legal provisions governing the institution’s
role to monitor and evaluate assistance from the Structur-
al Funds. From the information submitted by the com-

(1) Council Regulation (EEC) No 2081/93 amending Regulation (EEC)
No 2052/88 on the tasks of the Structural Funds and their
effectiveness and coordination of their activities between them-
selves and with the operations of the European Investment Bank
and the other existing financial instruments, OJ L 193, 31.7.1993,
p. 5; Art. 4.

(2) See supra, Council Regulation (EEC) No 4253/88 as amended by

Council Regulation (EEC) No 2082/93, Art. 21, par. 1.

(3) See supra, Council Regulation (EEC) No 4253/88 as amended by

Council Regulation (EEC) No 2082/93, Art. 21, par. 5.

(4) Art. 24, pars. 1-2.

plainant, there was no indication that the Commission
had exceeded its powers, or failed to act in accordance
with them. The Ombudsman considered therefore that
there was no maladministration as regards this aspect of
the case.

2. Use of the infringement procedure provided for in

Art. 226 of the EC Treaty

2.1. According to its powers under Art. 24 of Regulation
(EEC) No 4253/88, as amended by Regulation (EC)
No 2082/93 (5), the Commission had decided to suspend
its ESF assistance to the region of Campania. The
complainant considered that the institution should also
have started in parallel infringement proceedings against
the Italian authorities.

assistance

2.2. As the Community courts had stated in similar cases, the
procedure for the suspension or reduction of Community
financial
(EEC)
(Art. 24
No 4253/88) is independent and distinct from the pro-
cedure the aim of which is to obtain a declaration that
the conduct of a Member State is in breach of Community
law (Art. 226 of the EC Treaty). Those two procedures
serve different aims and are subject to different rules (6).

Regulation

2.3. The Ombudsman therefore concluded that this aspect of
the case did not constitute an instance of maladminis-
tration.

3.

Information forwarded to the complainant concerning
his formal letters of complaint

3.1. On 3 September 1996 and 12 February 1997, the com-
plainant addressed two formal letters of complaint to the
European Commission. Both letters had followed the
standard model published in the Community Official
Journal
to the Commission of
the European Communities for Failure to comply with
Community law’) (7). The complainant claimed that the
responsible Commission services had not properly infor-
med him on the follow-up given to his complaints.

in 1989 (‘Complaint

(5) Council Regulation (EEC) No 4253/88 of 19 December 1988,
laying down provisions for implementing Regulation (EEC)
No 2052/88 as regards coordination of the activities of the
different Structural Funds between themselves and with the
operations of the European Investment Bank and the other
existing financial instruments; OJ L 374, 31.12.1988, p. 1.

(6) Order of

the Court

(Fourth Chamber) of 11.7.1996, Case
C-325/94 P,An Taisce- The National Trust for Ireland and WWF v.
Commission [1996] ECR-I-3727, par. 25.

(7) OJ C 26, 1.2.1989, p. 7.

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Official Journal of the European Communities

11.9.2000

3.2. The Commission did not make any specific reference in
its opinion to this aspect of
the case, but merely
indicated that there had been an extensive exchange of
correspondence with the complainant.

3.3. In the standard complaint form published in the Official
Journal the Commission expressly indicates that ‘any
individual may lodge a complaint with the Commission
concerning a practice or a measure which,
in his opinion,
infringes a Community provision’. It further refers to a
number of administrative safeguards which the institution
undertook to respect for the complainant’s benefit. These
safeguards include:

— ‘an acknowledgement of receipt will be sent

to the

complainant as soon as the complaint is registered.

— the complainant will be informed of the action taken in
response to his complaint, including representations made
to the national authorities, Community bodies or under-
takings concerned.

— the complainant will be informed of any infringement
proceedings that
the Commission intends to institute
against a Member State as a result of the complaint
[…].’

3.4. On the basis of the information provided by the com-
plainant, which the Commission had not rebutted, none
of the previous administrative safeguards included in the
standard complaint form published by the Commission
were respected in the handling of the two formal letters
of complaint sent by the complainant. The Ombudsman
concluded, therefore, that such failure of the Commission
constituted an instance of maladministration.

therefore they were not aimed at being published. More-
over, access to these documents had no legal basis.

4.3. In this context, the Ombudsman should recall that on
8 February 1994 the Commission adopted a Decision on
public access to Commission documents (1). The aim of
this Decision is to give effect to the principle of the largest
possible access for citizens to information, with a view to
strengthening the democratic nature of the institutions
and the trust of the public in the administration. As the
Community courts have held, Decision 94/90 is a
measure conferring on citizens legal rights of access to
documents held by the Commission (2), and is intended
to apply generally to requests for access to documents (3).

4.4. Access to a Commission document can only be refused
by the institution on the basis of the exceptions listed in
the Code of Conduct annexed to the Decision. These
exceptions refer to the protection of public interest,
such as public security, international relations, monetary
stability, court proceedings,
inspections and investi-
the individual and privacy, commercial and
gations,
industrial secrecy, the Community’s financial interests,
and confidentiality.

4.5. None of these exceptions directly concerns the identity of
the possible addressee of a document, or its potential
publication. The Commission had therefore not relied on
any of the specific exemptions provided for in Decision
94/90 to justify its refusal to provide the document
requested by the complainant. In the absence of any
such justification, the Ombudsman concluded that the
Commission did not properly consider the request in
the light of Commission Decision 94/90. Such failure
constituted an instance of maladministration, and the
Ombudsman would address a critical remark to the
Commission as regards this aspect of the case.

4.

Public Access to the Decision granting ESF funds to the
region

Conclusion

4.1. The complainant claimed in his complaint

that

the
Commission should not have rejected his request of
13 November 1996 to be given access to a copy of the
Commission Decision regarding the financial contri-
bution to the region of Campania through the ESF
(Decision No 3233 of 12 December 1994). Such a refusal,
in the complainant’s view, was unjustified. Furthermore,
by not having access to a document which could
have been relevant for the legal proceedings currently
underway before the national courts, the complainant
could not properly defend his rights.

4.2. The Commission argued in its opinion that this type of
Decisions were addressed to the Member States, and

The Ombudsman’s inquiries into this case revealed a case of
maladministration on the part of the European Commission.
It appeared necessary therefore to make the following critical
remarks:

(1) OJ L 46, 18.2.1994, p. 58.
(2) Case T-105/95, WWF UK v. Commission [1997] ECR-II-0313,

par. 55.

(3) Case T-124/96,

par. 48.

Interporc v. Commission [1998] ECR-II-0231,

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Official Journal of the European Communities

C 260/93

1.

In the standard complaint form published in the Official
Journal the Commission expressly indicates that ‘any
individual may lodge a complaint with the Commission
concerning a practice or a measure which,
in his opinion,
infringes a Community provision’. It further refers to a
number of administrative safeguards which the institution
undertook to respect for the complainant’s benefit. These
safeguards include:

‘— an acknowledgement of

receipt will be sent

to the

complainant as soon as the complaint is registered.

Commission Decision 94/90 expressly provides for an
applicant whose confirmatory application for access to
documents is rejected to be informed of the possibility of
complaint to the Ombudsman. The Ombudsman’s critical
remark implied that the Commission would reconsider
the rejection given to the complainant’s application of
13 November 1996, and give access to the documents
requested, unless one of the exceptions contained in
Decision 94/90 applies. Since it was for the Commission
to carry out this reconsideration and communicate the
result to the complainant, the Ombudsman closed the
case.

— the complainant will be informed of the action taken in
response to his complaint, including representations made
to the national authorities, Community bodies or under-
takings concerned.

REFUSAL OF ACCESS TO DOCUMENTS RELATED TO COURT
PROCEEDINGS

Decision on complaint 506/97/JMA against the European Com-
mission

— the complainant will be informed of any infringement
proceedings that
the Commission intends to institute
against a Member State as a result of the complaint
[…].’

On the basis of the information provided by the com-
plainant, which the Commission had not rebutted, none
of the previous administrative safeguards included in the
standard complaint form published by the Commission
were respected by the Commission in its handling of the
two formal letters of complaint sent by the complainant.

Given that these aspects of the case concerned procedures
relating to specific events in the past, it was not appropri-
ate to pursue a friendly settlement of the matter.

2. Access to a Commission document can only be refused
by the institution on the basis of the exceptions listed in
the Code of Conduct annexed to the Decision. These
exceptions refer to the protection of public interest,
such as public security, international relations, monetary
stability, court proceedings,
inspections and investi-
gations,
the individual and privacy, commercial and
industrial secrecy, the Community’s financial interests,
and confidentiality.

None of these exceptions directly concerns the identity of
the possible addressee of a document, or its potential
publication. The Commission had therefore not relied on
any of the specific exemptions provided for in Decision
94/90 to justify its refusal to provide the document
requested by the complainant. In the absence of any
such justification, the Ombudsman concluded that the
Commission did not properly consider the request in the
light of Commission Decision 94/90.

The complaint

In June 1997, attorneys acting on behalf of a group of Italian
wine-growers lodged a complaint with the Ombudsman
concerning the allegedly unjustified refusal of the Commission
to give them access to certain documents.

By letters of 13 February 1997 and 24 March 1997, sent to
the Directorate General VI and to the Secretary General of the
Commission respectively, the complainants requested access
to several Commission documents. The request was for the
working documents used by the Commission to estimate the
compulsory distillation by producers of table wine in the
1993/1994 wine year.

The complainants requested these documents in order to prove
that the calculation of the amount to be distilled by each
Member State had been made in a discriminatory manner, and
that, as a result, Italy had been significantly penalised. They
alleged that Italian wine-growers were required to distil a
greater quantity of wine than those in other Member States
whose production conditions were similar and that
the
Commission’s calculation was incomprehensible. In particular,
the complainants believed that the Commission had applied a
different reference percentage to the various Member States
when determining the respective amounts to be distilled and
that the quantity of 12 150 000 hl for Italy had been calculated
on the basis of inaccurate national data.

The complaint was made on the basis of Commission Decision
94/90 (1) on public access to Commission documents.

(1) 94/90/ECSC, EC, Euratom: Commission Decision of 8 February
1994 on public access to Commission documents, OJ L 46,
18.2.1994, p. 58-61.

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The Commission rejected the initial application. In a reply
dated 12 March 1997, the Commission’s services informed
the complainants that, as the decision of the Commission to
open a compulsory distillation for the 1993/1994 wine year
was the subject of judicial proceedings before the Court of
Justice, the Commission could refuse to release the relevant
documents based on the exception provided for in Decision
94/90, regarding the protection of the public interest.

In relation to the confirmatory application by the complain-
ants, the Secretary General of the Commission firstly informed
them that in view of the large number of documents requested,
its decision would probably not be taken within one month.
On May 1997, the Secretary General sent a further letter
to the complainants, which confirmed the refusal of their
confirmatory application. The letter also indicated that the
complainants should have addressed their request directly to
the Court of Justice, since this is the only authority empowered
to disclose procedural documents as established by Article 21
of its statute and Article 45 (2) of the Rules of Procedure.

have imperilled the defence of public interest in judicial
proceedings. Therefore the Commission considered that it was
empowered to deny access, on the basis of the exception
provided for in the decision on public access. This allows
the refusal of access to documents where disclosure could
undermine the protection of the public interest.

Furthermore, the Commission stated that the complainants
should have addressed their request for the disclosure of the
Justice. Should this
documents directly to the Court of
institution order the release of the documents, the Commission
could not have denied access to them except in the case of
particularly serious ‘higher reasons’.

It referred to the fact that a case bearing on very similar
matters was pending in the Court of First Instance (Case T-
124/96 Interporc Im- und Export Gmbh v. Commission) (2).

In view of the refusal of the Commission, the complainants
asked the Ombudsman to start an inquiry into the matter and
to investigate whether an instance of maladministration had
taken place.

The complainants’ observations

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission. In summary
the Commission’s opinion made the following points:

The complainants requested access to Commission documents
concerning the calculations for compulsory distillation of table
wine in respect of the 1993/94 wine year. These materials had
served as the factual support and reference for the Commission
to enact Regulation (EEC) No 343/94 of 15 February 1994
opening compulsory distillation by producers of table wine in
respect of the 1993/94 wine year (1).

The Commission pointed out that the legality of this Regu-
lation and its conformity with Community law was the subject
of an action pending before the Court of
Justice of the
European Communities for a preliminary ruling (C-375/96).
Given that situation, the institution could not agree to the
release of the requested documents, because such action would

(1) Commission Regulation (EC) No 343/94 of 15 February 1994
opening compulsory distillation as provided for in Article 39 of
Council Regulation (EEC) No 822/87 and derogating for the
1993/94 wine year from certain detailed rules for the application
thereof. OJ L 44, 17.2.1994, p. 9.

In their observations, the complainants contested the reasons
given by the Commission in its refusal to disclose the requested
documents. They disagreed with the consideration of the
documents as a part of court proceedings and the ensuing
application of the exception relating to the protection of the
public interest. The complainants argued that even if the
documents related to ongoing proceedings before the Court of
Justice, they could not be taken as part of court proceedings
because they had not been prepared for this particular Court
case, but existed independently of the proceedings. They ought
therefore to be considered as mere administrative documents.

Moreover, the complainants argued that, on the basis of
existing Community case-law, when the Commission denies
access to documents using an exception of Decision 94/90, it
has to specify the reasons for each of the requested documents,
and thus motivate the refusal (3).

The complainants alleged that in this case, by contrast, the
Commission had simply denied access on the basis of the
protection of public interest, without giving accurate reasons
and without striking a balance between its right of defence and
the rights of citizens to have access to documents.

(2) Case T-124/96. Judgment of 6 February 1998 Interporc Im- und

Export GmbH v Commission, [1998] ECR II-0231.

(3) Case T-105/95, WWF UK (World Wide Fund for Nature) v.
Commission of the European Communities [1997] ECR II-0313.

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The decision

1. Refusal of access to documents connected to court

proceedings

1.1. Access

to the Commission’s working documents
assessing the compulsory distillation of wine for the year
1993/94 was refused on the basis of the need to protect
public interest, as provided for in the first indent of
exceptions of Commission Decision 94/90 on public
access to Commission documents.

1.2. In reply to the confirmatory application, the Commission
pointed out that the requested documents were instru-
mental for the enactment of Commission Regulation
(EC) No 343/94 opening compulsory distillation for the
1993/94 wine year, whose legality was being contested
before the Court of Justice (1). It argued that the complain-
ants should have addressed their request for documents
directly to the Court of Justice.

The Commission concluded therefore that:

1.4. The Ombudsman noted that the documents requested by
the complainants had been prepared to evaluate the
legislative options of the Commission, and were not
created to serve a particular purpose in the context of
a court proceeding. These documents were therefore
independent of the court case regarding the legality of
Commission Regulation (EEC) No 343/94, for which,
however, they laid the ground.

1.5. Therefore, in line with the case law of the Community
courts, the Ombudsman considered that the Commission
had wrongly refused access to Commission documents
on the grounds that the documents in question were
connected to court proceedings. Such action constituted
an instance of maladministration, and the Ombudsman
considered necessary to make a critical remark to the
Commission as regards this aspect of the case.

2. Reasons for the refusal of each specific document

2.1. In their letter to the Ombudsman, the complainants also
argued that the Commission’s refusal of their request did
not comply with established Community case-law since
it did not refer to each specific document.

‘The protection of public interest in the case of court
proceedings gives it the power, in the framework of the
Code of Conduct, to refuse access to documents which
relate to a pending legal case’.

2.2. Since the Ombudsman had concluded that the Com-
mission should reconsider its decision in this case, there
was no need to assess the merits of this additional claim.

1.3. The exception to the general principle of access to
Commission documents based on the protection of
public interest when the documents at issue are connected
to court proceedings has been included in Decision
94/90. The Court of First Instance of the European
Communities has already been called to define the scope
of this exception to the general principle (2). The Court
has stated that

‘[...] a distinction must be drawn between documents
drafted by the Commission for the purpose of a particular
court case [...], and other documents which exist indepen-
dently of such proceedings. Application of the exception
based on the protection of
can
be justified only in respect of
the first category of
documents’ (3).

the public

interest

Conclusion

The Ombudsman’s inquiries into this case revealed a case of
maladministration on the part of the European Commission.
It appeared necessary therefore to make the following critical
remark:

The Ombudsman noted that the documents requested by
the complainants had been prepared to evaluate the
legislative options of the Commission, and were not
created to serve a particular purpose in the context of
a court proceeding. These documents were therefore
independent of the court case regarding the legality of
Commission Regulation (EEC) No 343/94, for which,
however, they laid the ground.

(1) The case has already been decided by judgment of the Court (Fifth
Chamber) of 29 October 1998; Case C-375/96, Galileo Zaninotto
v Ispettorato Centrale Repressione Frodi (reference for a preliminary
ruling: Pretura circondariale di Treviso); not yet reported.

(2) Case T-83/96, Gerard van der Wal v Commission of the European

Communities [1998] ECR II-545.

(3) Supra case T-83/96, par. 50.

Therefore, in line with the case law of the Community
courts, the Ombudsman considered that the Commission
had wrongly refused access to Commission documents
on the grounds that the documents in question were
connected to court proceedings. Such action constituted
an instance of maladministration.

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Commission Decision 94/90 expressly provides for an appli-
cant whose confirmatory application for access to documents
is rejected to be informed of the possibility of complaint to the
Ombudsman. The Ombudsman’s critical remark implied that
the Commission should reconsider the complainants’ con-
firmatory application dated 24 March 1997 and give access to
the documents requested, unless one of the exceptions con-
tained in Decision 94/90 applied. Since it was for the
Commission to carry out this reconsideration and communi-
cate the result to the complainants, the Ombudsman closed
the case.

COMMISSION PROCEDURE FOR INVESTIGATING ALLEGED
INFRINGEMENT (ARTICLE 226 EC)

Decision on complaint 749/97/IJH against the European Com-
mission

The complaint

In August and September 1997, Mr M. complained to
the Ombudsman against the Commission, DG XI. He had
previously complained to the Commission about the planned
construction, with co-financing from the Community, of a
dual carriageway road in the area of the Ballyseedy Wood,
Tralee, County Kerry in Ireland, an area classified as a priority
habitat under the Habitat Directive (Directive 92/43/EEC on
the conservation of natural habitats and of wild flora and
fauna). Dissatisfied with how the Commission’s investigation
of the matter was proceeding, he complained to the Ombuds-
man, putting forward, in summary, the following points:

(i)

The Commission had failed to ensure an adequate
scientific appraisal of the planned dual carriageway. It
had not insisted that the Irish authorities produce an
Impact Assessment under Directive
Environmental
85/337/EEC. Given the
established environmental
importance of the Ballyseedy Wood, it was not in line
with the Directive to base a decision only on informal
information submitted by the Irish authorities. Further-
more, the Commission had failed to perform a visit to
the site or to send its own experts in order to obtain
independent information.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission noted that the Ballyseedy Wood had
been identified as a residual alluvial forest which is a priority
habitat type for the purpose of Directive 92/43/EEC. The Irish
authorities indicated that Ballyseedy Wood is one of 14 sites
in Ireland which will be proposed as special areas of conser-
vation for the habitat type under the Directive.

As regards the procedures, the Commission claimed that they
were carried out correctly and that the objectors had been
treated fairly. The complaint was registered on 22 January
1996 as number P95/5006. An initial evaluation and represen-
tations to the Member State took place on 14 March 1996 and
3 July 1996. A letter to the complainant explaining the
representations made to the Member State was sent on
20 August 1996. The Irish authorities responded on 21 May
1997 and 13 June 1997 and the Commission informed the
complainant on 1 July 1997 about this response, inviting him
to comment within six weeks. The Commission was currently
assessing the received information. Furthermore, no Com-
munity funds had yet been given to the project since the
Commission is awaiting the outcome of the investigations.

The Commission also commented on the duration of its
investigation, which exceeded the period of one year generally
foreseen for the conclusion of an investigation into a com-
plaint. It explained this by the fact that the complaint had
raised several complex technical and scientific issues, thus
requiring more time for a proper evaluation. Since the project
investigation, no
had not proceeded during the time of
detriment had arisen. The Commission further pointed out
that the fact that the Irish authorities had failed to complete a
formal
Irish list of sites intended for conservation under
Directive 92/43/EEC, was subject to a separate infringement
procedure addressing that issue.

In particular,

(ii) The procedure used by the Commission was unfair in
that the Irish authorities were put in a much better
position than the objectors, who have very limited
resources.
the Commission had given
the Irish authorities over a year to respond to the
Commission’s investigation, but gave the objectors only
six weeks to comment on the standpoint of the Irish
authorities. Furthermore, the Commission did not itself
supply him with the reports submitted by the Irish
authorities but instead referred him to Kerry County
Council for access to the reports.

As regards the complainant’s allegation that six weeks for
commenting on the Irish authorities’ response was too short,
the Commission stated that the position of the complainant is
different to that of the Member State. The Member State is
obliged to supply the Commission with information; an
obligation not imposed on the complainant. There are also
consequences for the Member State in not meeting the
Commission’s requested deadline for response. In contrast,
faced with similar consequences.
the complainant
Furthermore, the Commission stated that six weeks is reason-
able compared with analogous national processes.

is not

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The Commission stated that
its own rules on access to
documents did not allow it to provide the complainant with
the reports since it was not their author. On the other hand,
Kerry County Council was obliged to provide access to the
reports by Directive 90/313/EEC on freedom of access to
information on the environment.

The complainant also underlined that his complaint was not
against the staff of the Commission but against the established
procedures. These were unfair to the complainants in that they
left unreasonable and unfair advantages to the Member State
with its massive resources.

The compliance of the project with Directive 85/337/EEC was
subject to investigation. The complainant had been invited to
comment on the response of the Irish authorities and his
comments would be taken into account.

Further inquiries

On the question of whether the Commission should send its
own experts to visit the site, the Commission stated that it did
not rule out the possibility of a site visit. Such visits are
sometimes made in connection with important habitats under
threat. However, up to the date of the complaint to the
Ombudsman, a site visit was not required, as the obtaining of
information and evaluation thereof could be dealt with
satisfactorily by way of correspondence.

After careful consideration of the Commission’s opinion and
the complainant’s observations,
the Ombudsman deemed
the
further inquiries to be necessary. For this purpose,
Ombudsman requested information from the Commission;
firstly, concerning its opinion that its rules on access to
documents ‘did not allow’
it to provide the complainant
with the requested reports and secondly, concerning the
Commission’s criteria as to whether, and at what stage, it finds
it appropriate to undertake a visit to the site.

Finally, the Commission stated that the complainant had been
kept fully informed of all critical stages in the investigation
and that a meeting had taken place between the complainant
and the Commission services in the autumn of 1997. The
Commission concluded by stating that it would keep the
complainant informed of further developments.

The complainant’s observations

In his observations, the complainant maintained his complaint
and made the following points:

When the objectors were told they had only six weeks to
comment on various extensive reports by the Irish authorities,
they gave up all hope of raising the money and finding experts
to counter the arguments presented. The time allowed was
totally unreasonable. This was particularly unfortunate since
the reports were full of flaws. If the Commission wants an
accurate procedure, it should make sure that both the Irish
authorities and the complainants possess the necessary experts,
and if not, supply them itself. The need for Commission
experts was all the greater because, every time the complainants
managed to obtain an expert opinion, the reports of the Irish
State’s experts were found to contain serious errors.

In its response, the Commission stated that there had been no
formal request from the complainant as regards the reports
produced by Kerry County Council. However, according to the
Commission’s rules on access to documents,
it had the
right to refer the complainant to the author. Regarding the
possibilities of a visit to the site, the Commission informed the
Ombudsman that there were no specific criteria for deciding
whether, and at what stage, a site visit could be appropriate.
Rather, site visits generally occur when this is needed for the
understanding of the facts. In practice, such cases tend to
present unique sets of circumstances.

The Commission went on to explain that it would have been
premature to perform a visit to the site before the stage when
the complaint was lodged to the Ombudsman. However, at a
later stage when it had received both the Member State’s and
the complainants’ submissions,
the Commission found it
necessary to carry out a study on certain aspects of the case.
This study did not include a site visit by Commission staff, but
a visit and interviews were conducted by outside experts
engaged on the Commission’s behalf. The study concluded
that the proposed Tralee dual carriageway was in breach of EU
policy and law in respect of
Impact
Assessment Directive and the Habitat Directive and that the
decision to co-finance the project should be reconsidered.

the Environmental

As regards the fact that the complainant had to obtain the
reports from Kerry County Council, the complainant pointed
out that the Commission firstly said that it would guard the
anonymity of the complainants and then referred them to
their adversaries for obtaining the relevant reports.

The Commission sent a copy of the above-mentioned study to
It also informed the Ombudsman that
the Ombudsman.
a copy of
the study had been provided directly to the
complainant.

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The complainant expressed satisfaction with the outcome of
the study, however he pointed out that he had not received
any further information or notice of a final decision by the
Commission.

1.4. As regards this aspect of the case, therefore, it appears
that the Commission has taken steps to settle the matter
and has thereby satisfied the complainant.

On the general issue of the procedure used, the complainant
expressed concern that there had been no mention of an
independent committee of experts until after the complaint to
the Ombudsman.

The complainant also stated that requesting the reports from
Kerry County Council had indeed revealed his identity as a
complainant. After having requested and obtained the reports,
he received a letter from Kerry County Council saying that he
should send to it copies of the documents and letters which he
had sent to the Commission.

2.

The fairness of the procedure

2.1. The complainant alleged that the procedure used by the
Commission was unfair, because the Irish authorities
were put in a much better position than the objectors. In
particular, the Commission gave the Irish authorities one
year to respond to its investigation, whereas the objectors
had only six weeks to comment on the Irish response.
Furthermore, the complainant objected to the fact that
the Commission did not supply him with the reports
submitted by the Irish authorities but referred him to
Kerry County Council, thereby jeopardising his anon-
ymity as a complainant.

The decision

1.

The alleged failure to ensure an adequate scientific
appraisal of the planned dual carriageway

1.1. The complainant alleged that the Commission had failed
to ensure an adequate scientific appraisal of the planned
Tralee dual carriageway because it had failed to insist that
the Irish authorities produce an Environmental Impact
Assessment under Directive 85/337/EEC (1) and had failed
to perform a visit to the site, or send its own experts to
obtain independent information.

1.2. Principles of good administration require the Commission
to base decisions involving scientific assessments on
accurate information and to ensure, when appropriate,
that there is opportunity for critical appraisal of relevant
data and that different opinions are heard. If submissions
from the Member State and the complainant are inad-
equate for this purpose, the Commission should take
appropriate steps to ensure that
it obtains accurate
information.

the Ombudsman’s inquiry showed that

2.2. As regards the general procedure adopted by the Com-
the
mission,
complaint was registered by the Commission and that
the complainant was informed about the representations
made to the Irish authorities and about
the latter’s
response, on which he was invited to comment. The
Commission services also met with the complainant.
After having evaluated the response from the Member
State and the comments from the objectors, the Com-
mission engaged outside experts to perform a study on
to the
certain aspects of the case,
site. The Commission informed the complainant of the
outcome of
this study. Although the time for the
investigation exceeded the normal period of one year, the
Commission explained this by reference to the complex
technical and scientific issues raised. It appears, therefore,
that in general the Commission acted in accordance with
principles of good administration by respecting the
procedures to which it committed itself
to in the
Ombudsman’s own initiative inquiry 303/97/PD. (2) The
Commission further stated that it would keep the com-
plainant informed of the development of the investi-
gation, which is also in line with the commitments it
gave in the Ombudsman’s own initiative inquiry.

including a visit

1.3. During the course of the Ombudsman’s inquiry, the
Commission employed outside experts to carry out an
environmental study of the planned dual carriageway as
part of
the project’s compliance
with Directive 85/337/EEC. The complainant expressed
satisfaction with the conclusions of the study.

its investigation of

2.3. As regards the claim that the six-week time limit for reply
was too short, the Commission pointed out that, unlike
the Member State, complainants are not obliged to reply.
Furthermore, the Commission claimed that six weeks is
comparable to the period allowed in analogous national
procedures. As regards the failure to supply the complain-
ant with the reports on which it invited him to comment,

(1) Council Directive 85/337/EEC on the assessment of the effects of
certain public and private projects on the environment, OJ 1985
L 175/40.

(2) Decision in the own initiative inquiry 303/97/PD. See Annual

Report for 1997, heading 3.7, OJ 1998 C 380/1.

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C 260/99

the Commission stated that its rules on access to docu-
ments did not allow it to supply the reports since it was
not the author. However, when this was queried by the
Ombudsman the Commission stated that its rules on
access to documents allowed it to refer the complainant
to the author of the reports.

procedures. However, the Commission did not supply
the complainant with the material on which to comment.
In these circumstances, the Commission should have
indicated its willingness to extend the time limit, on
in order to take into account the extra time
request,
needed for the complainant
to obtain the relevant
material.

2.4. It is a principle of good administration that time-limits
should be reasonable. It was not unreasonable for the
Commission to base its time-limit of six weeks for
comments on a comparison with analogous national
procedures. However, the Commission did not supply
the complainant with the material on which to comment.
In these circumstances, the Commission should have
indicated its willingness to extend the time limit, on
in order to take into account the extra time
request,
needed for the complainant
to obtain the relevant
material.

2.5. It is a principle of good administration that an adminis-
trative body should do its best to keep its promises to
citizens. The standard form on which the Commission
has invited individuals to submit complaints gives an
undertaking to observe the customary rules of confiden-
tiality when investigating the complaint (1). Although
there is no obligation on the complainant to comment
on the Member State’s response, the possibility of such
participation is a normal part of the investigation pro-
cedure. The Commission required the complainant to
obtain the reports on which to comment
from an
authority of the Member State which was under investi-
gation. The complainant therefore had to sacrifice his
anonymity in order to be able to participate normally in
the investigation of his complaint. By this requirement
the Commission failed to keep the promise made in its
standard form.

Conclusion

On the basis of the Ombudsman’s inquiries into the first
aspect of the complaint, it appeared from the Commission’s
comments and the complainant’s observations that the Com-
mission had taken steps to settle the matter and thereby
satisfied the complainant.

It is a principle of good administration that an adminis-
trative body should do its best to keep its promises to
citizens. The standard form on which the Commission
has invited individuals to submit complaints gives an
undertaking to observe the customary rules of confiden-
tiality when investigating the complaint. Although there
is no obligation on the complainant to comment on
the Member State’s response, the possibility of such
participation is a normal part of the investigation pro-
cedure. The Commission required the complainant to
obtain the reports on which to comment
from an
authority of the Member State which was under investi-
gation. The complainant therefore had to sacrifice his
anonymity in order to be able to participate normally in
the investigation of his complaint. By this requirement
the Commission failed to keep the promise made in its
standard form.

Given that this aspect of the case concerned procedures
relating to specific events in the past it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

Further remark

The Ombudsman noted that the Commission’s procedure for
investigating a complaint about an infringement of Com-
munity law by a Member State is not yet organised as a normal
administrative procedure, in which the complainant is treated
as a party. In a normal administrative procedure, the Com-
mission should itself supply the complainant with all the
documents on which it invites comments.

On the basis of the Ombudsman’s inquiries into the second
aspect of the complaint, it was necessary to make the following
critical remarks:

UNANSWERED LETTERS

Decision on complaint 102/98/(XD)ADB against the European
Commission

It is a principle of good administration that time-limits
should be reasonable. It was not unreasonable for the
Commission to base its time-limit of six weeks for
comments on a comparison with analogous national

The complaint

(1) 1989 OJ C 26/6.

In January 1998, Mr R. complained to the Ombudsman
concerning the Commission’s failure to answer his letters.

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11.9.2000

In November 1997, Mr R sent a complaint to the Commission
about the French CSG (Contribution Sociale Généralisée) and
CRDS (Contribution pour le Recouvrement de la Dette Sociale).
As he received no reply, he contacted the Commission
Representation in Paris. Furthermore, he asked the Com-
mission Representation in Marseilles how he could act against
this failure to reply. Finally the complainant turned to the
in
nonprofit making organisation ‘La Maison de l’Europe’
Perpignan.

his complaint had been finally registered or if he needed to
lodge a new complaint, and whether he would be informed
about the progress of the procedure.

On 30 August 1998, the complainant informed the Ombuds-
man that he had not yet received any reply to his letters of
2 March and 8 June 1998, and expressed serious doubts about
the regrets mentioned by the Commission in its opinion to the
Ombudsman.

Following these contacts, the complainant never received an
answer, except two brochures (in particular one about the
European Ombudsman) from the ‘Centre d’Informations sur
l’Europe — Sources d’Europe’ in Paris.

Further inquiries

The inquiry

The Commission’s opinion

Following the additional difficulties faced by the complainant,
the Ombudsman got
in touch with the Commission on
10 September 1998. On 30 September 1998, the Commission
acknowledged the receipt and registered the complainant’s
original complaint of 1 November 1997. On 5 October 1998
the complainant was informed of the progress of the infringe-
ment procedure against France.

The complaint was forwarded to the Commission. The opinion
of the Commission on the complaint was, in summary, the
following:

The decision

The issue raised by the complainant in his letter to the
Commission, which was subject to an infringement procedure
brought before the Court of Justice, was simultaneously dealt
with by Directorate General
the
Commission. Given the fact that the cases were still pending
before the Court of Justice, the substantive answer to the
complainant’s request was postponed. However, the Com-
mission regretted that no holding reply was addressed to the
complainant in the meantime.

(DG) XV and DG V of

As regards the information requested from the Commission
representation in Marseilles, the Commission stated that the
complainant did not live within this office’s geographic zone
of competence. As a consequence, the request was transmitted
to Paris, and the complainant was sent the relevant information
through ‘Sources d’Europe’.

In its reply to the Ombudsman’s request of 12 February 1998,
the Commission enclosed a copy of a letter which was sent to
the complainant on 20 February 1998, which informed him
of the infringement procedure against France.

1.

Failure to reply to the complaint

1.1. The complainant put forward that he received no reply
to a complaint he lodged with the Commission. The
Commission explained that the delays were caused by the
fact that the subject matter raised by the complainant was
at that time being investigated by the Court of Justice.
Nevertheless, the Commission apologised for the absence
of a holding reply.

1.2. According to the information contained in the opinion
of the Commission as regards its own procedures for
dealing with complaints (sent to the Ombudsman in the
framework of his own initiative inquiry ref. 303/97/PD):

‘All complaints which reach the Commission are registered
in the Secretariat-General. No exceptions are made. (...)
When it receives a complaint, the first thing the Com-
mission does is to acknowledge receipt. The letter acknowl-
edging receipt is accompanied by an annex setting out the
purpose and giving details of the infringement proceeding.’

The complainant’s observations

In his observations, the complainant put forward that further
to the reply sent by the Commission on 20 February 1998, he
had addressed the Commission twice, on 2 March 1998, and
as a reminder on 8 June 1998. He wished to know whether

1.3. The Ombudsman noted that on 11 June 1998, in the
framework of the Ombudsman’s investigation, the Com-
mission expressly recognised the problem, and apologised
for the delay and the absence of a holding reply. However,
despite those regrets, and two additional requests by the
complainant, the complaint lodged on 1 November 1997
was only formally registered on 30 September 1998, and
required an additional intervention of the Ombudsman.

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1.4. According to the Commission’s own observations in the
framework of the Ombudsman’s own initiative inquiry
303/97/PD, no exceptions are made to the rule that all
complaints received by the Commission are registered
and a timely acknowledgement receipt is sent. The fact
that in the present case, the Commission, once it was
made aware of, recognised and apologised for the delay,
did still not hasten to register the complaint, constituted
an instance of maladministration.

2.

Failure to provide the complainant with the necessary
information

2.1. The complainant claimed that he didn’t receive any
information when he addressed the Representation of the
Commission in Marseilles. The Commission explained
that his request had been transferred to the geographically
competent Representation and that he received the
adequate information from the ‘Centre d’Informations
sur l’Europe — Sources d’Europe’ in Paris.

2.2. The Commission Representation in Marseille contacted
the competent services to provide the complainant with
the adequate information about the possible appeals
against a failure to reply by the Commission. Thus, there
appeared to have been no instance of maladministration
concerning this aspect of the complaint.

Conclusion

On the basis of the Ombudsman’s inquiries into the second
aspect of the case, there appeared to have been no maladminis-
tration by the Commission.

As far as the first aspect of the case was concerned, it appeared
necessary to make the following critical remark:

According to the Commission’s own observations in the
framework of the Ombudsman’s own initiative inquiry
303/97/PD, no exceptions are made to the rule that all
complaints received by the Commission are registered
and a timely acknowledgement receipt is sent. The fact
that in the present case, the Commission, once it was
made aware of, recognised and apologised for the delay,
did still not hasten to register the complaint, constitutes
an instance of maladministration.

Given that these aspects of the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

CANCELLATION OF A CALL FOR PROPOSALS

Decision on complaint 130/98/OV against the European Com-
mission

The complaint

In January 1998, Mrs Caroline Jackson MEP made a complaint
to the Ombudsman on behalf of a foundation, alleging
maladministration by DG XXIII in a call for proposals pro-
cedure. The relevant facts were as follows:

On 13 December 1996, the foundation (hereafter ‘the com-
plainant’) submitted an application in response to the Call for
proposals — 96/C246/15 issued by the European Commission
(DG XXIII) under its Action in Favour of Cooperatives, Mutual
Societies, Associations and Foundations programme.

The complainant received no information from DG XXIII
about the outcome of its application until 24 August 1997,
when the Commission placed an announcement in the Official
the programme had been cancelled.
Journal stating that
However, no reasons were given for this cancellation. The
complainant was officially informed of the cancellation by
letter of DG XXIII dated 18 August 1997. Later, further to
Parliamentary Question H-0717/97 of October 1997, Mrs
Caroline Jackson MEP found out that the Call for proposals
had been cancelled because the programme had never received
the authorisation from the Council of Ministers and therefore
missed a budget. The complainant, who had contacted itself
the Commission in March and June 1997 for information on
the outcome of its application, was never informed about
these developments. Also, DG XXIII’s reply to the complainant
stated that
the criteria of
the 12 programmes finally approved for financing, but the
complainant was never informed of those criteria.

its application failed to meet

The MEP complained to the Ombudsman on behalf of the
complainant alleging, in summary the Commission: advertised
a Call for proposals based on a programme which had no
Council approval; failed to inform the complainant that the
programme was still subject to Council approval and about
subsequent developments; delayed excessively before cancel-
ling the programme and in informing the complainant of the
the
cancellation;
reasons for the cancellation of the programme, and about the
fact that its application failed to meet the programme criteria.

failed to inform the complainant about

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The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission stated that it understood that the
cancellation of the call for proposals had caused disappoint-
ment, but that it did not share the view of maladministration.
The Commission recalled the background and the legal
situation of the case:

The Call for proposals was published on 24 August 1996 (OJ
1996 C 246/16) and was intended to co-finance from the
budget line on social economy (heading B5-321 of the 1997
Budget) projects in which cooperatives, mutual societies,
associations and foundations (CMAFs) were involved. These
projects had to respect
the principles laid down in the
Commission’s proposal for a multi-annual (1994-1996) work
programme for CMAFs. This proposal, approved by the
Commission on 17 February 1994, was submitted to the
Council for adoption of a decision. The legal basis for this
decision would be Article 235 of the EC Treaty, which requires
unanimity. The Call for proposals was linked to the draft
programme, which the Commission believed would be adopt-
ed on time. However, by the end of 1996, the proposal failed
to obtain the general consensus. Following the publication of
the Call for proposals, DG XXIII had received 173 requests for
financing by 31 December 1996. An inter-department group
which examined the projects during the first months of 1997,
selected 22 projects according to the criteria set out in the Call
for proposals and the commentary of budget line B5-321 for
the year 1997.

In the meantime however, further to the Order of the President
of the Court of Justice of 24 September 1996 in joined cases
C-239/96 R and C-240/96 R (UK v. Commission, application
for interim measures) (1), the expenditure by the Commission
on social exclusion and poverty, not based on acts adopted by
the Council, was put in question. Given this legal uncertainty,
the Commission decided that it would withdraw its proposal
for a programme, to which the Call for proposals referred. On
29 July 1997 it took the formal decision to cancel the Call for
proposals and to withdraw its draft programme. However, the
Commission decided to take into account the results of the
evaluation carried out by the inter-department group so that
the work completed up to that date by both the candidates
and the Commission services would be usefully turned out. It
therefore decided to co-finance a limited number of projects

(1) Joined Cases C-239/96 R and C-240/96 R, United Kingdom v.

Commission, [1996] ECR I-4475.

(12 from the 22) which had been selected from the 173
submitted in the context of
for proposals. The
proposal of the complainant however was not considered
eligible under the criteria of the Call for proposals.

the Call

The decision to co-finance the 12 projects was taken on basis
of the Commission’s Communication of 6 July 1994 to the
Budgetary Authority concerning legal bases and maximum
amounts (SEC (94) 1106 final). The selected projects were
‘non-significant and pilot projects’ within the meaning of the
1994 Communication. On 18 August 1997, DG XXIII sent a
letter to all candidates whose project had not been selected in
order to inform them about
this
background, the Commission gave the following explanations
for the different points raised by Mrs Jackson MEP:

the situation. Against

As regards the allegation that the Commission published a Call
for proposals based on a programme which was not approved
by the Council, the Commission observed that it believed that,
in accordance with normal practice, the programme would
have been adopted and that the action for financing projects
would have been continued through the next budgetary year.
This position was reinforced by the fact that the Budgetary
Authority decided that appropriations should be given for the
social economy line for 1997 on the same grounds as it had
been during the previous years.

As regards the allegation concerning the late cancellation of
the programme, the Commission observed that it withdrew
the project in July 1997 only after it became clear that there
was no chance even for a late adoption of the programme.

As regards the alleged failure of information and the alleged
delay, the Commission first stated that the Official Journal
notice clearly mentioned that the programme was still a
proposal to be adopted by the Council. This way of proceeding
was in accordance with the practice at the time for carrying out
preparatory actions and innovative projects. The Commission
further observed that DG XXIII decided, until all legal problems
were sorted out in July 1997, not to prepare preliminary
replies to individual enquiries before that date. Therefore the
Commission could not give a clear answer to the complainant
in March or June 1997. The Commission further stated that if
informed the applicants as soon as possible after the decision
had been taken, i.e. 12 working days after 29 July 1997, which
is not an unreasonable delay.

As regards the alleged failure to inform about the reasons for
the cancellation, the Commission observed that, since the
cancellation of the proposal for a programme was essentially
a technical question unrelated to the merits of the applications,
it decided that a standard letter which did not go into
the complex legal and political reasons for cancelling the
programme was most appropriate.

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Finally, as regards the allegation that the complainant was
never informed that its application failed to meet the criteria
of the programme, the Commission answered that it is normal
practice to inform applicants only when the final decision is
taken and not at each stage of the selection procedure.

The complainant’s observations

The complainant did not submit any written observations.
However, in a telephone conversation with the Ombudsman’s
office, the representative of the complainant stated that it was
not satisfied with the answers given to their complaint.

The decision

1.

The advertisement of a Call for proposals based on a
programme which had still not been approved by the
Council

1.1. The first allegation concerns the fact that the Commission
invited applications for a programme that had still no
Council approval. The Commission observed that
it
believed in good faith that the programme would have
been adopted on time, and that
this position was
reinforced by the fact
the Budgetary Authority
that
decided that appropriations should be given for the
budget line on social economy (B5-321) for 1997 on the
same grounds as it had been during the previous years.

that

time,

It appears that, at

1.2. The Ombudsman notes that the Commission’s proposal
for a Council Decision relating to a multi-annual work
programme for CMAFs was sent to the Council on
17 February 1994. The Call for proposals, which was
based on this draft programme, was published on
24 August 1996.
the
Commission believed that the programme would be
adopted by the Council. This information is confirmed
by the fact that the Call
for proposals itself clearly
mentioned in footnote (1) that the European Parliament,
as well as the Economic and Social Committee had given
a favourable opinion at their respective plenary sessions,
but that the examination of the proposal by the Council
was not complete. This way of proceeding was also in
accordance with the practice for carrying out preparatory
actions and innovative projects. The Ombudsman there-
fore considers that
for
proposals 96/C246/15 on a date when the Commission
was still waiting for its draft programme to be adopted
by the Council, did not constitute an instance of malad-
ministration.

the publication of

the Call

2.

The alleged late cancellation of the programme in July
1997

2.1. As regards the alleged late cancellation of the programme,
the Commission stated that it withdrew its programme
only in July 1997 when it became clear that there was no
chance even for a late adoption by the Council. The
Commission also stated that it had decided to take into
account the results of the evaluation of the applications,
in order to usefully turn out the work carried out until
that date.

2.2. Principles of good administrative behaviour require that
the Commission avoids unnecessary delay in its action,
or provides a reasonable explanation when such a delay
occurs. In the present case, it appeared from both the
Commission’s comments as from the answer given
to Parliamentary Question E-3169/97 (1) that the draft
programme had not been endorsed by the Council by the
end of 1996. Moreover, legal uncertainty had risen in
September 1996 when,
further to the Order of the
President of the Court of Justice in joined cases C-239/96
R and C-240/96 R, the expenditure on social exclusion
and poverty by the Commission, not based on acts
adopted by the Council of Ministers, was put in question.
In those circumstances, the Ombudsman considers that
the Commission’s argument related to a chance for an
even late adoption by the Council, can be sustained only
with difficulty.

2.3. For those reasons, the Ombudsman considers that the
Commission did not provide an acceptable and consistent
explanation to justify why it only withdrew its pro-
gramme on 29 July 1997, when already by the end of the
year 1996, i.e. 34 months after the draft programme had
been sent to the Council, it was clear that the programme
had not been endorsed. The Commission’s failure to
avoid a delay in its decision to withdraw the programme
and to cancel the Call for proposals therefore constituted
an instance of maladministration.

3.

The alleged failure to inform the complainant

3.1. As regards the allegation that the Commission did not
inform the applicants that
the programme was still
subject to Council approval, the Commission answered
by referring to the notice of the Official Journal. The
Ombudsman noted that the notice which announced the
Call for proposals indeed mentioned that the examination
of the proposal by the Council was not complete. The
allegation that the applicants were not informed about
this could thus not be retained.

(1) Written Question No 3169/97 by Raymonde Dury to the Com-

mission, OJ 1998 C 196/2.

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3.2. As regards the alleged delay in informing the complainant
about the cancellation of the programme and about the
previous developments which lead to that cancellation,
the Commission stated that it took the formal decision to
cancel the programme on 29 July 1997 and informed the
applicants on 18 August 1997. The Commission added
that, until the final decision was taken, it was not possible
inquiries.
to prepare preliminary replies to individual
Therefore the Commission could not give a clear answer
to the complainant in March or June 1997.

3.3 .Principles of good administrative behaviour require that
the Commission keeps persons informed about
the
evolution of the file which concerns them and indicates
the new legal or factual elements in that file. In the
present case it appeared that, at no time since December
1996, when the Commission’s draft programme was not
approved by the Council and when legal uncertainty had
risen further to the Order of the President of the Court of
Justice of 24 September 1996, the complainant was
informed about those elements. This failure of infor-
mation therefore constituted an instance of maladminis-
tration.

4.

The alleged failure to give reasons for the cancellation

4.1. The complainant alleged that the Commission did not
communicate the reasons of the cancellation of the
programme and did not inform earlier that its application
did not meet the criteria of the programme. The Com-
mission observed that a standard letter which did not go
into the complex legal and political reasons for cancelling
the programme was considered most appropriate.

4.2. As regards this allegation, the Ombudsman notes that the
complainant was at different stages in the procedure
informed both that its application failed to meet the
criteria of the programme, and that the programme had
been cancelled. The Ombudsman considers that this
contradictory information given to the complainant is
due only to the confused legal situation which the
Commission created by having cancelled the Call for
proposals but, at the same time, having selected and co-
financed 12 projects which had been presented under the
cancelled Call.

present case, it appeared that, by a formal notice publi-
shed in the Official Journal C 233 of 1 August 1997, the
Commission announced that the Call for proposals was
cancelled.

4.4. For those reasons, the Ombudsman considers that, by
having cancelled the Call
for proposals 96/C246/15
on 29 July 1997, and having subsequently co-financed
12 projects which were presented and selected under that
cancelled Call, the Commission failed to act consistently.
Similarly, by having informed the complainant that the
reason why its application was not accepted was the
cancellation of the Call for proposals, although in reality
12 projects had received funding further to that Call,
the Commission failed to act consistently. Those facts
therefore constituted instances of maladministration.

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remarks:

Principles of good administrative behaviour require that
the Commission avoids unnecessary delay in its action,
or provides a reasonable explanation when such a delay
occurs. The Ombudsman considers that the Commission
did not provide an acceptable and consistent explanation
to justify why it only withdrew its programme on 29 July
1997, when already by the end of the year 1996, i.e.
34 months after the draft programme had been sent to
the Council, it was clear that the programme had not
been endorsed. The Commission’s failure to avoid a delay
in its decision to withdraw the programme and to cancel
the Call for proposals therefore constituted an instance
of maladministration.

The same principles require that the Commission keeps
persons informed about the evolution of the file which
concerns them and indicates the new legal or factual
elements in that file. In the present case it appears that, at
no time since December 1996, when the Commission’s
draft programme was not approved by the Council and
when legal uncertainty had risen further to the Order of
the President of the Court of Justice of 24 September
1996,
those
elements. This failure of information therefore constituted
an instance of maladministration.

the complainant was

informed about

4.3. According to the principles of good administrative behav-
iour, the Commission should be consistent in its adminis-
takes. The
trative action and with the decisions it
cancellation of a Call for proposals means that this Call is
void and cannot have any legal effect anymore. In the

According to the principles of good administrative behav-
iour, the Commission should be consistent in its adminis-
takes. The
trative action and with the decisions it

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Ombudsman therefore considers that, by having can-
celled the Call for proposals 96/C246/15 on 29 July
1997, and having subsequently co-financed 12 projects
which were presented and selected under that cancelled
Call, the Commission failed to act consistently. Similarly,
by having informed the complainant that the reason why
its application was not accepted was the cancellation of
the Call for proposals, although in reality 12 projects had
received funding further to that Call, the Commission
failed to act consistently. Those facts therefore constituted
instances of maladministration.

Given that those aspects of the case concern procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

FAILURE TO PROVIDE INFORMATION TO A TACIS CONSULTANT

Decision on complaint 307/98/IJH against the European Com-
mission

The complaint

in practical terms, blacklisted him. He asked for comments on
these points. He also asked a number of specific questions:
what was the complaint that the Commission received against
him in February 1996?; why did the Commission not inform
him at the time either that the complaint had been made or of
its content?; and why had the Commission not approached
him to seek his response to the complaint?

On 4 December 1997, the Commission services sent a three-
paragraph reply. The first paragraph stated that all questions
related to the complainant’s contract should be referred to the
company which employed him. The other two paragraphs
were as follows:

‘Please allow me further to stress that it is impossible to
comment on the reasons why tenders from consultants tendering
for Tacis projects in which you have taken part has not led to
tender procedures are
any work. As you might know all
confidential and the best way to have knowledge about the
reasons that a consultant did not win a tender is to ask the
consultant. As part of the procedure all tenderers receive a letter
stating the reasons for not winning the tender and the name of
the winner.

In March 1998, Mr L. made a complaint against the European
Commission. According the complainant, the facts were, in
summary, as follows:

You seem to be speculating in the relations between an eventual
complaint and the fact
that consultants have not won a
tender. Please understand that I don’t analyse and comment
speculations.’

From October 1995 to September 1996, the complainant
worked as a resident monitor of the EC-funded Tacis (1)
programme in Central Asia and Mongolia. He was employed
under contract by a consultancy company. In February 1996,
he was informed by his team leader that the Commission
services in Brussels had asked for his dismissal, apparently as a
result of a complaint made against him by the leader of the
European Union Tacis programme coordinating unit.

The complainant in fact continued to work as a monitor until
the expiry of his contract in September 1996. However, his
contract was not renewed by the consultancy company and he
was subsequently not accepted for employment on certain
other Tacis projects.

On 7 November 1997, the complainant wrote to the acting
head of Unit of DG1A/C4 of the Commission in Brussels. He
explained the circumstances surrounding the non-renewal of
his contract, his subsequent difficulties in obtaining alternative
employment and that he considered that the Commission had,

(1) Technical Assistance to the Commonwealth of Independent States

(States of the former Soviet Union and Mongolia).

Being dissatisfied with this reply, the complainant addressed
the Ombudsman. He claimed that the Commission should
have informed him of the complaint made against him and
given him a chance to answer it.

The inquiry

The Commission’s opinion

The Commission’s opinion included the following points:

The Commission has no direct influence on a Contractor’s
staff policy and cannot decide to terminate an expert’s contract
of employment. It is limited to a quality control of experts
when awarding a contract and can only intervene with the
Contractor if the performance of his staff in the execution of
his contractual obligations is not satisfactory. It is then for the
Contractor to take the necessary measures for improving his
performance.

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The Commission was aware of difficulties in cooperation with
local authorities in the discharge of this assignment, but did
not take action, leaving it to the Contractor to sort out his staff
problems on the ground. Nor did the Commission exert
pressure on the Contractor in order to terminate the complain-
ant’s employment.

3.

The principles of good administrative behaviour require
that answers to correspondence shall as far as possible be
helpful and reply to the questions which are asked. The
Commission’s evasive and unhelpful responses to the
complainant constitute an instance of maladministration.

the Contractor proposed a slightly different

When the monitoring contract was to be renewed in Decemb-
er,
team of
including the complainant. As far as the
monitors, not
Commission is concerned, such replacements are a common
occurrence, particularly as regards longer term assignments.

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark:

Conclusion

The Commission has not blacklisted the complainant for
further work: ‘the allegations put forward in this respect in the
complaint are largely based on conjecture and are not substantiated
enough to allow verification’.

The complainant’s observations

Not having received any observations from the complainant,
the Ombudsman’s services attempted to contact him by
telephone and e-mail. In an e-mail sent on 21 September
1999, the complainant informed that Ombudsman that from
September 1998 to January 1999 he had worked on a Tacis
in Russia and since February 1999 he has been
project
employed in Russia as resident team leader of a UK Know How
Fund project. He pointed out that the Commission’s opinion
ignored a number of points made in his complaint, but also
indicated that he was no longer interested in seeking any
further answers from the Commission in view of the time that
had passed since the events in question.

In its reply to the complainant’s letter, the Commission
failed to answer his questions. Nor did the Commission
invoke any grounds of confidentiality as a reason for not
providing the information requested. In its opinion on
the complaint
the Commission
to the Ombudsman,
similarly failed to respond to the complainant on these
matters.

The principles of good administrative behaviour require
that answers to correspondence shall as far as possible be
helpful and reply to the questions which are asked. The
Commission’s evasive and unhelpful responses to the
complainant constitute an instance of maladministration.

Since the complainant was no longer interested in seeking any
further answers from the Commission, it was not possible to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

ADMINISTRATIVE AND FINANCIAL HANDLING OF A PROJECT

Decision on complaint 440/98/IJH against the European Com-
mission

The decision

The complaint

1.

2.

The complainant believed that his contract with a Tacis
consultancy was not renewed because of pressure from
the Commission following a complaint against him. He
wrote to the Commission asking what the complaint was,
why he had not been informed of it or its content and
why he had not been given the opportunity to answer it.

In its reply to the complainant’s letter, the Commission
failed to answer his questions. Nor did the Commission
invoke any grounds of confidentiality as a reason for not
providing the information requested. In its opinion on
the Commission
to the Ombudsman,
the complaint
similarly failed to respond to the complainant on these
matters.

The complaint concerned Ecotourism Ltd’s project ‘Heritage
trails: rural regeneration through sustainable tourism in regions
of Bulgaria and Slovenia’, funded by the Tourism Unit of
the Commission, DG XXIII. The complainant claimed that
Ecotourism had a very good relationship with the project
manager throughout the project, which was a great success.
However, the Commission mishandled the financial aspects of
the project causing Ecotourism serious financial loss.

The complainant alleged in particular the following:

(i) Unnecessary delay by the Commission as regards both
the interim and final payments (four and ten months

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delay respectively) and lack of clarity by the Commission
as to which accounting system it used and which
documents Ecotourism had to supply;

4 December 1996. The delay arose partly from the fact
that Ecotourism changed its name and bank account
number. However, the Commission regretted the delay
which occurred.

(ii)

Lack of continuity in the project management. According
to the complainant, Ecotourism had a very good relation-
ship with the project manager throughout the project
and it was clear that the project had been a great success.
However, when the financial controller took over the
situation changed and they continuously raised issues
which had been discussed and agreed earlier with the
project manager;

(iii) The Commission made a large reduction in the final
payment by replacing, without mentioning it to Ecotour-
ism, the budget with the financial report which Ecotour-
ism presented in the interim report. Furthermore, the
Commission recommended a series of changes to the
final financial report, some increases and some decreases.
Ecotourism made all the changes. The Commission then
added up all the reductions in the budget and ignored all
the increases, thus arriving at a reduced budget.

(iv) By making the interim payment

in July 1996 the
Commission accepted without comment
the interim
report, including the financial report. The financial report
contained movements between individual budget head-
ings and Ecotourism then continued the project on this
basis. If there was nothing wrong with the interim report,
then there is nothing wrong with the final report which
is in line with the interim report.

(v) The Commission refused to pay for work performed by
Ecotourism, i.e. a manual produced by Ecotourism in
agreement with the Commission and translation of a
document into German at the Commission’s request.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission accepted that the disputes between
the complainant and the Commission concerned the financial
aspects of the project and not the technical aspects. Neverthe-
less, the fact that the technical aspects had been carried out in
line with the agreement did not exempt the complainant from
complying with the financial conditions.

As concerns the final payment, the Commission stated
that the delay which occurred could not have been
avoided. Ecotourism submitted its final report and state-
ment of accounts on 16 June 1997 and additional
information was forwarded in August 1997. Following
an examination of this material in Autumn 1997, the
Commission decided to perform a control visit to Ecot-
ourism in order to clarify the situation. The control visit
took place in November 1997 and was followed by
the Commission requesting additional information from
to the Commission in
Ecotourism, which was sent
December 1997. Thereafter, a series of correspondence
followed in relation to the finalisation of the payment.
The financial controller approved the final payment on
20 March 1998 and the final payment was made on
1 April 1998.

(ii) The reduction in the final payment was due to the
requirement that all costs had to be accepted as eligible.
The amount specified in the Declaration of the financial
contribution is a maximum. The actual payment depends
on proof of real costs incurred and individual items must
not exceed the corresponding budget headings established
in the agreed budget. The Commission stressed that this
means that if a real cost incurred is lower than that
indicated in the budget, the subvention must be reduced
proportionately.

The Commission’s approach to Ecotourism’s project,
which is standard for all Tourism actions for which
subventions are provided, was:

— To insist on supporting documentation in the case

of expenditure claimed;

— To reduce the amounts of eligible expenditure
claimed where there are indications that they exceed
the real costs or where proofs are not adequate;

— To disallow expenditure in excess of the budget
headings which constitute the approved budget.

In responding to the different allegations the Commission put
forward, in summary, the following points:

(i) As regards the interim payment, the interim report was
received on 5 August 1996 and payment was issued on

The final payment was based on the financial report
submitted by Ecotourism in the interim report. The
Commission found that
the financial report, broken
down into individual headings, represented a carefully
prepared reassessment of the project needs. Since the
total amount could not be increased, when some headings
increased, others had to be reduced.

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Basing the final calculation on the revised budget did not
involve a breach of rules and did not disadvantage
Ecotourism. In fact, it led to less reduction in the project
expenditure than if the original budget would have been
used for the calculation. Therefore, the complainant’s
allegation that the Commission replaced the budget with
a financial report by Ecotourism in order to justify large
reductions in the final payment were unfounded.

(i)

The delay for the interim payment was not explained.
Ecotourism had to pay for the delay and stated that the
Commission’s ‘regret’ is not enough. As regards the final
payment the complainant pointed out that five months
passed between the visit to Ecotourism and the payment,
and the Commission provided no explanation for this
delay. In both cases the delays had caused severe financial
damage to Ecotourism which will take several years to
overcome.

(iii) The allegation that the Commission refused to pay for
work performed was unfounded. It had only disallowed
costs which it had found ineligible. In case of performed
work, the Commission requested time sheets as proof of
performed work. As regards the manual produced by
Ecotourism, Ecotourism was paid the sum ECU 27 500,
for which it presented an invoice. The balance of
ECU 2 500 claimed by Ecotourism could not be accepted
in the absence of proof that the costs had actually been
incurred.

(iv) The fact that the interim report was accepted without
comment did not mean that the final report was automati-
cally accepted. The interim report only shows how the
project is progressing. Approving the interim report did
not imply approval of the expenditure incurred as the
final payment must always be subject to producing the
necessary proofs of all expenditure claimed.

(v) There was no lack of clarity as regards the accounting
system. The fact that a large part of the complainant’s
project was accounted for by ‘in-kind’ costs required
particular vigilance in the matter of seeking proofs.
Time sheets and pay slips are normal and reasonable
requirements for personnel costs. The complainant had
been kept fully informed of the situation and the need for
contractors providing ‘in-kind’ contributions to keep time
sheets was communicated to Ecotourism at a meeting in
Brussels in February 1996.

(vi) There was no lack of continuity in the project manage-
ment. It is normal practice that the project manager
responsible for the technical aspects of the project does
not deal with the financial questions. The project manager
was available for further technical queries up to the end
of 1997.

The complainant’s observations

(ii) The Commission acted unreasonably by replacing the
original budget with the financial report in the interim
report
thereby investing it with the authority of a
contractual agreement without informing Ecotourism.

(iii) The Commission did not comment on its refusal to
pay the cost of a translation which it required from
Ecotourism. Nor did it justify its refusal to pay for a
manual produced by Ecotourism. The refusal was based
on the fact that Ecotourism did not provide time sheets,
which the Commission did not specify at any time.
However, proof of the time spent on the manual could
easily be provided, but the Commission never asked for
this. Moreover, proof of all expenditure was submitted to
the extra
the Commission. Ecotourism provided all
information that the Commission requested.

(iv) After the submission of the interim report the Com-
mission did not comment on the report, except for a
phone call from the project manager who commended
the report. This indicated that movements between
budget lines were acceptable to the Commission. Move-
ments between budget lines comparable to the ones in
the interim report took place throughout the project.

(v) The Commission had every chance to inform Ecotourism
if any changes to their procedures were needed. Further,
the question of time sheets was not discussed at the
meeting in February 1996. No documentation can prove
this. The only thing discussed was the issue of time
records for sub-contractors and for partners making in-
kind contributions. Ecotourism kept time sheets for all
in-kind contributions and the sub-contractors provided
invoices with details on the time spent, backed up by
reports of the performed work.

In the observations the complainant maintained the complaint,
stating that the main issues were the delays in the payments
and the lack of
justification as to why the Commission
withheld funds. In particular the complainant stressed that:

(vi) As regards the alleged lack of continuity, the complainant
put forward that it had been involved in other projects
with the Commission without having to face this prob-
lem. For example DG1 of the Commission provides

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guidelines at the beginning of the project and it has
adopted procedures including a financial control before
approving any change in the project. Since DG1 found it
necessary to adopt such a procedure, the complainant
wondered why the Tourism Unit did not.

The decision

1. Delay in the interim payment

1.1. The complainant claimed that the interim payment was
delayed by four months, although the importance of
a prompt
interim payment had been underlined by
Ecotourism at the beginning of the project. The Com-
mission regretted the delay in the interim payment and
explained that it arose partly from the fact that Ecotour-
ism changed its name and bank account number.

1.2. Principles of good administrative behaviour require out-
standing payments to be made within a reasonable time.
According to Article 4a of the Declaration of the financial
contribution (hereafter referred to as the Declaration), the
interim payment shall be paid after receipt and approval
of the interim report. Article 4c of the Declaration states
that it takes up to 60 days for the payment to reach the
bank account after approval by the Commission.

1.3. The Commission received the interim report on 5 August
1996 and payment was issued on 4 December 1996.
This is a period of four months, including part of the
60 days calculated for the arrival of the payment after
approval. This means the Commission took approxi-
mately two months to approve the report and to under-
take the changes of the name and bank account number
of the complainant. This period is not obviously excessive,
even taking into account the fact that the complainant
had requested prompt payment. There appears therefore
to be no maladministration in relation to this aspect of
the case.

2. Delay in the final payment and lack of clarity

2.1. The complainant claimed that the final payment arrived
five months after the control visit
took place. The
complainant also claimed that there was a lack of clarity
by the Commission as to which accounting system it
used and which documents Ecotourism had to supply.
The Commission stated that the delay was due to the
complainant not submitting the relevant documentation,
that Ecotourism had been kept fully informed of the
situation and that normal methods were used in proceed-
ing with the project.

2.2. According to Article 4a of the Declaration, the final
payment shall be paid after receipt and approval of the
documents mentioned in Article 8c of the Declaration,
i.e. the final report and an account statement which must
set out all details of income and expenditure. Further,
Article 4c of the Declaration states that it takes up to
60 days for the payment to reach the bank account after
approval by the Commission.

2.3. The final report was submitted in June 1997. After various
exchanges of information between the Commission and
the complainant in summer and Autumn 1997 a control
visit
to Ecotourism took place in order to inspect
documents on 10 November 1997. The last documenta-
tion in relation to the account statement appears to have
been submitted by the complainant in the beginning of
December 1997. The payment was approved by the
Commission’s financial controller on 20 March 1998
and payment was issued on 1 April 1998. Therefore,
there was a period of approximately five and a half
months between submission of the final report and
provision of the last information requested by the Com-
mission. There was then a further period of approximately
three and a half months for the approval of the payment
by the Commission.

2.4. As regards the five and a half month period, no evidence
was supplied to the Ombudsman of any excessive or
avoidable delay by the Commission. It appeared that the
complainant was surprised both at the amount of finan-
cial information which had to be supplied and at the
substantive rules governing allowable costs. However,
the complainant had received notice of the financial
requirements applicable to the project and there is
therefore, no evidence of maladministration by the Com-
mission. However,
the Ombudsman made a further
remark in relation to this point below.

2.5. As regards the three and half month period, the Com-
mission did not describe in detail
its procedures for
approval of payment. However, the DG XXIII Tourism
Unit stated the following in letters to the complainant:

‘I can inform you that the final payment for an amount
of 71 647 ECU has been prepared and you will be
informed after its approval by the Financial Control of the
Commission.’ (Letter of 16 February 1998)

‘(…) I must refer you to my letter of 16 February 1998
(…) As indicated in this letter the final payment for an
amount of 71 647 ECU is now awaiting approval by the
(Letter of 4 March
Commission’s Financial Control.’
1998)

arrangements

amount
for payment
‘The
(71 647 ECU) are now in progress.’ (Letter of 27 March
1998)

this

of

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11.9.2000

These letters contained no explanation visible to the
complainant as to why the Commission needed a further
three and a half months to approve payment following a
five and half months period in which it had sought further
information on various aspects of the complainant’s final
report. The letters contained only very vague wordings
not clearly informing the complainant of when the
payment was approved and when the 60 days, mentioned
in Article 4c of the Declaration, would begin to run. The
Declaration is also ambiguous when referring to the
approval by the Commission in Article 4c of the Declar-
ation, since it is not clear whether this refers to DG XXIII,
for Financial Control,
or to the Directorate General
DG XX, or to both.

2.6. Principles of good administration require that payments
should be made within a reasonable time and that clear
and understandable information should be provided, on
request, about the causes of any delay. In response to
repeated inquiries from the complainant, the Commission
did not adequately explain why it needed a further three
and a half months to issue payment, following a period
of five and a half months during which it had sought
further information on various aspects of the complain-
ant’s final report. Nor was it clear whether the approval
of the payment referred to in the Declaration of the
financial contribution means approval by DG XXIII, or
by the Directorate General for Financial Control, DG XX.
the Commission did not appear to have
Moreover,
informed the complainant when the final approval of the
financial aspects of the project was given and when the
60 days period allowed for the payment to reach the
complainant’s bank account began to run.

3. Alleged lack of continuity

Ombudsman was not aware, however, of any rule or
principle which requires that the technical and financial
aspects of a project should be dealt with by the same
person or unit. As regards the alleged agreements between
the project manager and Ecotourism, Article 10 of the
Declaration provided that changes to the Declaration
have to be agreed in writing. There appeared therefore to
be no maladministration in relation to this aspect of the
case.

4.

The alleged replacement of the budget with the financial
report

4.1. The complainant alleged that, without informing Ecotour-
ism,
the Commission replaced the budget with the
Ecotourism’s interim financial report, thereby reducing
the final payment. According to the Commission,
it
replaced the budget with the financial report because it
found that the financial report, broken down into individ-
ual headings, represented a carefully prepared reassess-
ment of the project needs. Moreover, its action did not
breach any rule and did not disadvantage Ecotourism,
since it led to less reduction in the project expenditure
than if
the original budget had been used for the
calculation.

4.2. The Ombudsman was not aware of any rule or principle
which would allow the Commission unilaterally to
replace an agreed budget. However, since the Commission
explained that the result of its action was to Ecotourism’s
advantage, the Commission did not act unreasonably
towards the complainant. There appeared therefore to be
no maladministration in relation to this aspect of the
complaint.

3.1. The complainant claimed that there was lack of continuity
in the Commission’s dealings with the project. According
to the complainant, Ecotourism had a good relationship
with the project manager and made agreements with him
about financial matters. However, the situation changed
when the financial controller became involved since
he was not aware of what had been agreed between
Ecotourism and the project manager.

3.2. The Commission stated that it was normal practice that
the project manager responsible for the technical aspects
of the project did not deal with the financial questions.

5. Movements between budget lines

5.1. The complainant claimed that the Commission’s approval
of the interim report indicated that movements between
individual headings in the budget were accepted since
the financial report submitted with the interim report
contained such movements. The Commission stated
that the interim report only shows how the project is
progressing and that its approval did not automatically
mean that the final report would also be accepted. Rather,
the final payment always depends on the supply of
necessary proof of expenditure claimed.

3.3. The Ombudsman already addressed a critical remark to
the Commission in paragraph 2.6 above concerning its
failure to provide adequate information to the complain-
ant about responsibility within the Commission for
dealing with the financial aspects of the project. The

5.2. According to Article 3a of the Declaration, Annex 2
which set out the details of project income and expendi-
ture, was an integral part of the Declaration. According
to Article 10 of the Declaration, amendments must be
made in writing and approved by the Commission. This
that movements between individual headings
meant

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C 260/111

cannot take place without an amendment to the Declar-
ation. The Commission’s approval of the interim report
could not therefore change the requirements set out in
the Declaration. There appeared therefore to be no
maladministration in relation to this aspect of the case.

Ecotourism actually submitted its claimed proofs to
the Commission. There appeared therefore to be no
maladministration in relation to this aspect of the case.

6.

The reduction in the final payment

6.1. The complainant alleged that the Commission made a
large reduction in the final payment without justification.
Ecotourism supplied all the information the Commission
asked for and it had proof of all
its expenditure. As
regards the question of time sheets, the complainant
stated that Ecotourism could supply proof of the time
spent, but it claimed that the Commission never asked
for this.

6.2. The Commission explained the reduction by the fact that
some expenditures were not eligible. If no proof of real
costs is provided, the amount could not be paid. As
regards the question about time sheets, the Commission
stressed that time sheets are normal and reasonable
requirements in the case of claims for personnel costs.
Furthermore, the Commission did not accept that individ-
ual items of cost could exceed the corresponding budget
heading.

6.3. The Ombudsman noted that this part of the case relates
to what kind of proof of expenditure the beneficiary
should supply and what kind of proof was in fact
provided by Ecotourism. The Declaration did not give a
detailed explanation of what documents the beneficiary
has to supply, but merely stated that ‘all details of income
and expenditure’ should be submitted. This very wide
expression appeared to mean that Ecotourism must
supply any document which it may reasonably be
expected to provide in the context of the project. The
Ombudsman made a further remark in relation to this
point below.

6.4. The Ombudsman noted that the dispute arose mainly
from the fact that Ecotourism did not supply the Com-
mission with time sheets. The submission of time sheets
appears to be a reasonable requirement for justification
of claims for personnel costs. The complainant claimed
that Ecotourism could supply alternative proof of the
time spent on production of a manual, for which the
Commission did not accept part of
the costs. The
Commission should have been prepared to evaluate these
proofs in order to establish whether they are comparable
to time sheets. However, there was no evidence that

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark:

Principles of good administration require that payments
should be made within a reasonable time and that clear
and understandable information should be provided, on
request, about the causes of any delay. In response to
repeated inquiries from the complainant, the Commission
did not adequately explain why it needed a further three
and a half months to issue payment, following a period
of five and a half months during which it had sought
further information on various aspects of the complain-
ant’s final report. Nor is it clear whether the approval of
the payment referred to in the Declaration of the financial
contribution means approval by DG XXIII, or by the
Directorate General for Financial Control, DG XX. More-
over, the Commission does not appear to have informed
the complainant when the final approval of the financial
aspects of the project was given and when the 60 days
period allowed for the payment to reach the complain-
ant’s bank account began to run.

Given that this aspect of the case concerns procedures relating
to specific events in the past, it was not appropriate to pursue
a friendly settlement of the matter. The Ombudsman therefore
closed the case.

Further remarks

It should be obvious to any beneficiary of a Community
subvention that the Commission’s responsibility for the correct
execution of the Community budget requires it to adhere
strictly to the conditions of eligibility of expenditure which
are applicable to the subvention. Beneficiaries can therefore
reasonably be expected to read these conditions and seek
clarification if necessary. The Ombudsman noted, however,
that the Declaration of the financial contribution used for this
project appears to provide little useful guidance to beneficiaries
as to what in practice will be expected of them. The Com-
mission may therefore wish to consider whether the Tourism
Unit could provide easily understandable written guidelines
for beneficiaries of subventions, in order to help avoid possible
problems and misunderstandings in the future.

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Official Journal of the European Communities

11.9.2000

TAXATION OF TACIS AID TO RUSSIA

Decision on complaint 620/98/IJH against the European Com-
mission

The complaint

Assistance of the European Communities’ (signed with Russia
in July 1997), exempt individuals working on Tacis contracts
from Russian income tax. The Commission also stated that,
despite its intensive efforts, neither the Protocol nor the
General Rules have been ratified by the Duma or by presidential
decree.

The complainant worked in Russia from February 1995 to
February 1997 as project manager for a firm of consultants
which had won a contract with the Commission under the
Tacis (1) programme.

According to the contract between the Commission and the
firm, expatriate staff from Member States were to be exempt
from income tax in Russia. The complainant accepted the post
of project manager on this basis.

In 1996, the Russian authorities agreed that the complainant
should not pay tax on his 1995 earnings. However, in 1997
they required him to pay tax on his 1996 earnings. They based
the tax demand on the fact that the Protocol signed by the
Commission and the government of the former USSR on
2 August 1991, which provides that taxes are not to be
financed out of European Community funds, was never ratified
by the former USSR or by Russia.

The complainant claims that the Commission wrongly advised
that the Protocol could be relied on. He also claimed that the
Commission failed to answer his correspondence on this
matter and abandoned both himself and other Tacis consult-
ants in Russia.

The complainant claimed compensation for his financial losses
as a result of the Commission’s negligence: i.e. 25 000 US
Dollars taxes paid for 1996 and a similar amount which he
risked having to pay retrospectively for 1995.

The complainant also pointed out that Tacis aid money is
allocated by the European Parliament for specific purposes and
is already the product of taxation. To permit taxation of this
money indirectly funds the policies of the Russian government,
over which the European Parliament has no control.

The inquiry

The Commission’s opinion

According to the Commission, until the present case, prag-
matic solutions had been found in practice through the
issuing by the Commission’s Moscow delegation of certificates
attesting exemption from tax. ‘Although the legal situation may
have been precarious and still is far from satisfactory, the presentation
of these certificates to the respective tax offices together with a refusal
to pay has generally solved the problem.’

As regards the complainant’s personal loss, the Commission
pointed out that its standard Tacis contract informs contractors
about the tax privileges provided for in the Protocol but also
warns them that it does not accept financial responsibility ‘in
the event that the authorities should refuse to apply in favour of the
contractor the above-mentioned exemptions and privileges’. The
contract requires the Commission to ‘exert its best efforts
to support the contractor in dealing with the competent
authorities.’

The Commission claimed that it informed Tacis contractors
about the status of the Protocol and General Rules at briefing
meetings in 1996/7, two of which the complainant personally
attended.

The Commission also claimed that it provided the complainant
with every assistance which he could reasonably expect. In
particular, when it became clear late in 1997 that the Russian
tax administration had tightened its practices,
‘the Head of
Delegation immediately and repeatedly intervened on the complain-
ant’s behalf, but unfortunately without any tangible result.’ Copies
of four letters from the Commission to the Russian authorities
(dated in November 1997) were annexed to the Commission’s
opinion.

In its opinion, the Commission confirmed that the 1991
Protocol and the ‘General Rules applicable to the Technical

(1) Technical Assistance to the Commonwealth of Independent States.

The Delegation discussed the situation with the complainant
in April 1998 when the Russian tax authorities made their
final demand for payment. In order not to undermine the
Commission’s continuing efforts to reach an overall solution
by sending the wrong signal to the Russian tax authorities, the
complainant was strongly advised to invoke the Protocol again
and refuse payment.

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Official Journal of the European Communities

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The complainant’s observations

In his observations, the complainant maintained and restated
the complaint.

As regards the claim of failure to answer correspondence and
abandonment of himself and other Tacis consultants, the
complainant pointed out
the Commission had not
that
previously made him aware of the letters from its Head of
Delegation to the Russian authorities.

The observations accept that the complainant has no contrac-
tual remedy. However they argue that the Commission has a
duty of care, which arises because of the proximity of the
parties. The observations claim that the Commission has been
consistently negligent by failing to make further assistance to
Russia conditional on ratification of the Protocol and by failing
properly to explain the status of
to Tacis
contractors and consultants.

the Protocol

Furthermore, the complainant claims that his losses were
foreseeable and that the Commission is responsible for those
losses. The Commission’s suggested course of action of
invoking the Protocol and refusing to pay tax was wrong
because, in the absence of ratification of the Protocol, there
was no legal defense to the Russian tax demands. The
certificates of exemption issued by the Commission misrep-
resented the position both to consultants and to the Russian
tax authorities.

The observations also repeat the claim that the Commission
has been negligent towards European taxpayers, since money
allocated for aid programmes is taxed by the Russians and put
to uses over which the European Parliament has no control.

The decision

1.

The claims of misleading advice and lack of information

1.1. The complainant worked in Russia for a firm which had
a contract with the Commission to provide technical
assistance under the Tacis programme. The standard-
form contract between the Commission and the firm
contained the following provision (Annex F Art. 5.4):

1.2. Provision for exemption from taxes was included in a
Protocol (1991) and in General Rules (1997), agreed
between the Commission and the USSR and Russian
authorities respectively. However, neither the Protocol
nor the General Rules were ever ratified by the USSR or
by Russia.

1.3. The complainant received and paid a demand from the
Russian tax authorities for income tax on his earnings.
He claims that the Commission wrongly advised that the
Protocol could be relied on. He also claimed that the
Commission failed to answer his correspondence on this
matter and abandoned both himself and other Tacis
consultants in Russia.

1.4. Principles of good administrative behaviour require that
the Commission should take care not to provide mislead-
ing information. In 1995, the Commission included in its
contract with the firm for which the complainant worked
as a Tacis consultant in Russia a provision concerning
exemption from taxes, although it knew that the relevant
international agreement had not been ratified by the
Soviet or Russian authorities. It should have realised
that this was likely to mislead potential consultants
concerning their tax position.

1.5. Principles of good administrative behaviour also require
the Commission to reply to a citizen’s requests. On the
basis of the Ombudsman’s inquiries it appears that,
although the Commission intervened with the Russian
authorities on the complainant’s behalf, it failed to inform
him of its activity in due time.

2.

The claim for compensation

2.1. The Russian authorities required the complainant to pay
25 000 US Dollars in taxes on his Tacis earnings in 1996.
The complainant accepts that he has no contractual
remedy, but claims that his loss was foreseeable and that
the Commission is responsible for it. The Commission
contests liability.

2.2. The non-contractual liability of the Community is gover-
ned by Article 235 EC and the second paragraph of
Article 288 EC (1). According to established case-law, in

‘Natural and legal persons,
including expatriate staff,
from the Member States of the European Community
executing technical cooperation contracts financed out of
EC grant shall be exempted from business and income tax
in the NIS [Newly-Independent States].’

(1) Art. 235: ‘The Court of Justice shall have jurisdiction in disputes
relating to compensation for damage provided for in the second
paragraph of Article 288.’Art. 288, second paragraph: ‘In the case
of non contractual liability, the Community shall, in accordance
with the general principles common to the laws of the Member
States, make good any damage caused by its institutions or by its
servants in the performance of their duties.’

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11.9.2000

order for the Community to incur non-contractual liab-
ility, the applicant must prove the unlawfulness of the
the institution concerned, actual
alleged conduct of
damage and the existence of a causal link between that
conduct and the alleged damage (1).

2.3. In the present case, successive Tacis Regulations all
provide that taxes shall not be funded by the Com-
munity (2). However,
it is not obvious that failure to
respect this provision results from an act or omission
attributable to the Commission. Even if it does result
from such an act or omission, it is not obvious that
causation can be demonstrated, in view of the role of the
Russian authorities.

3.2. As noted in 2.3 above, successive Council Regulations on
which the Tacis programme is based provide that taxes
shall not be funded by the Community. This aspect of
the complaint primarily concerns the Commission’s
responsibility for the proper execution of the Community
budget. It therefore appears to fall within the remit of the
Court of Auditors to ‘examine whether all revenue has been
received and all expenditure incurred in a lawful and regular
manner and whether the financial management has been sound’
(Art. 248 (2) EC).

3.3. In application of the principle that a supervisory body
with a general remit gives way to a specialised body, the
Ombudsman considers that it is not justified to pursue
further his inquiry into this aspect of the complaint. He
will inform the Court of Auditors of the case.

2.4. As regards misleading information, the case-law of the
Court of First Instance bases non-contractual liability on
a legitimate expectation (3). Although the Ombudsman
has made a critical remark concerning the Commission’s
conduct (para 1.4 above),
it is not obvious that the
criticised conduct could justify a legitimate expectation
on the part of the complainant.

Conclusion

the

that

2.5. In these circumstances, the Ombudsman does not con-
sider
complainant has demonstrated an
entitlement to damages based on the existing case-law of
the Community Courts concerning the general principles
of non-contractual
liability common to the laws of
the Member States. The Ombudsman notes that the
complainant has the possibility to pursue his claim before
the Court of First Instance.

3.

The allegation of failure to protect the interests of
European taxpayers

3.1. The complainant claims that the Commission has been
negligent
towards European taxpayers, since money
allocated for aid programmes is taxed by the Russian
authorities and put to uses over which the European
Parliament has no control. In the complainant’s view, at
some point after 1991 when the Tacis programme began,
the Commission should have made further aid to Russia
conditional on ratification of the 1991 Protocol and later
the General Rules signed in 1997.

(1) See e.g Case T-113/96, E´ douard Dubois v Council and Commission

[1998] ECR-II 125.

(2) (1991-3) Reg. 2157/91, 1991 OJ L201/2, Art 6 (3); (1993-5) Reg.
2053/93, 1993 OJ L 187/1 Art 7 (3); (1996-9) Reg. 1279/96,
1996 OJ L165/1, Art 6 (3).

(3) Case T-203/96, Embassy Limousines v European Parliament, judge-

ment of 17 December 1998.

On the basis of the European Ombudsman’s inquiries into this
complaint, it appears necessary to make the following critical
remarks:

Principles of good administrative behaviour require that
the Commission should take care not to provide mislead-
ing information. In 1995, the Commission included in its
contract with the firm for which the complainant worked
as a Tacis consultant in Russia a provision concerning
exemption from taxes, although it knew that the relevant
international agreement had not been ratified by the
Soviet or Russian authorities. It should have realised
that this was likely to mislead potential consultants
concerning their tax position.

Principles of good administrative behaviour also require
the Commission to reply to a citizen’s requests. On the
basis of the Ombudsman’s inquiries it appears that,
although the Commission intervened with the Russian
authorities on the complainant’s behalf, it failed to inform
him of its activity in due time.

As regards the maladministration identified in point 1 above,
the Ombudsman does not consider that the complainant has
demonstrated an entitlement to damages based on the existing
case-law of the Community Courts. The complainant has the
possibility to pursue his claim before the Court of First
Instance. As regards the maladministration identified in point 2
above, given that this aspect of the case concerns procedures
relating to specific events in the past, it is not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

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Official Journal of the European Communities

C 260/115

TERMINATION OF ANTI-DUMPING PROCEDURE

Decision on complaint 650/98/(PD)/GG against the European
Commission

The complaint

Background

In June 1998 a complaint was lodged by a German company
against the decision of the Commission of the European
Communities to terminate an anti-dumping procedure.

The complainant’s allegations

The complainant made the following allegations:

1.

2.

3.

The Commission’s assessment of the facts was wrong;

The Commission manipulated the evidence and

Submissions and evidence were either wrongly interpret-
ed or deliberately ignored by the Commission

These allegations were based on the following claims made by
the complainant:

The definition of the relevant product was unsatisfactory and
should have been extended. There had been imports into the
EC from third countries during the relevant period and the
Commission had failed to consider the relevant evidence or
inquire into the matter. There had been offers from the
People’s Republic of China to supply the relevant product to
customers in the EC. The Commission’s allegation that the
Chinese producer produced several other products and was
therefore not likely to be interested in the product concerned
was not supported by the evidence used. There was no
that a switch to the
the argument
evidence to support
production of the relevant product would entail substantial
costs for the Chinese producer. The fact that the Chinese
exporter had asked for a review of its undertaking showed that
it did have an interest in exporting to the EC.

The inquiry

The complaint was sent to the Commission for its comments.

The Commission’s opinion

In its opinion, the Commission made the following comments
with regard to the complaint:

According to the undertaking reports submitted by the
exporter and the Eurostat figures available to the Commission,

there had been no imports of the product concerned since
1989. During the review investigation, the complainant had
refused to provide some essential information to the Com-
mission. The Commission had examined all the evidence
available and come to the conclusion that the anti-dumping
measures were no longer warranted on the basis of the
following facts: First, there had been a major diversification
from the product concerned due to the introduction of
substitute products. This fall in demand was the principal
cause of any injury the complainant may have suffered. This
conclusion was reinforced by the absence of imports since
1989. Second, although production and sales had fallen,
prices for the product concerned had shown some relative
improvement and the price for the main input had fallen. The
complainant had thus been able to reach a satisfactory degree
of profitability. Finally, there had been no likelihood of a
recurrence of dumping or injury if the anti-dumping measures
were allowed to lapse.

As to the allegedly wrong assessment of facts, the complain-
ant’s refusal to provide certain essential information had left
the Commission with no option other than to use the
information already in the file. The complainant had not
produced any evidence that the Commission’s findings were
wrong.

The same largely applied to the allegation according to
which the Commission had manipulated the evidence. It was
reasonable to assume that, since there had been no imports
since 1989, any problems which the complainant might
have experienced had diminished,
if not disappeared. Any
suggestion that the evidence was manipulated to deliberately
engineer an outcome unfavourable to the complainant thus
could not be accepted.

As to the third allegation, the failure of the complainant to
provide information had to be regarded as essential. It was
difficult to neglect or misinterpret information that had not
been provided. The evidence which had been provided had
been irrelevant. The widening of the inquiry to differently
defined products would have required a new investigation
based on a complaint. The evidence submitted relating to
imports had been rejected as insufficient. The purpose of anti-
dumping measures was not to prevent trade, but to remove
injury caused by unfairly traded goods. The evidence submitted
contained no indication that the imports referred to were
either dumped, in sufficient volumes or at prices that could be
considered to be injurious, or in contravention of the terms of
the undertaking. Neither had there been any acceptable
demonstration that the alleged imports were of Chinese origin.
Certain information provided by the complainant could not
be taken into account because it referred to a period outside

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11.9.2000

that investigated. No relevant evidence had been deliberately
neglected or misinterpreted.

The Commission also stressed that the complainant could
have attacked the contested decision before the Community
courts.

The complainant’s observations

In its observations, the complainant maintained its complaint.
It stressed that in its view the fact that the relevant product
had been imported into the EC during the period concerned
was also confirmed by the Eurostat figures themselves.

Further inquiries

Request for further information

On the basis of the above, the Ombudsman considered that he
needed further information in order to proceed with the
examination of the complaint. In his letter of 27 May 1999,
the Ombudsman therefore asked the Commission (1)
to
indicate whether it considered that the product concerned had
(or had not) been imported to the EC since 1989 and, if so,
why it had considered that it was not established that these
imports were of Chinese origin, and to comment on the
complainant’s claim that the Eurostat figures (and the figures
of the German Federal Statistical Office) showed that such
imports had in fact taken place, and to produce the Eurostat
figures on which it relied, (2) to comment on the complainant’s
allegation that the variousproducts referred to by the Com-
mission were not manufactured by the Chinese producer but by
another company and (3) to indicate the evidence on which
the Commission had relied to support its conclusion that in
view of the costs involved for switching production to the
product concerned and given the higher rentability of other
products, exports of the product concerned to the EC would
be unlikely.

in the investigation, that the Commission concluded that the
product imported under these 10-digit codes was not the
product covered by the investigation. The complainant had
failed to show otherwise. There was no contradiction in
the Commission’s comments of 23 September 1998. When
referring, on page 5 of these comments, to imports which
were ‘either dumped, in sufficient volumes or at prices that
could be considered to be injurious, or in contravention of the
terms of the undertaking’, the reference was to the figures
which the complainant had claimed were evidence of dumped
imports, not to the Eurostat figures available to the Com-
mission which showed no imports of the product concerned
from China.

The absence of imports had also been confirmed by the
verification visit carried out at the premises of the unrelated
importer referred to at paragraph 5 (c) of
the contested
Decision.

The complainant had submitted statistics from the German
Federal Statistical Office which contained an 11-digit code for
imports from China. The Commission had been unable to
accept these figures since the complainant had failed to show
that the German statistics referred to the relevant product.

The information on the products manufactured by the Chinese
producer and on the costs of switching production had been
in the non-confidential file, had therefore been seen by the
complainant and had not been challenged by the latter.

The complainant’s observations

In its observations, the complainant challenged the arguments
put forward by the Commission. In its view the Commission
ought to have examined all imports to the EU from third
countries. The complainant also asked the Ombudsman to
take personal steps against the Commission officials in charge
of the anti-dumping proceeding since they had failed to
comply with their duties.

In its reply of 27 July 1999, the Commission made the
following statements:

The decision

that

The Commission considered that there had been no imports
of the product concerned since 1989. The customs codes
under which the relevant product fell were ‘ex’ codes, which
meant
these codes did not only cover the product
concerned but included also other products. A more precise
analysis required the use of the Taric codes (official Eurostat
codes used by the Commission in the administration of anti-
dumping measures). On the basis of the 10-digit Taric codes,
it appeared that some minor quantities had been imported
into the Community from China under the relevant codes.
However, these quantities were negligible and could not be
interpreted as evidence of a likelihood of recurrence of material
injury to the Community producer. Furthermore, price and
quantity relationships were so different from those observed

1. Wrong assessment of the facts and wrong interpretation

of submissions

1.1. The complainant claimed that the Commission, when
deciding to allow the anti-dumping duties to expire, had
wrongly assessed the relevant facts. It also claimed that
the Commission had wrongly interpreted or deliberately
ignored evidence or submissions which it had made.
Although the complainant raised two separate allegations
in this respect, the substance of these allegations appeared
to be practically identical. It was thus appropriate to
examine these allegations together.

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C 260/117

1.2. The complainant claimed in particular that the Com-
mission had failed to take into account the fact there had
been imports into the EC from third countries during the
relevant period. It further claimed that the Commission
had also failed to prove its allegation that the Chinese
producer produced several other products and its argu-
ment that a switch to the production of the relevant
product would entail substantial costs for the Chinese
producer and was therefore unlikely.

1.3. The Commission replied that there had been no imports
of the product concerned from China since 1989 and
that it had examined all the evidence available before
coming to the conclusion that the maintaining of the
anti-dumping measures was no longer justified.

1.4. The complainant originally also objected to the Com-
mission’s refusal to extend the scope of the anti-dumping
measures to other products. However, the complainant
did not appear to insist on this point any longer. Even if
it had been otherwise, the Commission’s view that such
an extension would have required a (new) complaint
appeared reasonable.

1.5. It was good administrative practice for the Commission
to take account of all relevant evidence when deciding as
to whether or not to continue anti-dumping measures. In
its contested Decision, the Commission claimed that
there had not been any imports of the product concerned
since 1989. The Commission also claimed that
the
complainant had not produced sufficient evidence to
corroborate its allegation that the anti-dumping measures
had been circumvented by imports transiting through
third countries like Switzerland. Although the Com-
mission also referred to other factors which are not
seriously in dispute between the parties (namely the
decline in demand) in order to support its conclusion that
the anti-dumping measures should not be continued, it is
clear that the absence of imports played an essential role
in this context.

1.6. In order to support its allegation that, contrary to what
the Commission believed, there had indeed been such
imports, the complainant had furnished to the Com-
mission statistics from the German Federal Statistical
Office which showed imports from China. The Com-
mission claimed that these figures were irrelevant since
they referred to another product. However, at first sight
the evidence submitted would appear to confirm that a
product matching the definition of the relevant product
was imported to the EC from China during the relevant
period. The argument put forward by the Commission
thus failed to convince.

1.7. The Commission argued, however, that a more precise
analysis required the use of the so-called Taric codes.
Even if this was correct, the fact remained that the
Eurostat statistics which the Commission had submitted,
further to a request from the Ombudsman, did show
In its reply to the request for
imports from China.
further
the Commission admitted that
information,
imports had taken place but claimed that the ‘price and
quantity relationships’ of these imports had been such
that the product imported under these codes could not
have been the product covered by the investigation.
However, the Commission did not specify what exactly
these ‘price and quantity relationships’ were which it
claimed to have considered here. In addition to that,
the contested Decision did not contain any reference to
such considerations. Finally, and most importantly, the
Commission thus effectively claimed that even these
statistics were not sufficient to ascertain the nature of
the product concerned. However,
the Commission
itself
statistics were used for
the administration of anti-dumping measures. The
Commission had not offered any explanation to try and
resolve this contradiction. In any event,
it had to be
noted that
statistics provided by the
the Eurostat
Commissionappeared to be prima facie evidence of the
fact that the relevant product had been imported to the
EC from China during the relevant period. The argument
put
forward by the Commission therefore failed to
convince.

claimed that

these

1.8. The Commission argued that the quantities concerned
had been ‘minor’ and were considered as ‘negligible’.
The Ombudsman was not in a position to resolve this
issue on the basis of the figures provided. However, it
needed to be pointed out that the said argument was
not to be found anywhere in the contested Decision.
On the contrary, the Decision categorically stated that
there had been ‘no imports’ and that the complainant
had been enjoying a monopoly position in the EC. It
could not be considered to be good administrative
practice to base a decision not on the arguments
mentioned therein but on arguments which were only
disclosed to an interested party when the latter has
lodged a complaint with the Ombudsman. The same
applied to the allegation that the absence of imports
had been confirmed by the verification visit carried out
at the premises of the unrelated importer. This allegation
appeared for
time in the Commission’s
reply to the Ombudsman’s request for further infor-
mation.

the first

complainant

1.9. The statistics from the German Federal Statistical Office
also showed what
provided by the
appeared to be substantial
imports from Switzerland.
In the contested Decision, the Commission claimed that
these imports were irrelevant. There was no evidence
to support this claim. In its opinion on the complaint,
there had been no
the Commission claimed that

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11.9.2000

acceptable demonstration that the alleged imports were
of Chinese origin. This argument did not appear to
have been used in the Decision.

relevant evidence and submissions, could have reached
the same conclusion as it did in its contested Decision.

1.10. Since the evidence relating to these imports had been
submitted to the Commission by the complainant, the
Commission’s allegation that the complainant had failed
to provide essential information was irrelevant in this
context.

1.11. In so far as the complainant’s claim that the Commission
wrongly assumed that the Chinese producer also pro-
duced several other products was concerned, it had to be
pointed out that the brochure of the Chinese producer
submitted by the complainant itself referred to a pro-
duction of other products. In these circumstances the
Ombudsman was of the view that there was not enough
evidence to show that the Commission had made a
mistake when it relied on the fact that the Chinese
producer manufactured a number of products other than
the relevant product.

1.12. Finally, in reply to the complainant’s claim that there
was no evidence to support the claim that a switch to
the production of the relevant product would entail
substantial costs for the Chinese producer and thus
be unlikely, the Commission alleged that the relevant
information had been contained in the non-confidential
file, had thus been accessible to the complainant and had
not been challenged at the time. However, even if the
complainant should have seen the relevant documents
(which it denied), the fact remained that in its letter of
30 March 1998 it had challenged the view of
the
Commission. The argument relied on by the complainant
in this context was not devoid of persuasiveness. How-
ever, the Commission did not appear to have taken this
argument into account when adopting its Decision.

1.13. It was good administrative practice that the Commission
should, when adopting decisions, consider all the rel-
evant facts and arguments. In the present case, the
Commission had failed to take proper account of the
evidence and the complainant’s arguments in so far as
imports from third countries and the costs for the
Chinese producer of switching its production to the
relevant product were concerned. The Ombudsman
concluded that this failure constituted an instance of
maladministration. The Ombudsman wished to add,
however, that this conclusion was without prejudice to
the question as to whether the decision of the Com-
mission was correct in so far as its substance was
concerned. It could of course not be excluded that the
the
Commission, after a proper examination of all

2. Manipulation of evidence

2.1. The complainant alleged that

the Commission had
manipulated the evidence when adopting the contested
Decision.

2.2. The Commission argued that

there was nothing to
suggest that the evidence had been manipulated by the
Commission in order to deliberately engineer an outcome
unfavourable to the complainant.

2.3. The Ombudsman considered that although the Com-
mission had in his view committed a mistake by failing
to take proper account of the evidence and the complain-
ant’s arguments in so far as the two issues referred to
above were concerned, there was no evidence which
would have suggested that the Commission had deliber-
ately manipulated the evidence.

2.4. On the basis of the above, there appeared to have been
no maladministration on the part of the Commission in
so far as the second allegation put forward by the
complainant was concerned. The Ombudsman therefore
considered that there was no need for him to consider the
request by the complainant, in its letter of 20 September
1999, to take steps against the Commission officials in
charge of the anti-dumping proceeding.

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark:

It was good administrative practice that the Commission
should, when adopting decisions, consider all the relevant
facts and arguments. In the present case, the Commission
had failed to take proper account of the evidence and the
complainant’s arguments in so far as imports from third
countries and the costs for the Chinese producer of
switching its production to the relevant product were
concerned. The Ombudsman concluded that this failure
constituted an instance of maladministration.

Given that this aspect of the case concerned a specific event in
the past, it was not appropriate to pursue a friendly settlement
of the matter. The Ombudsman therefore closed the case.

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Official Journal of the European Communities

C 260/119

POSTPONEMENT OF ORAL EXAMINATION IN EXCEPTIONAL
CIRCUMSTANCES

The inquiry

Decision on complaint 687/98/BB against the European Com-
mission

The Commission’s opinion

The complaint

The complainant had participated in Internal Competition
COM/T/A/98. He had passed the two written examinations.
On 27 April 1998 he took the oral examination.

On 2 April 1998, he had sustained an accident which one
week later led to a serious thrombosis in his leg. Thus, the
complainant was not able to work for more than three weeks
up until the day of the oral examination. In order to be able to
participate in the examination he returned to work. He had
not asked for a postponement of the examination date as the
this was not
invitation letter unambiguously stated that
possible. He was under medication on doctor’s orders when
he took part in the oral examination. The medication made
him unusually tired, a state he tried to compensate with
a corresponding consumption of coffee. During the oral
examination he experienced that this had increased his ner-
vousness.

On 15 May 1998, the Selection Board sent the complainant a
letter informing him of the results and explaining that he had
not passed as he had obtained only 88,33 points whereas the
minimum required was 90.

On 25 May 1998, the complainant appealed requesting a
review of his examination results. On 10 June 1998, the
Commission confirmed that his marks corresponded exactly
to those given by the Board. The Commission sympathised
with the complainant’s situation and explained that he could
have contacted the competition secretary to explain his
problem when he returned to work on 14 April 1998 or,
alternatively, he could have spoken with the Members of the
Selection Board at the beginning of the oral examination; this
would have enabled them to take whatever measures they felt
necessary, for example they could have postponed his oral
examination to a later date.

The complaint was forwarded to the Commission.
opinion the Commission made the following points:

In its

The complainant appeared at the oral examination in the
normal way, making no mention of any health problems
either prior to or on the day of the examination.

Only after having been informed of his results did the
complainant inform the Selection Board of his accident and
health problems. The candidate had neither contacted the
secretary responsible for organising the competition, nor
mentioned the matter to the members of the Selection Board
during the oral examination so that steps might have been
taken to rearrange the date of the examination.

The Commission pointed out that it was unable to offer a
candidate the possibility of a second oral examination, nor
could it re-open a procedure once the competition was
finished.

The Commission pointed out that, if informed by candidates,
both the Recruitment Unit and the selection boards take all
possible steps which might be necessary for the correct
running of the oral examinations, if exceptional circumstances
prevent a candidate from attending on the day indicated in the
invitation.

For organisational reasons, it is not possible to include a clause
in the invitations to attend the oral examination which could
allow candidates to alter the date and time of their interview
as they see fit. If this were the case, candidates would be
encouraged to produce all sorts of reasons (family or otherwise,
including, for example, marriage, birth, holidays, etc.) as they
already do, for rearranging the date and time of their interview.

The Commission is of the view that whenever a genuine
problem arises, all possible steps are taken when candidates
give due notice or where a genuine problem is perceived which
was not the case in this matter.

The complainant’s observations

On 23 June 1998,
the complainant wrote again to the
President of the Selection Board. He pointed out that he
only resumed work on 27 April 1998, the day of his oral
examination and that it was only during the oral examination
that he became aware of the abnormal reaction of his body
under stressful conditions.

The complainant maintained his complaint. He stressed that
the letter of invitation stated that it was not possible to alter
the date of the oral examination. If he had known about the
possibility to change the date of his oral examination he would
have asked for it. Furthermore, the Board had assumed that he
had returned to work two weeks earlier than the actual date.

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11.9.2000

According to the complainant, the medical problem first
presented itself during the oral examination and, therefore, he
was not in a position to notify anybody in advance.

The decision

1.4. The Ombudsman’s inquiry indicated that in practice the
Commission is prepared to take all possible measures for
the correct running of the oral examinations, if excep-
tional circumstances prevent a candidate from attending
on the day indicated in the invitation. The Ombudsman
therefore considered that, as a matter of good administrat-
ive behaviour, the Commission should include a clause in
the invitations to the oral examination informing the
candidates of this possibility.

1.

Exceptional circumstances in connection with the oral
examination

2. Refusal to let the candidate retake the oral examination

1.1. The complainant claimed that during the oral examin-
ation of internal competition COM/T/A/98 he was under
medication on doctor’s orders due to a recent accident.

2.1. The complainant who had taken part in the oral examin-
ation although he was under medication on doctor’s
orders, later requested that the Selection Board should
allow him to retake the oral examination after he learned
that he had failed the competition.

It was only during the oral examination that he became
aware of
the abnormal reaction of his body under
medication. He had not asked for a postponement of the
examination date as the invitation letter unambiguously
stated that it was not possible.

2.2. A competition has to be conducted in accordance with
the principle of equal treatment of candidates. Violation
of this principle may lead to the annulment of the
competition. That may entail considerable financial and
administrative costs for the administration.

1.2. In its letter of 10 June 1998 the Commission explained
to the complainant that he could have contacted the
competition secretary or, alternatively, he could have
spoken to the members of the Selection Board at the
beginning of the oral examination as this would have
enabled them to take whatever measures they felt necess-
ary, i.e., postponing his oral examination to a later date.
Furthermore, in its opinion the Commission pointed out
that, if informed by candidates, both the Recruitment
Unit and the selection boards take all possible steps which
might be necessary for the correct running of the oral
examinations,
if exceptional circumstances prevent a
candidate from attending on the day indicated in the
invitation.

2.3. It appeared from the Commission’s opinion that the
Commission considered that it was unable to offer a
candidate the possibility of a second oral examination.
The Ombudsman noted that there were no elements at
hand which indicate that the decision of the Commission
to refuse to let the candidate retake the oral examination
had been taken in violation of any rule or principle
binding upon the Commission.

2.4. Therefore, the Ombudsman found that there was no
instance of maladministration in relation to this aspect of
the case.

1.3. The European Ombudsman noted that the candidate’s

Conclusion

letter of invitation stated the following:

‘Je précise par ailleurs que l’organisation des épreuves ne
permet pas de changer l’horaire qui vous a été indiqué.’

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark:

(‘I insist on the fact that the organisation does not allow
any changes in the timetable communicated to you.’)

However, as has been pointed out in paragraph 1.2 of
this decision, the Commission, both in its letter of 10 June
1998 and in its opinion, expressed its willingness to take
into consideration exceptional circumstances.

The Ombudsman’s inquiry indicated that in practice the
Commission is prepared to take all possible measures for
the correct running of the oral examinations, if excep-
tional circumstances prevent a candidate from attending
on the day indicated in the invitation. The Ombudsman
therefore considered that, as a matter of good administrat-
ive behaviour, the Commission should include a clause in
the invitations to the oral examination informing the
candidates of this possibility.

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Official Journal of the European Communities

C 260/121

Given that this aspect of the case concerned procedures
relating to specific events in the past, it was not appropri-
ate to pursue a friendly settlement of the matter. The
Ombudsman therefore decided to close the case.

— The complainant explained that the Finnish authorities
had confiscated two bottles of 96% vol. alcohol imported
from Estonia which according to him constituted a
violation of Regulation (EEC) NE 918/83;

Note: On 15 December 1999 the Commission informed the
Ombudsman that it is prepared to include a sentence in the
invitations to oral examinations stating that the time and
date of
the examination can be changed in exceptional
circumstances. The candidate must address a written request
to the Unit responsible for recruitment policy and provide all
necessary documents as proof.

UNDUE DELAY IN REPLYING TO CORRESPONDENCE

Decision on complaint 723/98/BB against the European Com-
mission

— The Commission sent a letter on 20 January 1998
informing the complainant that the appropriate depart-
ment to deal with the matter was DG VI Unit E.2;

— On 27 April 1998, the complainant wrote to DG VI
requesting an intervention by the Commission before the
Finnish authorities. This request was repeated in a letter
sent on 4 June 1998 in which the complainant expressed
his intention to complain to the European Ombudsman
unless he received comprehensive information on how
the Commission has dealt with the matter;

The complaint

In July 1998, Mr W. made a complaint to the Ombudsman
concerning the alleged lack or refusal of information, undue
delay and negligence in replying to correspondence he had
sent to the European Commission.

On 28 November 1997, the complainant had written to the
Commission complaining that the Finnish authorities had
violated Regulation (EEC) NE 918/83 and that the Finnish
customs officials had violated the Finnish Alcohol Law 306/97
by confiscating two bottles of 96 % ethyl alcohol on entry to
the Community. On 20 January 1998,
the Commission
DG XXI informed him that his letter had been forwarded to
DG VI to be dealt with by the appropriate department. In
this letter the Commission indicated that for any further
information the complainant could contact the Head of Unit
E.2 (DG VI).

— Regulation (EEC) NE 918/83 does not confer an uncon-
ditional right to import the goods in question free of
duty. Relief from duty applies only to products that can
be legitimately imported, and a Member State can prohibit
or restrict the importation of certain products for reasons
such as protection of consumer health;

— No common market organisation of alcohol exists on the

Community level;

— On 12 February 1998, the Finnish Government asked the
Commission to include in the EC legislation a provision
to confirm that the maximum alcohol content for spirit
drinks should be 80 %; the matter has been discussed at
the Implementation Committee for Spirit Drinks and the
discussions are continuing;

On 27 April 1998, the complainant sent a letter to the Head
of Unit E.2 requesting the Commission to intervene with the
Finnish authorities. This request was repeated in a letter
of 4 June 1998. The Commission did not reply to this
correspondence.

— The matter raised by the complainant also had a connec-
tion with the wider question of the future of the alcohol
monopoly in Finland, which is under detailed scrutiny by
the Commission;

The inquiry

The Commission’s opinion

— The Commission regretted that the complainant had not
received a reply sooner, as his complaint concerned
matters under discussion and, therefore, the Commission
did not have the necessary elements for a definitive
answer;

In its
The complaint was forwarded to the Commission.
opinion, the Commission made, in summary, the following
points:

— The Commission promised to send a letter to the
complainant without delay and copy it to the European
Ombudsman for information.

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The complainant’s observations

Conclusion

The complainant maintained his complaint, stating that until
19 November 1998 he had not received any reply from the
Commission and that therefore the Commission had not
followed the principles of good administration.

Further inquiries

The Commission had sent the reply to the complainant on
30 November 1998. The complainant acknowledged later that
he had received this reply.

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark:

Principles of good administrative behaviour require that
complainants who write to the Commission receive a
reply within a reasonable time. Therefore, the fact that
the Commission only replied on 30 November 1998 to
the complainant’s correspondence of 28 November 1997
constituted an instance of maladministration.

Given that this aspect of the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore decided to close the case.

It needs to be mentioned that in its reply to the complainant
the Commission did not apologise for the undue delay.

Further remarks

The decision

Undue delay in replying to correspondence

1.

The complainant alleged that the Commission failed to
reply to his letter of 28 November 1997 in which he
complained about breaches of Community law by the
Finnish authorities, as well as to the reminders he sent to
DG VI on 27 April 1998 and 4 June 1998.

2. On 20 January 1998,

the Commission had sent an
acknowledgement letter to the complainant informing
him that his letter had been forwarded to be dealt with
by the appropriate department DG VI — Unit E.2. In its
opinion the Commission claimed that the subject matter
raised in the complainant’s correspondence was being
discussed and that the Commission did not have the
necessary elements for a definitive answer. Therefore,
the Commission had not replied to the complainant’s
correspondence.

3.

4.

Principles of good administrative behaviour require that
complainants who write to the Commission receive a
reply within a reasonable time.

It was only on 30 November 1998, after the Ombudsman
had requested an opinion from the Commission that
DG VI replied in substance to the complainant’s letter
sent on 28 November 1997. This could not be considered
a reasonable time period for replying to correspondence.
Therefore, the fact that the Commission only replied on
30 November 1998 to the complainant’s correspondence
of 28 November 1997 constituted an instance of malad-
ministration.

The Commission explained in its opinion that it did not have
the necessary elements in order to give a definitive answer to
the complainant. This however, cannot constitute a reason for
the Commission for failing to answer correspondence in due
time.

OPEN COMPETITION ORGANISED BY THE EUROPEAN COM-
MISSION: THE SELECTION BOARD REFUSED TO GIVE ACCESS
TO CANDIDATE’S MARKED PAPERS

Decision on complaint 1239/98/IP against the European Com-
mission

The complaint

In November 1998, the complainant, who had participated in
open competition COM/A/1049 for the constitution of a
reserve list of principal administrators in the financial manage-
ment and audit sectors, lodged a complaint with the European
Ombudsman. The complaint concerned the refusal of the
Selection Board of the competition to provide him with
detailed information about the corrections made in his written
tests, and the refusal of the Commission to give him a copy of
his own marked papers.

In July 1998, the Chairman of the Selection Board informed
the complainant that his score for the tests (b), (c) and (d) had
been 14,748. Since the minimum required was 15, he was
informed that the remaining three tests (e), (f) and (g) would
not be corrected. The complainant wrote to the Selection
Board and asked for the re-examination of his tests on the
grounds that
the difference between the score obtained
and the minimum required was only 0,252 points. He also
requested more information on the criteria used by the Board
for its evaluation of the tests, as well as a copy of his own
marked papers.

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The Selection Board replied that, having compared the marks
given to him with the corrections made by the evaluators,
there was no discrepancy. As for the complainant’s demand to
have access to his marked tests, the Selection Board rejected
the request based on the confidentiality of its work.

the competition, answers were rated +1 in case of the correct
answer,
‘0’ in case of no answer or answer annulled, and
-0,333 in case of a wrong answer.

Mr R. thus lodged a complaint with the Ombudsman, in which
he claimed the following:

As for the second, third and fourth pre-selection test, answers
were rated 0,333, 0,357 and 0,143 espectively for a right
answer; -0,111, -0,119 and -0,048 for a wrong answer, and ‘0’
in case of no answer or answer annulled.

(1)

in his opinion the Commission only verified the
correspondence between the marks given by the
evaluators and those communicated to him, instead
of re-examining the content of his tests;

In the light of these criteria, the institution summarised the
different scores obtained by the complainant in his tests, on
the basis of his correct and wrong answers, as well as the
questions with no response or those annulled.

(2)

the Commission did not provide him with more
information on the evaluation criteria;

(3)

the Commission breached the Code of Conduct
annex to the Commission decision on public access
to Commission documents (94/90/ECSC, EC, Eura-
tom) by not giving him access to his marked tests.

The inquiry

The Commission’s opinion

As regards the corrections in the complainant’s tests, the
Commission stated that following a manual check, the Selec-
tion Board confirmed that no error had taken place. The
complainant only reached 14,748 points in tests (b), (c) and
(d). Not having met the minimum required, he was excluded
from the competition and informed of the results by letter of
the Chairman of the Selection Board. As set out in point VII.B
of the notice of competition, ‘pre-selection tests (a), (b), (c) and
(d) will be marked first. Tests (e), (f) and (g) will be marked
only in the case of the 100 candidates with the highest
aggregate marks in tests (a), (b), (c) and (d); they must have
obtained the requisite pass marks’.

The Commission informed of the marks obtained in each test
and how they had been calculated, as well as the evaluation
criteria followed by the Selection Board. It also explained in
detail the score system used in the different tests.

As regards the first pre-selection test which included a series
of multiple-choice questions relating to the areas covered by

In relation to the institution’s refusal to give access to the
marked papers, the Commission reiterated its position, and
justified the refusal on the grounds of the confidentiality of the
work of the Selection Board as set out in article 6 of Annex III
of the Staff Regulation.

The complainant’s observations

In his observations on the Commission’s opinion, the com-
plainant pointed out the following:

As regards the request for the re-examination of his tests, the
complainant underlined that the Selection Board had only
checked the correspondence between the marks given by the
evaluators and those which had been communicated to him,
instead of carrying out a new correction of his tests.

Concerning the request to be informed on the evaluation
criteria used by the Selection Board in the correction of the
tests, the complainant welcomed the explanations given by the
Commission. However, he added that the marks given by the
Selection Board for right, wrong and annulled/no reply answers
did not correspond with the information supplied to the
candidates in the course of the tests.
In support of this
allegation, the complainant referred to the ‘Guide to candidates’
distributed on the day of the exam.

Prior to each test, candidates were provided with a booklet
containing practical information (reference of the competition;
contents of the tests, time allowed, scoring system for the
answers) and the relevant questions. The cover page of each
booklet indicated the scoring system for each type of answer:
+1 for a right answer, -0,333 for a wrong answer, and ‘0’ for
no answer or a cancelled one. The value given to each type of
answers appeared then in contradiction with the information
submitted by the Commission in its opinion.

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The complainant also contested the Commission’s point of
view as regards the refusal to allow him access to his own
marked papers because of the secrecy of the Selection Board’s
work. He agreed with the Commission that the work of the
Selection Board be considered secret in the course of the
corrections with a view to guaranteeing the independence and
objectivity of its proceedings. By contrast, once the corrections
have been made, there should not be any reason to refuse
candidates access to their own marked papers.

Regarding the criteria followed by the Selection Board for the
correction of the tests, the institution replied that because
the correction had been made by an optical reader, the
complainant’s grievance on this point was not grounded.

Finally, as regards the access to the marked papers, the
Commission maintained its original position.

The complainant alleged that the Commission had not assured
the necessary transparency of its recruitment procedure, in
breach of the Code of Conduct on public access to Commission
documents. In his view, the marked paper of a candidate in an
open competition does not fall under any of the exceptions
provided for in the Code’s general principle of ‘widest possible
access to documents held by the Commission’.

Finally, the complainant also stressed that in the letter of the
Selection Board where it denied the access to a copy of his
marked papers, there was no mention of any potential means
to appeal against the Selection Board’s negative decision. The
Code, however, explicitly indicates that a decision of the
Commission refusing access to certain documents ‘must
indicate the means of redress that are available, i.e. judicial
proceedings and complaints to the Ombudsman […]’.

Further inquiries

The Ombudsman asked the Commission for a second opinion
on the complaint, by letter of 5 July 1999. The purpose of this
letter was to give the European Commission the opportunity
to comment on the complainant’s grievance that the decision
refusing him access his marked papers did not refer to the
means of redress available, in breach of the Code of conduct
annex to the Decision on public access. The Ombudsman also
asked the Commission to give its opinion on the alleged
discrepancy between the criteria followed by the Selection
Board for the correction of the tests and the information
supplied to candidates prior to each test.

The Commission’s second opinion

The decision

1. Re-assessment of the complainant’s tests

1.1. The complainant asked the Selection Board to re-examine
his tests since there had been a minor difference between
the threshold required to pass the first tests and the score
he had been given.

1.2. The Commission stated in its opinion that in reply to this
request, a second manual check of the complainant’s
papers had been carried out. The results of this second
assessment showed that no error had occurred in the
determination of the marks attributed to the complainant.

1.3. As established by Community case-law, in assessing the
results of tests, Selection Boards enjoy a wide discretion,
which can only be reviewed to ascertain whether its
exercise has been vitiated by a manifest error or by a
misuse of powers, or whether the Selection Board has
manifestly exceeded the limits of its discretion (1).

In view of the information submitted by the complainant,
the Ombudsman found no evidence which might ques-
tion the judgements made by the Selection Board. The
Ombudsman therefore concluded that
the Selection
Board had acted within the limits of its legal authority.
There appeared to be no instance of maladministration
as regards this aspect of the case.

2. Criteria used by the Selection Board for the selection of

candidates

2.1. The Commission spelled out in its opinion the criteria
used by the Selection Board for the evaluation of the
tests. These criteria referred generally to the scoring
methods applied to each type of reply (right/wrong
answers, no answer/annulled) in every test.

2.2. Having compared these values with the score system
referred to in the booklet distributed to all candidates
prior to each test (‘Guide to candidates’), the complainant
noted that those criteria did not correspond.

As concerns the first point, the Commission simply replied
that candidates who participate in an open competition are
entitled, as all Union’s citizens, to complain to the Ombudsman
or to the judicial authorities against the decision to refuse them
access to certain documents.

(1) See case T-46/93, Fotini Michäel-Chiou v. Commission [1994] ECR-
SC II-929; par. 48; case 40/86, Georges Kolivas v. Commission
[1987] ECR 2643; par. 11.

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2.3. Thus, the cover page of these booklets indicated that in
the four tests the score system would be: +1 in case of a
right answer, ‘0’ in case of no answer or cancelled answer
and -0,333 in case of wrong answer.

the tests.

By contrast, the Commission described in its opinion a
different score system for each one of
It
appeared that only for the first tests answers had been
rated +1 in case of right answer, ‘0’ in case of no answer
or cancelled answer and -0,333 in case of wrong answer.
As concerned the second, third and fourth pre-selection
tests, answers had been rated 0,333, 0,357 and 0,143 for
right answers; -0,111, -0,119 and -0,048 for wrong
answers and ‘0’ in case of no answer or cancelled answer.

2.4. The essential function of the Guide distributed to candi-
dates in the course of a competition was to give candidates
accurate information about the content of the tests and
their score. In the light of this information, candidates
might decide beforehand how to handle the different tests
and whether or not to reply to individual questions.

2.5. Principles of good administration require that the Insti-
tution gives clear and accurate information to the citizens.

This was not the case as regards the Guide distributed to
candidates before the beginning of open competition
COM/A/1049, since the information on the marking of
tests contained therein did not correspond with the
criteria used by the Selection Board in the marking of the
first pre-selection tests. Candidates might have been
confused by the information given to them before the
exams regarding the real value to be attributed to each
answer of the test.

2.6. In order to better clarify this aspect of the case, the
Ombudsman requested a further opinion to the Com-
mission. In its reply the institution only mentioned that
because the correction had been made by an optical
reader, the complainant’s claim was not grounded. The
Ombudsman considered, therefore, that the Commission
had not properly replied to the point raised by the
complainant.

3. Access to the complainant’s exam papers

3.1. One of the complainant’s claims regarded the Selection
Board’s refusal to allow him access to a marked copy of
his papers.

3.2. The substantive question of access to marked papers, had
been the subject of an own initiative inquiry launched by
the European Ombudsman into the secrecy which forms
part of the recruitment procedures of the Commission
(own initiative 1004/97/PD) (1). As a result of this inquiry,
the Ombudsman prepared a special report on the matter
that was sent to the European Parliament on 18 October
1999.

3.3. The Ombudsman therefore considered that it was not
necessary to pursue the inquiry into this aspect of the
case and informed the complainant of the outcome of
this procedure.

4. Alleged breach of the Code of conduct on public access

to Commission and Council documents

4.1. The complainant claimed that the decision refusing him
access to his marked papers did not refer to the means
of redress available, namely judicial proceedings and
complaints to the European Ombudsman, as laid out in
the section on Processing of Confirmatory Application in
the Code of Conduct on public access to Commission
and Council documents.

4.2. This allegation was not part of the original complaint,
forward in the complainant’s observations.
but put
Furthermore, it was linked to the right to have access
to the marked papers or not, which was still under
investigation (point 3 of the decision).

4.3. The Ombudsman therefore considered that it was not
necessary to deal with this aspect of the case in this
context.

Conclusion

On the basis of the European Ombudsman’s inquiries into the
second part of this complaint, the Ombudsman considered it
necessary to make the following critical remarks:

Both the Commission’s failure to provide candidates with
clear and unambiguous information on the content of
the tests and their score, and the fact that the institution
did not provide a precise answer to the points raised by
the complainant in his complaint, constituted therefore
an instance of maladministration.

(1) As a result of the inquiry launched on this matter, the Ombudsman
recommended that the Commission give applicants access to their
own marked papers upon request.

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Principles of good administration require that the infor-
mation that the administration provides to citizens be
clear and accurate. More so, in the case of information
distributed in the course of an open competition, which
may be, for many citizens, their first encounter with the
Community administration.

This was not the case as regards the Guide distributed to
candidates before the beginning of open competition
COM/A/1049, since the information on the marking of
tests contained therein did not correspond with the
criteria used by the Selection Board in the marking of the
first pre-selection tests. Candidates might have been
confused by the information given to them before the
exams regarding the real value to be attributed to each
answer of the test.

In order to better clarify this aspect of the case, the
Ombudsman requested a further opinion to the Com-
mission. In its reply the institution only mentioned that
because the correction had been made by an optical
reader, the complainant’s claim was not grounded. The
Ombudsman considered, therefore, that the Commission
did not properly reply to the point raised by the
complainant.

Both the Commission’s failure to provide candidates with
clear and unambiguous information on the content of
the tests and their score and the fact that the institution
did not provide a precise answer to the points raised by
the complainant in his complaint, constituted therefore
an instance of maladministration.

Given that these aspects of the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore decided to close the case.

Further remarks

In its second opinion the Commission refrained from address-
ing the complainant’s comments and the precise question that
the Ombudsman asked the institution in his letter of 5 July
1999.

that as he had stated in
The Ombudsman pointed out
the decision,
this was an instance of maladministration.
Furthermore, he would like to underline that, if this unfruitful
attitude becomes a general rule in the performance of the
newly installed Commission,
it would rapidly destroy the
achievements of a fruitful and constructive co-operation in his
dealing with complaints and make the Ombudsman’s task of
enhancing the relations between the European citizens and the
Community institutions and bodies impossible.

3.6. DRAFT RECOMMENDATIONS BY THE OMBUDSMAN

3.6.1. ALL INSTITUTIONS, BODIES AND DECENTRALISED

AGENCIES

DECISION CONTAINING DRAFT RECOMMENDATIONS TO
ADOPT A CODE OF GOOD ADMINISTRATIVE BEHAVIOUR

Decision in the own initiative inquiry OI/1/98/OV (Draft Rec-
ommendations)

The reasons for the inquiry

On 11 November 1998 the Ombudsman started an own
initiative inquiry into the existence and the public accessibility,
in the different Community institutions and bodies, of a Code
of Conduct on good administrative behaviour of the officials
in their relations with the public.

One of the reasons for this own initiative inquiry was that
during his time in office, the Ombudsman received numerous
complaints which brought
to his attention instances of
maladministration which could have been avoided if clear
information had been available about the administrative duties
of Community staff towards the citizens.

the Ombudsman’s office was meant

The more general reason was that part of the Ombudsman’s
mission is to enhance relations between the European citizens
and the Community institutions and bodies. The creation
of
to underline the
commitment of the Union to democratic, transparent and
accountable administration. The Ombudsman should promote
good administrative practices by improving the quality of
administration.

The Ombudsman therefore observed in his own-initiative
inquiry that, in order to improve the quality of the Community
administration, Codes of Conduct on good administrative
behaviour could play a valuable role. Such codes would be
very helpful
for the staff when they have to deal with
requests/complaints from citizens. The Code would inform
them in a detailed manner of which rules to respect in dealing
with the citizens who contact their institution. If the codes are
made easily accessible to the public, for instance in the form
of a decision published in the Official Journal, they would
provide the citizens with information on what are their rights
and which standards of good administration they may expect
from the Community institutions and bodies.

The European Parliament has welcomed very positively (1) the
idea of such a Code for the European institutions and bodies
and has stressed ‘the importance for such a Code to be, for

(1) See the Resolution of 16 July 1998 on the Annual Report on the
activities of the European Ombudsman in 1997 (C4-0270/98).

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reasons of public accessibility and understanding, as identical
as possible for all European institutions and bodies’.

The inquiry

On the basis of these considerations, and in accordance with
Article 3.1 of the Regulations and the general conditions
governing the performance of the Ombudsman’s duties, the
Ombudsman started an own initiative inquiry which was
addressed to eighteen Community institutions and bodies (four
Community institutions in the sense of Article 4 of the Treaty,
four bodies established by the Treaty, and ten ‘decentralised
Community agencies’) (1). The inquiry had the following
subject:

Firstly, the Ombudsman asked the institution or body if it had
adopted a Code of good administrative behaviour for its
officials in their relations with the public, which is easily
accessible to the citizens. If such a Code did not exist, the
Ombudsman asked if the institution or body would agree to
take the necessary steps in order to adopt a Code of Conduct.
As to the contents of this Code, he observed that it could
include, in a list of provisions, general applicable rules on the
substantive and procedural principles which were set out in
the annex to his letter of 11 November 1998.

Secondly, considering that such a code would be most effective
if it was a publicly accessible document containing precise
provisions, the Ombudsman equally asked the institution or
body if it could indicate in which form it would adopt the
Code.

The Commission’s opinion

On 10 February 1999, the Secretary General of the Com-
mission sent to the Ombudsman, as well as to the Secretaries
General of the Parliament and the Council, a copy of the draft
‘Code of Conduct applicable at the European Commission’
which would be submitted to the Commission on 10 March
1999. The letter to the Secretaries General indicated that the
adoption of
this Code by the Commission and the
implementing measures were also meant to give effect to the
initiative of the Ombudsman.

(1) The European Parliament, the Council of the European Union, the
European Commission, the Court of Auditors, the Economic and
Social Committee, the Committee of the Regions, the European
Investment Bank, the European Central Bank, the European Centre
for the Development of Vocational Training (CEDEFOP), the
European Foundation for the improvement of Living and Working
Conditions, the European Environment Agency, the European
Agency for the Evaluation of Medicinal Products (EMEA), the
Office for Harmonisation in the Internal Market, the European
Training Foundation, the European Drugs and Drug Addiction
Monitoring Centre, the Translation Centre for bodies of the
European Union, the European Agency for Safety and Health at
Work, and the Community Plant Variety Office.

The draft Code contained five sections: a) basic values, b)
rights, c) obligations, d) professional qualities to be fostered
and e) serving the public. The Ombudsman made observations
on the draft Code on 23 February and 9 March 1999. This
draft was also the subject of a meeting on 2 March 1999
between the Secretaries General of the Parliament, the Council,
the Commission and the Ombudsman.

The last section of the draft Code entitled ‘Serving the public’,
which corresponded to the subject of the own initiative
the substantive and
inquiry,
procedural principles which were suggested in the annex to
the letter of the Ombudsman of 11 November 1998.

took into account most of

On 11 March 1999, the Secretary General of the Commission
informed the Ombudsman of three Codes of Conduct, con-
cerning respectively the Commissioners, the relations between
the Commissioners and the Commission departments, and the
draft Code of Conduct for staff of the European Commission.
The Ombudsman was informed that the two first Codes had
been adopted by the Commission on 9 March 1999. However,
as regards the Code of Conduct for staff of the European
Commission, the Commission informed the Ombudsman that
it was still a draft which had to be further discussed through
consultations with staff representatives and the other European
institutions, after which it would be formally adopted by the
Commission.

Finally, on 19 April 1999, Mr Ebermann, Director in the
Secretariat General, informed the Ombudsman that, unfortu-
nately, in the present circumstances no formal follow-up to
the draft Code of Conduct was possible for the time being, but
that the Commission services hoped to be able to finalise the
Code quickly once the new Commission was in place.

The Parliament’s opinion

the President of

the
In his reply of 12 February 1999,
Parliament welcomed the initiative and indicated that the
Parliament had already started the examination of the matter
of a Code of good administrative behaviour. He observed that
the question had been on the agenda of the meeting between
the Secretary General and the Directors General of 8 January
1999. He indicated that, according to the progression of the
work, the Bureau of the Parliament would be seized of a draft
Code of good administrative behaviour which would be
transmitted to the Ombudsman. Since 12 February 1999, no
draft Code has been received from the Parliament.

The Council’s opinion

In his reply of 30 March 1999, the Secretary General of the
Council referred to the meeting of 2 March 1999 between
the Secretaries General of the Parliament, the Council, the
Commission and the Ombudsman, in which he had indicated
the measures proposed by the Ombudsman would
that

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undoubtedly contribute to bring the citizens closer to the
Community institutions. The Secretary General also observed
that a Code should be adopted in the form of a Council
decision rather than in the form of a decision of the Secretary
General. He stated that he had given instruction to the
Council’s services to examine the question in the light of the
specific circumstances of the Council and of the initiatives
taken by the other Community institutions. The Secretary
General finally indicated that he would keep the Ombudsman
informed about the follow-up given to this matter. Since
30 March 1999, no new information has been received from
the Council.

Nine of the ten decentralised Community agencies welcomed
positively the Ombudsman’s proposal and expressed their
intention to adopt a Code of good administrative behaviour,
which should be approved by their respective Governing/Man-
agement Boards. On behalf of all the decentralised agencies,
the Director of Cedefop, in his capacity of President of the group
of agency directors/presidents, informed the Ombudsman on
26 February 1999 that an inter-agency working group had
been set up to examine the matter and that the various
decentralised agencies would adopt a concerted approach,
based on the Commission’s draft Code of conduct which
should guide the code of conduct
for the agencies. The
Ombudsman would be kept informed of the progress.

The opinions from the other Community institutions, bodies
and decentralised agencies

The Court of Auditors informed the Ombudsman on 24 Nov-
ember 1998 that it envisaged the elaboration of a Code in the
future which should be precise and accessible to the public.

Both the Economic and Social Committee and the Committee of
the Regions welcomed, respectively on 6 January 1999 and
4 December 1998, the Ombudsman’s proposal and indicated
that they were prepared to take the necessary steps in order to
adopt a Code of good administrative behaviour. The Committee
of the Regions indicated that the Code would be adopted in the
form of a decision of its Bureau. Both Committees stressed
also the importance of the Code to be common to all European
institutions and bodies.

The European Investment Bank informed the Ombudsman on
2 December 1998 that a Code of Conduct applicable at the
EIB had already been adopted in April 1997 and enclosed a
copy of this Code. The Code had been formally approved by
the Management Committee of the Bank and is complementary
to the Staff Regulations. The Bank informed the Ombudsman
that the Chapter 2 of the Code, ‘External Relations’, contains
the principles of good administrative behaviour for the staff in
their relations with the public, and that the legal department
of the Bank would examine the possibility of giving greater
publicity to this part of the document.

The European Central Bank informed the Ombudsman on
4 February 1999 that it has few administrative relations with
the general public, given that its contacts are primarily with
central banks, the financial industry, governmental bodies and
suppliers of goods and services. The Bank however observed
that, for its dealings with the citizens, it would consider the
adoption of a Code of good administrative behaviour as soon
as circumstances allowed it and inform the Ombudsman of
the steps taken.

On 2 December 1998, the Office for Harmonisation in the
Internal Market (OHIM) indicated to the Ombudsman that,
given its special activity of intellectual property, it functions
not as a common administration but rather like a private
company which has to satisfy at its utmost its clients. The
OHIM therefore described in detail the numerous procedural
and substantial guarantees (contained in various Commission
and Council Regulations) it offers for those who deposit a
Community trademark. For this reason the OHIM indicated
that, at this stage, it already complied with the substantial and
procedural principles contained in the Ombudsman’s proposal
for a Code of good administrative behaviour (such as the
acknowledgement of receipt within 15 days, a direct contact
with the responsible official, the rights of the defence, the
obligation to state reasons for decisions, an appeal procedure,
an information service and a complaint coordination unit).

Evaluation of the present situation as regards a Code of good
administrative behaviour

On the basis of the information obtained from the different
Community institutions, bodies and decentralised agencies, it
appears that, for the moment, none of them has adopted a
Code of good administrative behaviour as proposed by the
Ombudsman.

The Commission has started to elaborate a draft Code of
Conduct for staff of the European Commission, section 5 of
which deals with the relations of the Commission officials
with the public. The Ombudsman was however informed that
this Code had not yet been adopted and that in the given
circumstances no formal follow-up to the draft Code was
possible.

The Parliament, the Council, the Court of Auditors, the Economic
and Social Committee, the Committee of the Regions and the
European Central Bank agreed to but have not yet adopted a
Code of good administrative behaviour for their officials in
their relations with the public.

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On the other hand, the European Investment Bank has already in
April 1997 adopted a detailed Code of Conduct applicable
it appears that this Code, which is
at the EIB. However,
complementary to the Staff Regulations, mainly concerns the
relations of the staff of the EIB with the institution itself and
that even Chapter 2 entitled ‘External Relations’ does not really
contain provisions which effectively deal with relations with
the citizens.

It further appears that nine of the ten decentralised agencies
agreed to take the necessary steps in order to adopt a Code of
good administrative behaviour, but are still waiting for the
Commission’s Code to be definitively approved in order to
adopt, in a concerted manner, similar Codes.

2.

3.

Finally, from its reply it appears that the Office for Harmonisation
in the Internal Market already complies with most of the
substantial and procedural principles contained in the
Ombudsman’s proposal for a Code of good administrative
behaviour. However, those guarantees do not concern all
relations with the citizens, but are limited to the Community
trademark procedure.

Draft Recommendations already made to the Commission,
the Parliament and the Council

In March and April 1999 the Ombudsman was informed that
the Commission’s Code of Conduct had not been adopted
and that no formal follow-up was possible in the given
circumstances. Therefore, and given also that the decentralised
agencies in particular are waiting for the Commission’s
Code to be adopted in order to approve similar Codes, the
Ombudsman made the present draft recommendations to the
Commission already on 28 July 1999. On 29 July 1999, the
same draft recommendations were also addressed to the
Parliament and the Council. The three institutions were
requested to send their opinion by no later than 30 November
1999.

The decision

The necessity of a Code of good administrative behaviour for
the Community officials in their relations with the public

1. During his mandate the Ombudsman received numerous
complaints which brought to his attention instances of
maladministration by the different Community insti-
tutions and bodies. These have been reported in the
Ombudsman’s annual reports. The Ombudsman con-
sidered that many of these instances of maladministration
could have been avoided if clear information had been
available, in the form of a Code of good administrative
behaviour, about the administrative duties of the Com-
munity staff towards the citizens.

Part of the Ombudsman’s mission is to enhance relations
between the Community institutions and bodies and
European citizens. The creation of the Ombudsman’s
office was meant to underline the commitment of the
Union to democratic, transparent and accountable forms
of administration. The Ombudsman should in particular
help to secure the position of citizens by promoting good
administrative practices and improving the quality of
administration.

(Article 1 of

The Ombudsman noted that
the Amsterdam Treaty
explicitly introduced the concept of openness into the
Treaty on European Union, by stating that ‘This Treaty
marks a new stage in the process of creating an ever
closer union among the people of Europe,
in which
decisions are taken as openly as possible and as closely as
possible to the citizen’
the Treaty on
European Union). With regard to this, the Ombudsman
in order to bring the administration
considered that,
closer to the citizens and to guarantee a better quality of
administration, a Code which contains the basic principles
of good administrative behaviour for officials when
dealing with the public was necessary. Such a Code is
useful for both the Community officials, as it informs
them in a detailed manner of the rules they have to follow
when dealing with the public, and the citizens, as it can
provide them with information on which principles apply
in the Community administration and on the standard of
conduct which they are entitled to expect in dealings with
the Community administration.

4. A Code of good administrative behaviour can only be
efficient if it is a publicly accessible document for the
citizens. Therefore it is appropriate that it is published in
the form of a decision, as has been the case for the Code
of Conduct concerning public access to Commission
documents, contained in the Commission decision
(94/90/ECSC, EC, Euratom) of 8 February 1994(1). Also,
in order to be understandable and not confusing for the
public, such a Code should be a unique document which
contains rules exclusively on the relations of the officials
with the public, and not on the relations of the officials
with their institution (rights and obligations, explanation
of provisions of the Staff Regulations), as in the draft
Code of Conduct for staff of the European Commission.

5.

The Ombudsman further noted that, in its Resolutions
on the Annual Report on the activities of the European

(1) OJ 1994 L 46/58.

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Ombudsman in 1997 and 1998 (1), the European Parlia-
ment stressed the urgent need to draw up as soon as
possible a Code of good administrative behaviour, and
the importance for such a Code to be, for reasons of
public accessibility and understanding, as identical as
possible for all European institutions and bodies. The
Parliament equally indicated that such a Code should be
accessible to all European citizens, and be published in
the Official Journal.

the officials with the public. If the institution or body also
intends to adopt rules concerning the relations of officials
with the institution, it could do so in a separate, publicly
available, document.

3.

In order to be efficient and accessible to the citizens, the
rules should be adopted in the form of a decision and be
published in the Official Journal.

6. On the basis of the information supplied to the Ombuds-
man by the different Community institutions, bodies and
decentralised agencies, it appeared that none of them had
adopted a Code of good administrative behaviour as
proposed by the Ombudsman.

Conclusion

On the basis of the above considerations, the Ombudsman
concluded that during his mandate various instances of
maladministration by the different Community institutions
and bodies have been found. One of the reasons for these
instances of maladministration is that no clear rules exist on
the principles of good administrative behaviour which the
Community officials should respect in their relations with the
public. Therefore, in order to prevent the recurrence of similar
instances of maladministration in the future, the Community
institutions and bodies should adopt a Code of good adminis-
trative behaviour for their officials in their relations with the
public. Such a Code can only be efficient if it is a publicly
accessible document
for citizens. Therefore it should be
adopted in the form of a decision published in the Official
Journal.

Draft Recommendations

In view of the above, the European Ombudsman made, in
accordance with Article 3(6) of the Statute of the Ombudsman,
the following draft recommendations to the different Com-
munity institutions, bodies and decentralised agencies:

1.

The institution or body should adopt rules concerning
good administrative behaviour of its officials in their
relations with the public. For adopting these rules,
the institution or body might take guidance from the
provisions contained in the annexed Code of good
administrative behaviour.

2.

In order to ensure that they can be easily understood by
citizens, the rules should deal only with the relations of

(1) Resolution of 16 July 1998 on the Annual Report on the activities
of the European Ombudsman in 1997 (C4-0270/98), OJ 1998
C 292/168. Resolution of 15 April 1999 on the Annual Report
on the activities of the European Ombudsman in 1998 (C4-
138/99), OJ 1999 C 219/456.

The institutions, bodies and decentralised agencies were infor-
med of these draft recommendations and were requested, in
accordance with Article 3 (6) of the Statute of the Ombudsman,
to send a detailed opinion within three months. In the present
case, the opinion had to be sent by no later than 31 December
1999.

3.6.2. THE EUROPEAN PARLIAMENT

UNDUE DELAY AND FAILURE TO REPLY TO APPLICANTS IN A
DESIGN COMPETITION

Draft recommendation in the joined complaints 507/98/OV (Confi-
dential), 515/98/OV, 576/98/OV and 818/98/OV against the
European Parliament

The complaints

In May and July 1998 X made a complaint (507/98/OV) to
the European Ombudsman concerning an alleged failure of
information by the European Parliament with regard to the
design competition (ref. 96/S 195-116670) for works in the
Espace Léopold of the European Parliament in Brussels. In May
1998 (515/98/OV), June 1998 (576/98/OV) and April 1998
(818/98/OV) respectively, other persons have lodged similar
complaints. The Ombudsman therefore decided to join the
four complaints for the purpose of his inquiry.

According to the complainants, the relevant facts were as
follows: The four complainants had sent an application for the
design competition (ref. 96/S 195-116670)
for the VIP
entrance to the D1 building and the refurbishing of the
entrance between D3 and D1 of the Espace Léopold of
the European Parliament in Brussels. This competition was
published in the Official Journal S. 195/39 of 8 October 1996.
After a first evaluation of all the applications, the Selection
Board of the design competition selected 15 architects/desig-
ners (amongst which the complainants) who were requested
to submit their projects before the deadline of 15 January
1997. However, after that date the complainants received no
further information with regard to the outcome of their
applications. In three of the four cases, the complainants wrote
different letters to the Parliament, explaining that they had

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carried out a considerable amount of work and incurred
expenses for their applications, but received no reply. For
instance, the complainant in case 507/98/OV wrote to the
Parliament on 16 March, 8 September and 18 November
1997, explicitly asking for information on the outcome of his
application, but received no reply.

changed the timetable for the competition and that it had in
general not run a fair and reasonable competition. The
complainants believed that the Parliament, after holding the
competition, decided that no services were required and
excluded most of the applications on minor technicalities or
design details in order to avoid awarding prizes.

The Ombudsman was later also informed by two of the
complainants that it was only on 17 June 1998, i.e. 17 months
after the application deadline, that the Director General of the
Parliament’s Administration informed the complainants of the
Selection Board’s final decision not to chose any of the 6
projects (selected from the 15 applications by the Advising
Committee) for the designation of a laureate.

Therefore, the complainants wrote to the Ombudsman alleging
that 1) since 15 January 1997 (deadline for the applications)
they had not received any information on the outcome of their
applications, and that 2) the Parliament failed to reply to their
letters inquiring about the results of their applications.

The inquiry

The Parliament’s opinion

In its opinion, the Parliament observed that the opinion of the
Selection Board was delivered on 29 May 1998 and that the
candidates were notified of this decision by personal letter.
The Parliament annexed copies of those letters.

The Parliament explained that the delay in notifying the
candidates of the results of the competition was due to the
length of time taken by the Selection Board to reach its
decision, which in its turn was the result of the parliamentary
workload of its members. The Parliament also pointed out that
the administration’s invariable reply to telephone calls from
candidates was that, since the Selection Board had not yet
completed its deliberations, the results of the competition
could not yet be disclosed.

The complainants’ observations

The Ombudsman did not receive any comments from the
other complainants.

The decision

1.

The alleged failure to notify the complainants in due
time about the outcome of their applications

1.1. The complainants alleged that since 15 January 1997
(deadline for the applications) they had not received any
information about the outcome of their applications. The
the delay in notifying the
Parliament observed that
candidates of the results of the competition was due to
the length of time taken by the Selection Board to reach
its decision, which in its turn was the result of the
parliamentary workload of its members.

1.2. The Ombudsman notes that Article 3.7 of the compe-
tition rules provides that the Selection Board will meet in
the first term of 1997 to proceed to the examination of
the applications, after a preliminary analysis by the
Advising Committee. Article 3.9 of
the same rules
provides that the results of the competition will be
rendered public in the days which follow the decision of
the Selection Board.

1.3. The Ombudsman notes that, in the present case, the final
decision of the Selection Board to retain none of the
15 projects for designating a laureate was taken on
29 May 1998. This decision was subsequently notified to
the complainants on 17 June 1998 and 4 August 1998.
From the decision of the Selection Board it appeared that,
on 26 March 1997 already, the Advising Committee
considered that 9 (amongst which 2 of the complainants)
of the 15 projects could not be retained.
It further
appeared that, on 17 April 1997, the Selection Board
considered that none of the projects finally merited to be
retained. This conclusion was confirmed after a second
evaluation by the Selection Board on 3 February 1998.

The Ombudsman received observations from the complainants
in case 576/98/OV. The complainants observed that they were
unhappy that the competition prizes were never awarded and
that nobody received a contract to carry out the work. The
complainants found inadequate the Parliament’s excuse of
being too busy in order to inform the applicants. The
the Parliament had
complainants equally observed that

1.4. According to principles of good administration, appli-
cants should be notified in due time about the decisions
of the administration which affect their interests. In the
present case, it appeared that the complainants had been
notified of the decision of the Selection Board only 17 or
19 months after the deadline for the applications. The
Ombudsman considered that this was an unreasonably

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long period, especially when considering that already on
17 April 1997, i.e. only three months after the deadline
for the applications, the Selection Board had already
come to the conclusion that none of the 15 projects
could be retained.

1.5. The Parliament did not provide the Ombudsman with a
reasonable explanation for this delay, but merely referred
to the workload of the Members of the Selection Board.
More particularly the Parliament failed to explain to the
Ombudsman why, after its meeting of 17 April 1997
where it concluded that none of the 15 projects could be
retained, the Selection Board needed another 13 months
to simply confirm this conclusion. The Parliament there-
fore introduced an unnecessary and unjustified long delay
in informing the candidates about
the outcome of
their applications. This delay constituted an instance of
maladministration. The Ombudsman therefore made the
draft recommendation below.

2.

The alleged failure to reply to the complainants’ letters

2.1. The complainants in cases 507/98/OV, 576/98/OV and
818/98/OV alleged that the Parliament had failed to reply
to their letters in which they asked for information on
the outcome of their applications. The complainant in
case 507/98/OV for instance wrote to the Parliament on
16 March, 8 September and 18 November 1997, but
received no reply. The Parliament merely observed that
the administration’s reply to telephone calls from candi-
dates was that the results of the competition could not
yet be disclosed.

2.2. Principles of good administrative behaviour require that
letters from citizens to the Parliament administration
receive a reply within a reason-able time limit. In the
present case it appeared that the Parliament failed to
reply to the various letters from the complainants. The
Parliament did not give the Ombudsman valid reason
why it could not provide the complainants with a reply,
possibly a holding reply. This failure to reply therefore
constituted an instance of maladministration. The
Ombudsman therefore made the draft recommendation
below.

Conclusion

According to principles of good administration, applicants
should be notified in due time about the decisions of the
administration which affect their interests. In the present case,

it appeared that the complainants had been notified of the
decision of the Selection Board only 17 or 19 months after the
deadline for the applications. The Ombudsman considered
that this was an unreasonably long period, especially when
considering that already on 17 April 1997, i.e. only three
months after the deadline for the applications, the Selection
Board had already come to the conclusion that none of the
15 projects could be retained.

The Parliament did not provide the Ombudsman with a
reasonable explanation for this delay, but merely referred to
the workload of the Members of the Selection Board. More
particularly the Parliament failed to explain to the Ombudsman
why, after its meeting of 17 April 1997 where it concluded
that none of the 15 projects could be retained, the Selection
Board needed another 13 months to confirm this conclusion.
The Parliament
therefore introduced an unnecessary and
unjustified long delay in informing the candidates about the
outcome of
their applications. This delay constituted an
instance of maladministration.

Principles of good administrative behaviour require also that
letters from citizens to the Parliament administration receive a
reply within a reasonable time limit. In the present case it
appeared that the Parliament failed to reply to the various
letters from the complainants. The Parliament did not give the
Ombudsman a valid reason why it could not provide the
complainants with a reply, possibly a holding reply. This failure
to reply therefore constituted an instance of maladministration.

In view of these conclusions, and given that it was not possible
to find a friendly solution between the parties on these points,
the Ombudsman made the following draft recommendation
to the European Parliament:

The Parliament should, as a matter of good administrative
behaviour, present its apologies to the complainants for
the undue delay in informing them about the outcome of
the competition, and for not having answered the various
letters by the complainants in which they explicitly asked
for information on the results of the competition.

In accordance with Article 3 (6) of

this draft
The European Parliament will be informed of
recommendation.
the
Statute of the Ombudsman, the Parliament shall send a detailed
opinion within three months. The detailed opinion could
consist of acceptance of the Ombudsman’s draft recommen-
dation and a description of the measures taken to implement
it.

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3.6.3. THE EUROPEAN COMMISSION

FAILURE TO REINSTATE OFFICIAL AFTER UNPAID LEAVE ON
PERSONAL GROUNDS

complainant therefore lodged the present complaint with the
Ombudsman, alleging that the Commission had failed to
reinstate him at the end of his unpaid leave on personal
grounds and refused to pay a compensation for a) the loss of
salary because of the failure to reinstate him and b) the
financial loss due to his resignation.

Decision on complaint 489/98/OV against the European Com-
mission

The inquiry

The complaint

The Commission’s opinion

In April 1998 Mr P. made a complaint to the European
Ombudsman concerning the failure of the European Com-
mission to reinstate him at the end of his unpaid leave on
personal grounds and the refusal to pay him a compensation
for the loss of salary and the reduced pension. According to
the complainant, the relevant facts were as follows:

the European
The complainant, an A4 grade official of
Commission, went on unpaid leave on personal grounds for
one year from 1 October 1995 to 30 September 1996. He
complained that two months after the expiry of his unpaid
leave, the Commission had still not made an offer of reinstate-
ment, nor was there any prospect for a reinstatement in the
future.

The complainant consequently wrote to the Director General
of DG IX on 25 November 1996 informing him that, in order
to secure a source of regular income, and given that he had no
other option than taking early retirement, he resigned from
the service with effect from 1 October 1996.

On 10 June 1997, the complainant made a request, under
Article 90(1) of the Staff Regulations, for a financial compen-
sation for the loss of salary from the expiry of his leave up to
the date of his letter of resignation, and for the reduced
pension. On 5 August 1997, DG IX replied to the complainant
saying that had made an unequivocal request for resignation
as foreseen in Article 48 of the Staff Regulations, and that
therefore, it could not take into consideration his request for
compensation.

On 17 September 1997, the complainant submitted to the
appointing authority an appeal against this refusal under
Article 90(2) of the Staff Regulations, reiterating his demand
for financial compensation. The appointing authority rejected
the complainant’s request in its letter of 16 February 1998. It
considered that the Commission had not committed adminis-
trative irregularities and was not responsible for his resignation,
and that therefore it had not to pay a compensation. The

The complaint was forwarded to the Commission in May
1998. In its opinion, the Commission referred to the reply
of the appointing authority dated 16 February 1998. The
appointing authority had reminded the complainant of the
provision in Article 40(4)(d) of the Staff Regulations which
requires the institution to reinstate an official at the expiry of
the unpaid leave for personal grounds in the first post
corresponding to his grade which falls vacant in his category
or service, provided that he satisfies the requirements for that
post. The procedure for establishing whether an official
satisfies these requirements must actually take place and must
be conducted in such a way that the institution concerned can
prove that the stipulation was complied with. Failure to carry
out such checks would constitute a wrongful act or omission
which would entail liability from the Commission towards the
applicant.

The Commission then observed that an examination of the
steps taken by the complainant on the one hand and the
Commission on the other did not show any irregularity in the
reinstatement procedure. The appointing authority considered
that the fact that the complainant had not been reinstated at
the end of November 1996 was reasonable given that his
leave on personal grounds expired two months before, on
30 September 1996. On these grounds, the complainant’s
request for compensation was refused as regards the period
from the end of his leave on personal grounds to the date of
his letter of resignation.

The appointing authority pointed out that, in its judgement of
1 July 1976(1), the Court of Justice ruled that in the case of an
application for damages for failure to reinstate after the expiry
of leave on personal grounds, the applicant cannot, in the
absence of services rendered, claim payment of arrears of
salary. He is nevertheless entitled to receive compensation for
the actual damage he has suffered through the loss of this
salary as a result of the unlawful conduct of the administration.

As regards the application for financial compensation from
the date on which he retired, the complainant argued that he
was forced to resign given that the administration left him
with no income during the two months following the expiry

(1) Case 58/75, Sergy v. Commission, [1976] ECR 1139.

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of his leave. The Commission recalled the established case law
according to which the Community institution is liable if the
alleged conduct is unlawful, damage has actually been sus-
tained and a causal link exists between the said conduct and
the damage.

the Commission was requested to respond to
Secondly,
the complainant’s allegation that
it did not examine his
qualifications for any of the vacant posts, because they were
reserved for other applicants.

In the present case, the appointing authority checked that the
Commission had actually taken steps and had done so in a
proper manner, and that the period of two months between
the expiry of the leave and his letter of resignation was a
reasonable period, even if the complainant had not been
reinstated. Also the complainant’s resignation was the result
of his having stated unequivocally in writing his intention to
leave the service of the institution definitively, as laid down in
the
Article 48 of
resignation was a voluntary act of
the
Commission concluded that it bore no direct responsibility in
this matter and that no blame could be attached to the
Commission. Therefore the application for financial compen-
sation was rejected.

the Staff Regulations. Given thus that
the complainant,

The complainant’s observations

The complainant maintained his complaint. He stated that
there were in fact a number of perfectly suitable posts vacant
at the time, and that the Commission did not examine his
qualifications for any of these posts. He stated that four
suitable posts were reserved for other particular candidates or
for individuals from the new Member States. Therefore the
complainant considered that the Commission’s statement that
there had been no irregularity in the reinstatement procedure
was not correct. The steps taken by the Commission had not
been efficient given that they had not resulted in a single offer
of reinstatement in the course of 3,5 months from the date he
confirmed his intention to return, neither in a prospect of
reinstatement in the future. The complainant concluded that
the Commission’s conduct was negligent, that he suffered
damage and that the causal link between both was clear. On
22 April 1999, the complainant sent further details as regards
4 posts which were vacant at the time he asked for reinstate-
ment.

Further inquiries

In order to verify whether the Commission examined in detail
the abilities of the complainant in relation to the vacant posts
corresponding to his grade, the Ombudsman asked on 23 April
1999 for further comments from the Commission on three
points.

Firstly, the Ombudsman asked to obtain the list of all posts
(including the requirements) corresponding to the complain-
ant’s grade (A4) which were vacant in the period following the
expiry of his leave on personal grounds (30 September 1996).

Finally, the Ombudsman asked what was the justification for
the consideration of the appointing authority that the posts
which were vacant did not correspond to the complainant’s
qualifications (letter of Commissioner Liikanen dated 16 Febru-
ary 1998, page 3, last paragraph).

The Commission’s second opinion

this dispute was the consequence of

The Commission sent the Ombudsman the lists of vacant
management posts which were published every week between
18 July 1996 and 28 November 1996. The Commission
reiterated that
the
complainant’s unilateral decision of 25 November 1996 to
resign from the Commission,
less than two months after
1 October 1996. Therefore the Commission stated that it
could not be held responsible for that decision or its impact
on the complainant’s income.

With regard to the complainant’s allegation that it had not
examined his qualifications for any of the vacant posts, the
Commission observed that it was not disputed that there
were A5/A4 posts vacant between 1 October 1996 and
30 November 1996. The complainant cited four Head of Unit
posts. The Commission first pointed out that one of the posts
to which the complainant referred was an A3 post and
therefore not relevant.
It was thus necessary to examine
whether the complainant’s curriculum vitae demonstrated that
he satisfied the requirements for the other three posts.

According to the complainant’s CV, as an A4 official he had
been principal administrator (A5/4) and subsequently Head of
Division in DG II (Economic and Financial Affairs) between
1974 and 1990. Between 1990 and 1995 he was counselor
to DG I in Paris. The Commission observed that the complain-
ant’s CV was sketchy on his career and skills, and that until
1988 the post of Head of Division was reserved for A3
officials. After 1990, the complainant was no longer Head of
Division (or rather, Head of Unit).

The vacancies in question were for Head of the External
dimension of the Internal Market and Financial Services Unit
in DG XV, Head of the Unit monitoring the impact of the
European Social Fund in DG V, and Head of the United
Nations Unit in DG IA. Each of these posts required special
skills. The Commission stated that there was reasonable doubt
as to whether the complainant satisfied the requirement for
these posts, both in relation to the level of responsibility (a

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candidate for a Head of Unit post must have proven manage-
ment skills) and the other requirements. The administration
could therefore not be blamed for not having reinstated the
complainant immediately, because in such circumstances it
must request additional information from the person con-
cerned. That the Commission did not do so was due to the fact
that the complainant retired before this could be done within
a reasonable period of time.

DG IX of the Commission also contacted various Directorates-
General,
including DG I, DG II, DG VI and DG XXI in an
attempt to find a suitable post for the complainant. However,
those attempts did not lead to his reinstatement because the
complainant’s CV did not contain sufficient details on his
abilities. The Commission observed that this CV was too vague
to make an immediate decision possible.

The Commission therefore concluded that the administration
was far from inactive in this matter and had started taking
steps to reinstate the complainant.

The complainant’s additional observations

The complainant maintained his complaint reiterating that he
had not been offered any post in the 3,5 months following his
request for reinstatement. The complainant also observed that
his CV was intended to summarise his professional experience
that had already been known to the Commission for 22 years.
The complainant added that he was indeed occupying an
A3 post as Head of Division in DG II-E-2 from 1986 to
1987. The complainant stated that the posts to which the
Commission referred were all in line with his experience and
responsibilities at the Paris Delegation. Finally, he observed
that the Commission could have asked for the additional
information concerning his CV.

The decision

1.

The Commission’s failure to reinstate the complainant
at the end of his unpaid leave on personal grounds

1.1. The complainant alleged that the Commission failed to
reinstate him at the end of his unpaid leave on personal
grounds, on 30 September 1996. More particularly, two
months after this date he still had not received an offer of
reinstatement, nor was there any prospect of reinstate-
ment for the near future. The Commission observed that
the examination of the steps taken by the Commission
showed that there had not been any irregularity in the
the
reinstatement procedure.

In its second opinion,

Commission added that there were reasonable doubts as
to whether the complainant satisfied the requirements for
the posts which were vacant. The Commission also
pointed out that the complainant’s CV was too vague to
take an immediate decision on his reinstatement.

1.2. The Ombudsman noted that Article 40(4)(d) of the Staff
Regulations foresees that on the expiry of his leave an
official must be reinstated in the first post corresponding
to his grade which falls vacant in his category or service,
provided that he satisfies the requirements for that post.
According to the case-law of the Court of First Instance,
the administration shall verify systematically, through a
detailed examination, the abilities of the official awaiting
reinstatement in relation to each vacant post correspond-
ing to his grade. Therefore the procedure for verifying the
ability of officials awaiting reinstatement must be effective
and must take its course in such a way that the institutions
can prove that it has been observed. With this regard,
although the competent authorities cannot be compelled
to prove that they have examined the abilities of the
official where there is a manifest divergence between his
abilities and those required for a particular post which is
vacant, such proof must nevertheless be adduced in all
cases where, in the absence of such a manifest divergence,
a complete verification of the abilities of the person
concerned in relation to a vacant post is necessary. The
failure to verify systematically the abilities of the official
in question in relation to each vacant post to which he
could have been reinstated constitutes a service-related
fault which may give rise to liability on the adminis-
tration’s part insofar as such failure delays the reinstate-
ment of the person concerned (1).

1.3. The Ombudsman therefore verified whether,

in the
present case,
the Commission had made a detailed
examination of the abilities of the complainant in relation
to the posts which were vacant. It appeared that the
complainant asked on 12 August 1996 to be reinstated
with effect from 1 October 1996. In its final decision of
16 February 1998 on the complainant’s appeal under
Article 90(2) of the Staff Regulations, the Appointing
Authority merely observed that no Directorate General
was able to offer a post to the complainant before the
end of November 1996, because ‘either they had no
pertinent vacant posts available, or the vacant posts
did not correspond to the complainant’s abilities’. The
Appointing Authority did not give any justification
whatsoever for its conclusion that the complainant’s

(1) Case T-48/90, Giordani v. Commission, [1993], ECR II-721, para-
graphs 50 to 57; Case T-276/94, Buick v. Commission, [1995],
ECR,
II-667, paragraphs 34 to 46; Case T-205/96, Bieber v.
Parliament, [1998], ECR II-723.

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abilities did not correspond to those required by the
vacant posts, nor referred to the particular posts which
were vacant.

1.4. The Ombudsman therefore asked for more details on the
list of posts which were vacant in the period following the
expiry of the complainant’s leave on personal grounds. He
also requested the Commission to indicate what was the
Appointing Authority’s justification for its conclusion
that the complainant’s abilities did not correspond to
those of the vacant posts. From the lists of vacant posts
published between 18 July 1996 and 28 November 1996,
it appeared that during this period there were more than
twenty-five A5/A4 posts vacant (1).

1.5. However, in its opinion to the Ombudsman, with the
exception of the 4 posts indicated by the complainant
himself,
the Commission made no reference to any
particular vacant A5/A4 post out of these lists, nor gave
a justification, even shortly, why the complainant could
not be reinstated in one of those posts. With regard to
three of the four posts mentioned by the complainant, the
Commission again merely observed, without a detailed
examination, that there was reasonable doubt whether
the complainant satisfied the requirements for these
posts, both in relation to the level of responsibility (need
of proven management skills for Head of Unit posts) and
the other requirements. The Commission even added
that, given this genuine uncertainty, the administration
in such circumstances, request additional infor-
must,
mation from the person concerned. This requirement has
also been confirmed by the jurisprudence of the Court of
First
the Commission did not
proceed to do so.

Instance (2). However,

1.6. From the above, the Ombudsman concluded that the
Commission failed to carry out the detailed examination,
as required by the case-law of the Court of First Instance,
of the complainant’s abilities in relation to each vacant
post corresponding to his grade. This was also confirmed
by the fact that the Commission based its judgement of
the abilities of the complainant with regard to the vacant
posts only on the complainant’s curriculum vitae, which
it considered itself to be too vague and sketchy, and
without asking the complainant for more detailed infor-
mation. It also appeared that at no time did the Com-
mission consult the details of the complainant’s personal
file, which it could have done given that he had worked
for the Commission for 22 years.

1.7. It appeared thus from these considerations that

the
Commission’s failure to undertake a detailed examination

(1) Vacancies

COM/088/96,

COM/090/96,

COM/093/96,
COM/094/96, COM/095/96, COM/096/96, COM/R/5138/96,
COM/036/96, COM/105/96, COM/104/96, COM/103/96,
COM/109/96, COM/110/96, COM/065/96, COM/113/96,
COM/118/96, COM/122/96, COM/120/96, COM/126/96,
COM/115/96, COM/116/96, COM/128/96, COM/R/5659/96,
COM/131/96, COM/155/96 COM/157/96, COM/163/96.

of
the complainant’s qualifications for the posts in
question constituted an instance of maladministration
capable of rendering the Commission liable to the
complainant. Given that, because of the Commission’s
and the complainant’s opposite opinions,
it was not
possible to find a friendly solution between the parties on
this point, the Ombudsman made the draft recommen-
dation below.

2.

The complainant’s claims for a financial compensation
for the Commission’s failure to reinstate him and the
financial implications of his resignation

2.1. The complainant claimed a compensation for 1) the loss
of salary (between the end of his unpaid leave until the
date of his resignation) due to the Commission’s failure
to reinstate him at the end of his unpaid leave on personal
grounds, and for 2) the financial
loss linked to the
fact that he had to resign from the Commission. The
Commission refused to pay both compensations because
it considered that, on the one hand, it had not committed
an irregularity in the reinstatement procedure, and on the
other hand,
it could not be held responsible for the
complainant’s unilateral decision to resign from the
Commission.

2.2. With regard to the first claim for compensation due to
the Commission’s failure to reinstate the complainant,
the Ombudsman notes that, according to the case-law of
the Court of Justice, the applicant for damages for failure
to reinstate after the expiry of the leave on personal
grounds cannot,
in the absence of services rendered,
claim payment of arrears of salary. He is nevertheless
entitled to receive compensation for the actual damage
suffered through the loss of this salary as a result of the
unlawful conduct of the administration (3).

2.3. Therefore, in the present case, the Commission should
compensate the complainant for the material damage
directly suffered by him as a result of the Commission’s
service related fault which is the failure to undertake a
detailed examination of the complainant’s qualifications
for the posts which were vacant after the expiry of his
leave on personal grounds. The Ombudsman did not
consider himself able to determine the amount of this
compensation. He invited the parties to agree on the
principle and the amount of a financial compensation.
The Ombudsman therefore made the draft recommen-
dation below.

(2) See Case T-276/94 above, paragraph 43.

(3) Case 58/75,Sergy v. Commission, [1976] ECR 1139, paragraph 39.

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2.4. With regard to the second claim, the Ombudsman noted
that, according to the case law of the Court of Justice, the
institution concerned cannot be held liable for any
financial
loss arising out of the official’s decision to
leave his employment before receiving notice of his
reinstatement (1). Article 40(4)(d) in fine indeed foresees
that until effectively reinstated, the official shall remain
on unpaid leave on personal grounds. The Ombudsman
therefore considered that in the present case the Com-
mission could not be held responsible for the complain-
ant’s unilateral decision to resign. Therefore the complain-
ant’s claim for compensation was not grounded, and no
maladministration was found concerning this aspect of
the case.

Conclusion

According to the case-law of the Court of First Instance, the
administration shall verify systematically, through a detailed
examination, the abilities of the official awaiting reinstatement
in relation to each vacant post corresponding to his grade.

In the present case, the Appointing Authority did not give any
justification whatsoever for its conclusion that the complain-
ant’s abilities did not correspond to those required by the
vacant posts. Also, with the exception of the 4 posts indicated
by the complainant himself, the Commission made no refer-
ence to any particular vacant A5/A4 post out of the lists, nor
gave a justification, even shortly, why the complainant could
not be reinstated in one of those posts. The Commission based
its judgement of the abilities of the complainant with regard
to the vacant posts only on the complainant’s curriculum
vitae, which it considered itself to be too vague and sketchy,
and without asking the complainant for more detailed infor-
mation. Therefore, the Ombudsman concluded that the Com-
mission failed to carry out
the detailed examination, as
required by the case-law of the Court of First Instance, of
the complainant’s abilities in relation to each vacant post
corresponding to his grade. This failure constitutes an instance
of maladministration capable of rendering the Commission
liable to the complainant.

In view of these conclusions (points 1.7 and 2.3), and given
that it was not possible to find a friendly solution between the
parties on this point, the Ombudsman made the following
draft recommendation to the European Commission:

The Commission should compensate the complainant for
the material damage he directly suffered as a result of the
Commission’s service related fault which is the failure to

(1) Case 292/87, Pizziolo v. Commission, [1988] ECR 5165.

undertake a detailed examination of the complainant’s
qualifications for the posts which were vacant after the
expiry of his leave on personal grounds.

3.7. DRAFT RECOMMENDATIONS ACCEPTED BY THE

INSTITUTION

3.7.1. THE COUNCIL OF THE EUROPEAN UNION

AN UP-TO-DATE LIST OF MEASURES ADOPTED IN THE FIELD
OF JUSTICE AND HOME AFFAIRS

Decision on complaint 1055/25.11.96/STATEWATCH/UK/IJH
against the Council of the European Union

The complaint

On 22 November 1996, Mr B. complained to the Ombudsman
that the Council does not maintain and make available to the
public an up-to-date list of the measures which it adopts in the
field of Justice and Home Affairs. He claimed that in the
interests of informing citizens and conforming to democratic
standards the Council should maintain such a list and make it
available on request.

The draft recommendation

By decision dated 8 October 1998, following an inquiry into
the complaint and an attempt to achieve a friendly solution,
the Ombudsman addressed the following draft recommen-
dation to the Council in accordance with Article 3 (6) of the
Statute of the Ombudsman: (2)

The Council should make available to the public on
request, in accordance with the provisions of Council
Decision 93/731/EC, the list of all measures approved in
the field of Justice and Home Affairs which is maintained
by its General Secretariat.

Full details of the inquiry, the attempt to achieve a friendly
solution and the draft recommendation are contained in the
Ombudsman’s decision of 8 October 1998, which is reported
in the Annual Report for 1998 (section 3.6.1).

The council’s detailed opinion

The Ombudsman informed the Council that, according to
Article 3 (6) of the Statute, it should send a detailed opinion
before 31 January 1999 and that the detailed opinion could
consist of acceptance of the Ombudsman’s draft recommen-
dation and a description of how it has been implemented.

(2) Decision 94/262 of 9 March 1994 of the European Parliament on
the Regulations and General Conditions Governing the Perform-
ance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

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On 29 January 1999, the Secretary General of the Council sent
to the Ombudsman the following detailed opinion which was
adopted by the Council on 25 January 1999:

3.7.2. THE EUROPEAN COMMISSION

‘1. The Council accepts the Ombudsman’s draft recommen-
dation that it should make available to the public on request, in
accordance with the provisions of Council Decision 93/731/EC,
the list of all measures approved in the field of Justice and
Home Affairs which is maintained by its General Secretariat.

2. The Council has taken the following measures to implement
this recommendation:

— The database on the Council’s activities in the field of
Justice and Home Affairs which was announced in the
Council’s letter of 13 July 1998 is now operational and
accessible through the Internet (http://ue.eu.int). It allows
at any time to obtain an up-to-date listing of the measures
adopted by the Council in this area, either by date or by
subject.

— At present, the database contains the measures adopted by
the Council in 1998. In due time, it will also cover the
preceding years. In the meanwhile, a list of the measures
adopted in the field of Justice and Home Affairs before
1998 may be obtained from the General Secretariat on
request.’

After careful examination of the Council’s detailed opinion,
the Ombudsman considered that the measures it describes
were satisfactory to implement the draft recommendation.

A REGISTER OF COMMISSION DOCUMENTS

Decision on complaint 633/97/PD against the European Com-
mission

The complaint

In July 1997, Mr P. made two claims of maladministration
against the European Commission.

The first claim was that the Commission’s rules on public
access to documents also apply to documents of certain
involved in the Commission’s
committees which are
implementation of Council legislation — so-called comitology
committees — and that the Commission should not therefore
automatically refuse to give access to such documents.

The second claim concerned the lack of a register for
Commission documents. The complainant alleged that failure
to establish such a register amounts to maladministration
because it severely restricts the ability of citizens to make use
of the rules on access to documents, laid down in Commission
Decision 94/90, according to which the public shall have the
widest possible access to Commission documents.

The Council’s detailed opinion was forwarded to the complain-
ant, who informed the Ombudsman by telephone on 23 Febru-
ary 1999 that he was pleased with the outcome.

The inquiry

The Commission’s opinion

The decision

On 8 October 1998, the Ombudsman addressed the following
in accordance with
draft recommendation to the Council,
Article 3 (6) of the Statute:

The Council should make available to the public on
request, in accordance with the provisions of Council
Decision 93/731/EC, the list of all measures approved in
the field of Justice and Home Affairs which is maintained
by its General Secretariat.

On 29 January 1999, the Council informed the Ombudsman
of its acceptance of the draft recommendation and of the
measures which it has taken to implement it. The measures
described by the Council appeared to be satisfactory and the
Ombudsman therefore closed the case.

As regards the first claim, the Commission stated in summary
that the committees in question could not be considered to be
Commission committees, as the members of the committees
were national representatives. Thus documents relating to the
committees could not be considered to be Commission
documents covered by the Commission Decision on public
access to documents. The Commission also observed that the
question of the status of documents relating to comitology
procedures was the subject of pending court proceedings in
case T-188/97, Rothmans v Commission.

As regards the second claim, the Commission stated that the
Commission does not have an official document register which
is open to the public. However, the Commission expressed
understanding for the complainant’s view that it is difficult for
the public to gain access to documents if their existence is not
known. The Commission would therefore study the proposal
to introduce document registers.

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The complainant’s observations

In his observations, the complainant maintained his complaint.
As concerns the pending court case, the complainant observed
that he was not a party in that case.

Further inquiries

Since the Commission did not consider its rules on public
access to be applicable to comitology documents, the Ombuds-
man addressed the Council, in order to ask it for an opinion as
to whether comitology documents are covered by the Council’s
rules on public access to documents.

The Council’s opinion

In its opinion, the Council stated,
in substance, that the
committees in question could not be considered to be Council
committees and that, therefore, documents relating to the
committees are not covered by Council Decision 93/731 on
public access to Council documents. The Council added that
normally it would not be physically in possession of the
documents
also drew the
Ombudsman’s attention to the pending case Rothmans v.
Commission.

in question. The Council

The complainant’s observations

In observations on the Council’s opinion, the complainant
maintained the complaint.

The decision and draft recommendation

1. Access to comitology documents

The Ombudsman concluded that no further inquiries into this
aspect of the complaint were justified, because the issue of
access to comitology documents was before the Court of First
Instance in a pending case, T-188/97 Rothmans International v.
Commission. In reaching this decision, the Ombudsman took
into account that, although the complainant was not a party
in the Rothmans case, his complaint does not concern any
particular comitology documents, but rather the general
question of whether the Commission’s rules on public access
apply to such documents. It appeared that this issue would fall
to be determined by the Court of First Instance in dealing with
the Rothmans case.

documents it holds including the incoming and outgoing
documents it holds. Such a register helps to ensure
the consistency and continuity of the activities of the
authority. A register also enhances the efficiency of the
activities of the authority. Absence of a register could
make it difficult to locate documents accurately and
quickly. A register will also help ensuring that citizens get
a timely reply to their submissions.

2.2. It is established case law that public access to documents
forms part of the progressive affirmation of citizens’ right
to obtain knowledge of the information that a Com-
munity institution holds. The absence of a register of
documents constitutes an obstacle to the exercise of this
right; it is difficult for citizens to apply for access to
documents whose existence they ignore. This obstacle
may be removed by virtue of the institution’s power of
internal organisation.

2.3. The fact that a document is included in a register does
not automatically mean that the document is public. The
register merely enables citizens to lodge a request for
access to a given document. It is then for the institution
to decide upon that request, under its rules on public
access and confidentiality. Thus the creation of such a
register does not stop the institution from respecting the
confidential nature of a document.

2.4. Against this background, the Ombudsman found that
the Commission’s failure to keep a public register of
documents constituted an instance of maladministration.
Given that the maladministration did not concern a
matter only related to the complainant, it did not appear
appropriate to seek a friendly solution under Article 3 (5)
of the Statute of the European Ombudsman.

In accordance with Article 3 (6) of the Statute of the European
Ombudsman, the Ombudsman therefore made the following
draft recommendation to the Commission:

The Commission should keep a public register of docu-
ments it holds.

2. A Register of documents

2.1. A basic principle of good administration is that a
public authority should maintain an adequate register of

The Ombudsman informed the Commission that, according
to Article 3 (6) of the Statute, it should send a detailed opinion
by 30 April 1999 and that the detailed opinion could consist
of acceptance of the Ombudsman’s draft recommendation and
a description of how it has been implemented.

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The Commission’s detailed opinion

The decision

On 30 April 1999, the Commission sent to the Ombudsman
the following detailed opinion:

1. Comitology documents

The Commission shares the view of both Mr P. and the
Ombudsman that the creation of a register of documents would
give the public an indication of the documents that exist to
which it can request access. It would also facilitate document
search and increase the public impact of the policy on access to
documents.

1.1. The complainant claimed that Commission Decision
94/90 (1) on public access to documents also applies to
documents of certain committees which are involved in
the Commission’s implementation of Council legislation
— so-called comitology committees — and that the
Commission should not therefore automatically refuse to
give access to such documents.

The Commission also believes that registers are an important
way of informing the public about the institutions’ activities
and work in progress. Another useful tool in this respect has
been the creation of the Europa server on the Internet. There is
scope for developing this system further.

However, it is important to stress that the systems currently
used by the Commission for registering documents are designed
for administering incoming and outgoing mail and are not
organised with a view to external distribution. Moreover, there
is currently no uniform system of registering and archiving
Commission documents. Document registration is completely
decentralised and is the responsibility of each directorate-general
and service.

As part of the implementation of Article 255 of the EC Treaty,
which deals with access to documents, the Commission is
studying the possibility of creating a public register which would
in the first instance list documents in the categories most
commonly requested, according to our statistics. Evidently,
access would not be limited only to those documents included in
the register, as this would be too restrictive.

The question of the creation of a register and the scope of its
coverage will have to be put before the Commission in
connection with the implementation of Article 255. In this
context the Commission may also consider a revision of its
registration system.

1.2. By decision dated 29 January 1999, the Ombudsman
concluded that no further inquiries into this claim were
justified, because the issue of access to comitology
documents was before the Court of First Instance in a
pending case, T-188/97 Rothmans International v. Com-
mission. In reaching this decision, the Ombudsman took
into account that, although the complainant was not a
party in the Rothmans case, his complaint did not
concern any particular comitology documents, but rather
the general question of whether the Commission’s rules
on public access apply to such documents. It appeared
that this issue would fall to be determined by the Court
of First Instance in dealing with the Rothmans case.

1.3. On 19 July 1999, the Court of First Instance delivered
judgement in the Rothmans case (2). It held that, for the
purposes of the Community rules on access to docu-
ments, comitology committees come under the Com-
mission itself. It is therefore the Commission which is
responsible for ruling on applications for access to
documents of those committees under Decision 94/90.

1.4. It therefore appeared that the Court of First Instance has
in a way which

dealt with the question of principle,
supports the claim made by the complainant.

2. A Register of Commission documents

The complainant’s observations

2.1. On 29 January 1999, the Ombudsman addressed the
following draft recommendation to the Commission:

The detailed opinion was forwarded to the complainant who
responded that he did not regard it as satisfactory because it
did not provide an unambiguous commitment to compile and
maintain a register. He also mentioned that, at a conference in
April 1999, a Commission official had refused the prospect of
the Commission establishing a register. Finally he considered
that the Commission’s suggestion that it might begin with a
register of documents which are frequently requested over-
looks the possibility that the public would request many other
important documents if only they came to its attention.

The Commission should keep a public register of docu-
ments it holds.

(1) Commission Decision of 8 February 1994 on public access to

Commission documents OJ 1994, L 46, p. 58.

(2) Case T-188/97 Rothmans International v Commission, judgement of

19 July 1999.

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2.2. On 30 April 1999, the Commission responded with a
detailed opinion which accepts the principle of a register
of documents giving the public an indication of the
documents that exist to which it can request access. The
detailed opinion also identifies practical
issues which
must be dealt with before a register could be established.

2.3. Although the complainant did not consider the Com-
mission’s response to be satisfactory, the Ombudsman
accepted that the Commission needs adequate time in
which to deal with the practical
issues involved in
establishing a register of all the documents that exist to
which the public can request access. The Ombudsman
also noted in this context that the judgement of the Court
of First Instance in Rothmans International v. Commission
confirms that the Commission must also deal under
Decision 94/90 with requests for public access to comito-
logy documents. The Commission should therefore also
include such documents in its register.

2.4. The Ombudsman noted with regret that the drafting of
the Regulation foreseen by Article 255 of the EC Treaty,
which establishes a Treaty right for citizens to have access
to documents of the European Parliament, Council and
the
Commission, was delayed by the resignation of
Commission. However, in view of paragraph 2.3 above,
the Ombudsman considered it reasonable for the Com-
mission to propose to implement the principle of a
register of documents as part of its implementation of
Article 255 EC.

a result of having to make the super-levy payment, but was
advised by the Department that Regulation 2055/93 makes
no provision for compensation. X complained to the Irish
Ombudsman.

In the query to the European Ombudsman, the Irish Ombuds-
man made reference to the legal principle of unjust enrichment
and to X’s claim that the failure to pay compensation was
unfair and an abuse of power. He requested the European
Ombudsman to forward details of
the complaint to the
Council. Since the issues appeared to concern the correct
application of Community law, the European Ombudsman
proposed that the query be referred to the Commission. This
proposal was accepted by the Irish Ombudsman.

The commission’s response

The opinion dated 23 October 1997

In its opinion dated 23 October 1997, the Commission stated
that the determination of the right of X to compensation
depended on the outcome of a pending case before the Court
of First Instance concerning the liability of the Community
institutions to pay compensation to so-called ‘SLOM III’ milk
producers.

The Ombudsman therefore considered the Commission’s
response to the draft recommendation to be satisfactory and
closed the case.

The complementary response dated 20 May 1998

3.8. QUERIES FROM NATIONAL OMBUDSMEN

REPAYMENT OF MILK SUPER LEVY

Query from the Irish Ombudsman Q2/97/IJH

The query

In June 1997, the Irish Ombudsman addressed a query to the
European Ombudsman concerning the case of X, a farmer
who had paid super-levy on his milk production. X was
subsequently awarded a milk quota and so became entitled to
repayment of the amount of the super-levy under Regulation
2055/93 (1). X requested compensation from the Irish Depart-
ment of Agriculture, Food and Forestry for the loss suffered as

On 20 May 1998, the Commission sent a complementary
response which referred to the judgement of the Court of First
Instance in the in the above-mentioned case (2). The judgement
required the Council and Commission to pay damages for
losses incurred as a consequence of the application of Com-
munity Regulations in the case of SLOM III producers. The
Commission also referred to the likelihood that a Regulation
providing under certain conditions for an offer of compen-
sation to be made to the producers concerned would be
adopted in the coming months.

The Commission’s complementary response also included the
following points:

The complaint concerning [X] is not sufficiently detailed so as
to enable the Commission to understand exactly the position of
the complainant.

(1) 1993 OJ L 187/8 and corrigendum 1993 OJ L314/51.

(2) Judgement of 9 December 1997 in joined cases T-195/94 and
T-202/94, Friedhelm Quiller and Johann Heusmann v Council and
Commission [1997] ECR II-2247.

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The Commission is therefore of the opinion that it would be
useful to indicate to the Irish Ombudsman that it might be
appropriate to inform [X] of the operation of the rules on time
limitation which are referred to in the standard letter [sent to
producers who have addressed applications to the Commission].
[X] may also wish to obtain advice from a producers organis-
ation with a view to making an application to the Commission
in order to preserve his rights...

The Commission notes that no administrative approaches to it
have ever been accomplished by [X].

The Commission’s complementary response was forwarded to
the Irish Ombudsman.

The irish ombudsman’s observations

On 8 January 1999, the Irish Ombudsman again wrote to the
European Ombudsman about X’s case, referring in particular
to the conditions for waiver of the statutory time bar of five
years for making a claim for compensation under Regulation
(EC) No 2330/98 (1)
(the Regulation foreseen in the Com-
mission’s complementary response dated 20 May 1998).

The Irish Ombudsman requested that his further observations
on X’s case should be forwarded to the Commission. He also
invited the European Ombudsman to make observations on
the issue.

The commission’s further response

The Irish Ombudsman’s observations were forwarded to the
Commission. In its further response, the Commission refers to
the procedural conditions for waiver of the time bar laid down
by Article 7 of Regulation (EC) No 2330/98 (2). It also made
the following points:

‘5. The complainant never addressed an application to one of
the Community institutions referred to by the Regulation, nor
did he bring an action before the Court.

6. In this situation the Commission considers that reasons of
form and substance prevent it from regarding as equivalent to a
postal claim or a legal proceeding the complaint addressed by
[X] to the Irish and European Ombudsmen. Lastly, article 2.6
of the Statute of the European Ombudsman establishes that
complaints submitted to the Ombudsman shall not affect time
limits for appeals in administrative or judicial proceedings.’

The letter stated that, from the evidence available, it appears
that X did not make himself and the circumstances of his claim
for compensation known to Community institutions before
1 August 1998 (the date on which the time bar commences)
and is not therefore eligible to have his case considered under
the Regulations.

The european ombudsman’s observations

1. Although the Commission’s further response refers to
‘the complaint addressed by [X] to the Irish and European

The Irish Ombudsman pointed out that if X had made a postal
claim or had instituted legal proceedings against the Council
or Commission before 1 August 1998, he would have been
entitled to have his case for compensation considered under
the Regulation. The Irish Ombudsman expressed the view that:

(i)

(ii)

X’s original claim for compensation was notified to
the Commission, via the European Ombudsman’s
office, before 1 August 1998; and

such notification is reasonably to be regarded as the
equivalent of making a postal claim or instituting
legal proceedings.

Accordingly, the Irish Ombudsman considered that X should
be able to benefit from the waiver of the statutory time bar.

(1) 1998 OJ L 291/4.

(2) 1. Compensation shall only be offered for the period for which

the right to compensation is not time-barred.

2. For the purpose of determining the period for which compen-

sation shall be offered:
(a) the date of interruption of the five-year time bar laid down
by Article 43 of the Statute of the Court of Justice shall be
the earliest of the following events:
— in the case of an action brought before the Court of
Justice or the Court of First Instance, the date on which
the application is entered in its register,

— in the case of an application addressed to a Community
institution, the date of reception of such application by
the Council or the Commission (whichever was the
earlier) provided either that the applicant subsequently
brought an action before the Court of First Instance
within the two-month delay stipulated in Article 43 of
the Statute of the Court of Justice, or that the Com-
munity institution accepted in writing that such appli-
cation interrupted the time bar;

(b) the starting date of the compensation period shall be five
years before the date of interruption of the time bar, but
not before 2 April 1984 nor before the date on which the
non-marketing or conversion undertaking expired;

(c) the closing date of the compensation period shall be
1 August 1993 or the date when the producer received a
special reference quantity if earlier.

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Ombudsmen’ X made no complaint to the European
Ombudsman, who dealt with the case solely in the
context of a query from the Irish Ombudsman.

TAX BASE FOR THE CALCULATION OF VAT

Query Q4/98/ADB

The complaint

2.

The procedure for dealing with queries was agreed at the
seminar for national Ombudsmen and similar bodies held
in Strasbourg in September 1996.

‘The European Ombudsman will receive queries from
national Ombudsmen about Community law and either
provide replies directly, or channel
the query to an
appropriate Union institution or body for response’.

3.

4.

5.

The query procedure does not resemble the procedure of
Article 177 EC, which provides for the Court of Justice to
give preliminary rulings on questions of Community law
raised in pending cases before national courts. The Statute
of the European Ombudsman explicitly provides that no
authorities other than Community institutions and bodies
come within his mandate. Although it could be argued
that nothing prevents him providing an abstract interpret-
ation of a Community law issue in a complaint pending
before a national ombudsman, such an interpretation
would in reality find either in favour or against the
national authority concerned.

It is not to be excluded that the query procedure could
lead to an inquiry by the European Ombudsman, either
on his own initiative or on the basis of a complaint, into
a possible instance of maladministration by a Community
institution or body, including the institution or body to
which a query has been channelled.

In the present case, the Commission’s further response
to the Irish Ombudsman’s query does not appear to
misinterpret or misapply the relevant provisions of
Regulation (EC) No 2330/98. Moreover, during the query
procedure the Commission gave appropriate advice con-
cerning the action which X needed to take in order to
protect his rights. There appear, therefore, to be no
grounds to justify an inquiry by the European Ombuds-
man into a possible instance of maladministration by the
Commission.

In the framework of a conference held in Verona (Italy) in
September 1998, the European Ombudsman was transmitted
a query by Mr. Fraizzoli, Ombudsman of the city of Verona.
He wondered whether the fact that the tax base of VAT
sometimes also includes other taxes is really legitimate. This
question was of importance for several of his complainants.

In transmitting his query to European Ombudsman,
the
Ombudsman of Verona wanted to obtain an authoritative
opinion from a European Institution. Since the question related
to a very specific issue in the domain of indirect taxation,
the European Ombudsman decided to ask the European
Commission to provide him with a response.

In its answer to the European Ombudsman, which was
transmitted to the Ombudsman of Verona, the Commission
took stock of the applicable EU-legislation and case law, as
well as of the Italian legislation. In summary the Commission
explained that the situation mentioned by the Ombudsman of
Verona neither infringed any of the above mentioned pro-
visions, nor required any legislative intervention by the
Commission.

INTERPRETATION OF COMMISSION REGULATION 1251/70

Query from the Danish Ombudsman, Q1/99/PD

Query

In February 1999, the Danish Ombudsman asked the European
Ombudsman for his observations on a case which he was
examining and which concerned Commission Regulation (EC)
No 1251/70, in particular Articles 2 (1) and 4 (2). Annexed to
the letter was a legal opinion on the case, in an anonymous
version,
in which the Danish Ombudsman stated his pro-
visional conclusion on the case. It appeared from the opinion
that
the Danish Ombudsman did not share the Danish
authorities’ interpretation of the Regulation in relation to the
case in question.

In his letter, the Danish Ombudsman asked the European
Ombudsman not to submit the case to any other authority,
including the Commission, as the case contained sensitive
information.

The European Ombudsman made this preliminary observation:

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As the cooperation with national Ombudsmen is a matter
which is particularly important to the European Ombudsman,
he makes every effort to enhance it within the limits of his
mandate.

1992. After that date he was involuntarily unemployed and
subsequently he became permanently disabled because of
diabetes. He considered himself entitled to remain in Denmark.
He based this entitlement on the Article 2 (1) letter b) read in
combination with Article 4 (2) of Regulation 1251/70. Article
2 (1) of the Regulation provides:

The preamble of the Statute of the European Ombudsman
provides:

‘...provision should be made for the possibility of cooperation
between the Ombudsman and authorities of the same type in
certain Member States, in compliance with the national laws
applicable’;

In continuation of that, Art 12 of the Implementing Provisions
for the Statute provides:

‘The Ombudsman may work in conjunction with ombudsmen
and similar bodies in the Member States with a view to
enhancing the effectiveness both of his own inquiries and of
those carried out by ombudsmen and similar bodies in the
Member States and of making more effective provision for
safeguarding the rights and interests of European citizens’.

On this basis, it is possible for the European Ombudsman to
receive queries from national Ombudsmen about Community
law and either provide replies directly, or channel the query to
an appropriate Union institution or body for response. How-
ever, the European Ombudsman has no authority to engage in
a procedure like the Art 177 procedure under the EC Treaty,
by providing interpretation of Community law provisions in
pending cases, which concern national authorities. Although
one could argue that nothing hinders an abstract interpretation
of the provisions in question by the European Ombudsman,
such an interpretation would in reality find either in favour or
against the national authority concerned. Due consideration
has also to be given to the fact that the Statute of the European
Ombudsman explicitly provides that no other authorities than
Community institutions and bodies come under his mandate.

Therefore, the European Ombudsman had to limit himself to
undertaking research to provide the Danish Ombudsman with
all necessary elements for the case he was examining.

Thereafter, the European Ombudsman observed:

The background to the Danish Ombudsman’s letter was in
brief the following:

‘1. The following shall have the right to remain permanently

in the territory of a Member State:

a) a worker who, at the time of termination of his activity, has
reached the age laid down by the law of the Member State
for entitlement ...

b) a worker who, having resided continuously in the territory
of that State for more than two years, ceases to work there
as an employed person as a result of a permanent incapacity
to work. If such incapacity is the result of an accident at
work or an occupational disease entitling him to a pension
for which an institution of that State is entirely or partially
responsible, no condition shall be imposed as to the length
of residence;

c) a worker who, after three years’ continuous employment and

residence in the territory of that State, works. ...’

Article 4 (2) of the Regulation provides:

‘Periods of involuntary unemployment, duly recorded by the
competent employment office, and absences due to illness or
accident shall be considered as periods of employment within
the meaning of Article 2 (1)’.

It appeared from the legal opinion annexed to the Danish
Ombudsman’s letter that in examining the case of the British
citizen, he reached the provisional conclusion that Article 4 (2)
has as a consequence that the worker, concerned by Article 2
(1) letter b), may be involuntarily without a job, when the
permanent
incapacity to work occurs. Thus, Article 2 (1)
should grant such a worker the right to remain permanently
in Denmark. The opinion contained a thorough examination
of the case law and literature. It was stated that there is no case
law on the specific question and thus, the Danish Ombudsman
reached his conclusion on the basis of the general parameters
for the interpretation of provisions concerning the right to
free movement
the provisions shall be
construed broadly and the exceptions to the right shall be
construed narrowly.

for persons,

i.e.

A British citizen entered Denmark in July 1989 and took up
employment in August 1989 which lasted until 31 January

The European Ombudsman’s comments on this were as
follows:

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Council Directive 75/34/EEC concerning the right of nationals
of a Member State to remain in the territory of another
Member State after having pursued therein an activity in a self-
employed capacity (OJ 1975 L 14, p. 10) contains identical
provisions as the ones in question. The European Ombudsman
therefore also examined whether there was any case law or
literature on the problem which preoccupied the Danish
Ombudsman in relation to the provisions of that Directive.

publicly available, rules governing public access to their
documents (1).

The predecessor of the European Central Bank (ECB), the
European Monetary Institute (EMI), was included in the inquiry.

The result of the European Ombudsman’s research was that
there is no case law of the Community Courts which directly
takes a stand on the question whether the provisions in
question of Regulation (EC) No 1251/70 or of Directive
75/34/EEC should be interpreted so that they cover such a
situation as the one of the British citizen in question. Neither
were there any pending cases concerning the question by
1 April 1999, nor did the European Ombudsman have any
knowledge of any Commission practice on the provisions, for
instance as reflected in the Commission’s replies to questions
of MEPs. Legal literature at the library of the Court of Justice
had been consulted. No literature dealing with the question
had been found. Although preparatory works have a very
limited role as a source of law when the fundamental rights of
the Commission’s explanatory
the Treaty are concerned,
memorandum to the proposal for Regulation (EC) No 1251/70
was also examined. There appeared to be no stand on the
specific questions that interested the Danish Ombudsman.
However, the European Ombudsman drew the attention to a
passus in the explanatory memorandum which could have a
bearing on the question.

3.9. OWN INITIATIVE INQUIRY BY THE OMBUDSMAN

OWN-INITIATIVE INQUIRY ON PUBLIC ACCESS TO DOCUMENTS
HELD BY THE COMMUNITY PLANT VARIETY OFFICE, THE EURO-
PEAN AGENCY FOR SAFETY AND HEALTH AT WORK, EUROPOL
AND THE EUROPEAN CENTRAL BANK

The reasons for the inquiry

According to Article 195 EC, the European Ombudsman may
conduct inquiries on his own initiative in relation to possible
instances of maladministration in the activities of Community
institutions and bodies.

On 20 December 1996, the Ombudsman adopted a decision
which considered that failure to adopt, and to make easily
available to the public, rules governing public access to
documents could constitute an instance of maladministration.
The Ombudsman’s decision included the following draft
recommendations:

1.

2.

The institutions and bodies should adopt rules concerning
public access to documents within three months;

The rules should apply to all documents that are not
already covered by existing legal provisions allowing
access or requiring confidentiality;

3.

The rules should be made easily available to the public.

The detailed opinions which were subsequently sent to the
Ombudsman, in accordance with Article 3 (6) of the Statute of
the Ombudsman, showed that nearly all of the institutions
and bodies had adopted rules governing public access to
documents.

On 15 December 1997, the Ombudsman submitted a special
report to the European Parliament, which adopted a Resolution
congratulating the Ombudsman on the initiative and special
report and welcoming the action in favour of transparency (2).
The Ombudsman became aware of four bodies which became
inquiry
the
after
operational
616/PUBAC/F/IJH:
the Community Plant Variety Office
(CPVO), the European Agency for Safety and Health at Work
(EASHAW), the European Police Office (Europol) and the
European Central Bank (ECB).

closure of own-initiative

In April 1999, the Ombudsman began a further own-initiative
inquiry into public access to documents held by these four
bodies.

In June 1996, the Ombudsman began an own-initiative inquiry
(616/PUBAC/F/IJH) into public access to documents held by
Community institutions and bodies other than the Council
and the Commission, which had already adopted their own,

(1) Council and Commission joint Code of Conduct (OJ 1993 L 340,
p. 41); Council Decision of 20 December 1993 on public access
to Council documents (OJ 1993 L 340, p. 43); Commission
Decision of 8 February 1994 on public access to Commission
documents (OJ 1994 L 46, p. 58).
(2) OJ 1998 C 292, p. 170; A4-0265/98.

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The inquiry was closed as regards the CPVO, EASHAW and
the ECB following the adoption by these three bodies of rules
about public access to documents. The relevant decisions are
set out below. As regards Europol, the Ombudsman made
draft recommendations, which are also set out below.

Article 3 provides for applicants to have access either by
consulting the document on Agency’s premises after making
an appointment, or by having a copy sent at his or her own
expense. A fee may be charged to cover the cost of photocopies
exceeding 30 pages, or for information provided in other
formats.

Decision closing own-initiative inquiry OI/1/99/IJH as
regards the European Agency for Safety and Health at Work

The inquiry

On 7 April 1999, the Ombudsman wrote to the Director of
the European Agency for Safety and Health at Work to request
information about its situation as regards public access to
documents; whether it has adopted rules on the matter and if
so whether the rules are easily available to the public.

The opinion of the European Agency for Safety and Health
at Work

The Agency informed the Ombudsman that, in June 1998, it
had adopted rules on public access to documents which are
aligned with the European Commission’s rules. The Agency
enclosed a copy of its decision ADM/98/1 dated 16 June 1998
establishing rules on freedom of information and protection
of privacy and personal data. The decision consists of seven
Articles, preceded by an explanatory memorandum of thirteen
paragraphs.

Article 1 (2) defines ‘Agency documents’ to mean ‘any existing
written text or information made available on the Internet,
whatever its format containing existing data and issued by the
European Agency for Safety and Health at Work’. Article 1 (3)
makes specific provision for access to internal documents of
the Agency, defined as documents which are ‘not finished or
not destined to be published’. The inclusion of the words
‘issued by’ appears to limit the possibility of public access to
documents of which the Agency is not
the author (the
‘authorship rule’). This is confirmed by paragraph 9 of the
explanatory memorandum.

Article 2 provides for applications to be made in writing to
the Director of the Agency. Applications must be made in a
sufficiently precise manner and must contain information
enabling the particular document requested to be identified.
Where necessary, the applicant shall be asked for further
details. Applicants do not have to prove an interest.

Article 4 establishes a procedure for applications which is
analogous to that under the Commission and Council rules.
Applications are to be dealt with under the responsibility of
the Director of the Agency, within one month. A negative
decision must be reasoned. Applicants may apply to the
Chairperson of the Administrative Board for review of a
negative decision. The decision on the review shall be taken as
soon as possible and within two months at the latest. If the
application is rejected, the decision shall state the grounds on
which it is based. At the same time, applicants shall be
informed of the possibility of referring the matter to the
Ombudsman pursuant to the provisions of Article 195 EC.

Article 5 provides for exceptions to the general right of access.
The exceptions are in substance the same as those contained
in the Council and Commission rules on access to documents.

Article 6 provides for review of the Decision after two years of
operation. In preparation for that review, the Director shall
submit in due time a report to the Administrative Board on
the implementation of the Decision.

Article 7 provides that the decision shall take effect on the day
of its adoption by the Administrative Board. It also requires
the Decision to be published in the Official Journal and to be
made available to the public.

The Agency also informed the Ombudsman that the decision
is accessible on the its website
(http://agency.osha.eu.int/publications/other/infofreedom/)
and will soon be published in the Official Journal.

The decision

1.

The adoption of rules on public access to documents

1.1. The Ombudsman informed the European Agency for
Safety and Health at Work of a draft recommendation,
made in a previous own-initiative inquiry, that Com-
munity institutions and bodies should adopt rules con-
cerning public access to documents.

1.2. The Agency informed the Ombudsman of its Decision
ADM/98/1 which came into effect on 16 June 1998. The
Decision contains rules and procedures governing public
access to Agency documents.

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1.3. There is therefore no evidence of maladministration by
the Agency in relation to the adoption of rules on public
access to documents.

Decision closing own-initiative inquiry OI/1/99/IJH as
regards the European Central Bank

2. Making the rules easily available to the public

The inquiry

2.1. The Ombudsman informed the European Agency for
Safety and Health at Work of a draft recommendation,
made in a previous own-initiative inquiry that rules on
access to documents should be made easily available to
the public.

2.2. The Agency’s Decision ADM/98/1 requires the Decision
to be published in the Official Journal and made available
to the public. The Decision is published on the Agency’s
website (http://agency.osha.eu.int/infofreedom/).

2.3. There is therefore no evidence of maladministration by
the Agency in relation to making its rules on access to
documents easily available to the public.

Conclusion

In view of the above, there appears to be no maladministration
by the European Agency for Safety and Health at Work. The
Ombudsman
inquiry
closed
OI/1/99/IJH as regards the Agency.

own-initiative

therefore

On 7 April 1999, the Ombudsman wrote to the President of
the ECB to request information about its situation as regards
public access to documents; whether it has adopted rules on
the matter and if so whether the rules are easily available to
the public.

The opinion of the European Central Bank

The ECB informed the Ombudsman that, on 3 November
1998,
it adopted a decision concerning public access to
documentation and the archives of the European Central Bank
(ECB/1998/12). The ECB enclosed a copy of the decision and
drew the Ombudsman’s attention to the following part of its
preamble:

‘Whereas the European Ombudsman issued a Decision in the
own initiative inquiry into public access to documents; whereas
the recommendations of that Decision applied to the EMI only
in relation to administrative documents; whereas the same
limitations of the scope of application of the Decision are
applicable to the ECB’;

The ECB also informed the Ombudsman that it had sent
decision ECB/1998/12 to the Office for Official Publications
with a view to publication in the Official Journal.

Further remarks

Further inquiries

The Ombudsman notes that the rules adopted by the European
like those of the
Agency for Safety and Health at Work,
Council and the Commission, limit the possibility of public
access to documents of which it is not the author (the
‘authorship rule’).

The Ombudsman carefully examined the rules adopted by the
ECB, which are based on those previously adopted by the
European Monetary Institute (EMI) (2). The Ombudsman also
noted that:

Although it appears to have no equivalent in comparable
national legislation, it seems that the present state of Com-
munity law allows Community institutions and bodies to
include the authorship rule in their rules on public access to
documents. The Ombudsman notes, however, that the Court
of First Instance has held that the authorship rule as adopted
by the Commission must be construed and applied strictly, so
as not to frustrate the application of the general principle of
transparency (1).

— unlike the Commission and Council rules on public
access, the ECB’s rules do not contain any express
provision restricting the possibility of public access
to documents of which it is not the author (the
‘authorship rule’);

— the ECB’s rules relate to ‘administrative documents’,
defined by Article 1.2 of ECB decision ECB/1998/12
to mean ‘any record ... which relates to the actual
organisation and functioning of the ECB’;

(1) Case T-188/97 Rothmans International v Commission, Judgement of

19 July 1999, paragraph 55.

(2) 1998 OJ L 90, p. 43.

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— the limitation of the ECB’s rules to ‘administrative
documents’ could have a similar effect in practice to
the authorship rule, since a document of which the
ECB is not the author seems unlikely to relate to the
actual organisation and functioning of the ECB.

in that

from those of

The Ombudsman is aware that the functions of the ECB are
different
the Governing
the EMI,
Council of the ECB formulates the monetary policy of the
Community (1). He is also aware that the question of the
availability of the minutes of ECB monetary policy meetings is
a subject of public interest and discussion and therefore
considers it important that European citizens should be clearly
informed of the rules which would apply to any requests from
the public for access to such minutes.

The Ombudsman therefore wrote again to the ECB, noting
that Article 10.4 of the Statute of the ESCB/ECB provides that
the proceedings of the meetings of the Governing Council of
the ECB shall be confidential, but that the Governing Council
may decide to make the outcome of its deliberations public.
The Ombudsman also pointed out that although the preamble
to the ECB’s decision ECB/1998/12 refers to the above-
mentioned Article 10.4 of the Statute of the ESCB/ECB, the
Decision does not expressly state that it applies to the minutes
of monetary policy meetings.

The Ombudsman therefore requested the ECB to clarify the
rules which would apply to any requests from the public for
access to such minutes.

The ECB’s reply

In its reply, the ECB pointed out that the draft recommen-
dations made to the EMI in the Ombudsman’s previous own-
initiative inquiry (616/PUBAC/F/IJH) concerned only adminis-
trative documents.

The ECB also stated that Article 10.4 of the Statute of the
ESCB/ECB ‘defines the limits of transparency according to the Treaty,
in particular establishing clearly the confidentiality of the proceedings.’

As regards the scope of application of decision ECB/1998/12,
the ECB referred to Article 1.1 of the decision which reads:

‘the public shall have access to documentation and the archives
of
in
the ECB with regard to administrative documents
accordance with the provisions of this decision’.

contained

document’

The ECB also referred to the definition of the term ‘administrat-
ive
decision
ECB/1998/12 (‘any record… which relates to the actual
organisation and functioning of the ECB’) and expressed the
view that this ‘clearly does not include minutes of Governing Council
meetings on monetary policy issues’.

in Article 1.2 of

The ECB also informed the Ombudsman of the publication of
decision ECB/1998/12 in the Official Journal.

The Ombudsman’s response

The Ombudsman responded to the above reply from the ECB
by addressing a further letter to the President of the ECB.

As regards the ECB’s remarks concerning the Ombudsman’s
earlier own-initiative inquiry, the Ombudsman pointed out
that, subsequent to the closure of that inquiry, the Court of
First Instance has drawn a clear distinction between, on the
one hand, questions of competence to review the legality of
measures adopted and, on the other hand, competence in the
matter of public access to those measures (2).

As regards the ECB’s claim that Article 10.4 of the Statute of
the ESCB/ECB ‘defines the limits of transparency according to the
Treaty, in particular establishing clearly the confidentiality of the
proceedings’, the Ombudsman pointed out that in fact the
Article expressly foresees the possibility that the Governing
Council ‘may decide to make the outcome of its deliberations public’.

As regards the ECB’s claim that the definition of the term
administrative document in its decision ECB/1998/12 (‘any
record ... which relates to the actual organisation and func-
tioning of the ECB’) does not include minutes of Governing
Council meetings on monetary policy issues, the Ombudsman
made the following points:

‘The Ombudsman is not aware of any other rules adopted by
the ECB concerning public access to minutes of Governing
Council meetings on monetary policy issues. In the absence of
other rules, exclusion of such minutes from the ambit of the
ECB’s decision of 3 November 1998 would appear to operate
as an exception to the general principle, referred to in [the
aforementioned decision] of giving citizens the greatest possible
access to information.

The Ombudsman notes that the Decisions of the Council and
the Commission on public access to documents create rights of
access to the documents of those institutions and that the correct
interpretation of those Decisions is a matter of law, on which
the highest authority is the Court of Justice. The Ombudsman

(1) Article 12.1 of the Statute of the ESCB/ECB.

(2) Case T-174/95, Svenska Journalistförbundet v Council [1998] ECR II-

2289.

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also notes the recent case-law which establishes that, where a
general principle is established and exceptions to that principle
are laid down, those exceptions must be construed and applied
strictly, so as not to frustrate the application of the general
principle (1).

1.3. There is therefore no evidence of maladministration by
the ECB in relation to the adoption of rules on public
access to documents.

It does not seem obvious in this context that the minutes of
Governing Council meetings on monetary policy issues could be
considered to fall outside the category of documents “related to
the functioning of the ECB”. The ECB’s Decision of 3 November
1998 should therefore, in the light of the above-mentioned
case-law, also be considered to apply to minutes of Governing
Council meetings on monetary policy issues.’

The Ombudsman concluded by pointing out that it is for the
Bank to apply its rules, including the exceptions provided for
in Article 4 of its decision ECB/1998/12, to such requests as it
may receive from the public for access to documents.

2. Making the rules easily available to the public

2.1. The Ombudsman informed the European Central Bank
of a draft recommendation, made in a previous own-
initiative inquiry, that rules on access to documents
should be made easily available to the public.

2.2. The ECB informed the Ombudsman that its decision
Journal of

ECB/1998/12 is published in the Official
28 April 1999, L 110 p. 30.

2.3. There is therefore no evidence of maladministration by
the ECB in relation to making its rules on access to
documents easily available to the public.

The decision

Conclusion

1.

The adoption of rules on public access to documents

1.1. The Ombudsman informed the European Central Bank
of a draft recommendation, made in a previous own-
initiative inquiry, that Community institutions and bodies
should adopt rules concerning public access to docu-
ments. In reply, the ECB informed the Ombudsman of its
decision ECB/1998/12 of 3 November 1998 concerning
public access to documentation and the archives of the
European Central Bank.

1.2. The Ombudsman is aware of the case-law establishing
that, where a general principle is established and excep-
tions to that principle are laid down, those exceptions
must be construed and applied strictly, so as not to
frustrate the application of the general principle (1). The
Ombudsman considers that, in the light of the above-
mentioned case-law, ECB decision ECB/1998/12 should
be considered also to apply to the minutes of meetings
on monetary policy issues. Naturally it is for the Bank to
apply its decision ECB/1998/12, including the exceptions
provided for in its Article 4, to such requests as it may
receive from the public for access to documents.

In view of the above, there appeared to be no maladminis-
tration by the European Central Bank. The Ombudsman
therefore closed own-initiative inquiry OI/1/99/IJH as regards
the ECB.

Decision closing own-initiative inquiry OI/1/99/IJH as regards the Com-
munity Plant Variety Office

The inquiry

On 7 April 1999, the Ombudsman wrote to the President of
the Community Plant Variety Office to request information
about its situation as regards public access to documents;
whether it has adopted rules on the matter and if so whether
the rules are easily available to the public.

The opinion of the Community Plant Variety Office

(1) Case T-105/95 WWF UK v Commission [1997] ECR II-313; Case
T-124/96 Interporc v Commission [1998] ECR II-231; Case
T-188/97 Rothmans International v Commission,
judgement of
19 July 1999.

The President of the CPVO informed the Ombudsman that the
legislation governing its activities specifies which documents
and material are to be open to public inspection and which
are to be made available only to persons able to satisfy the
Office that they have a ‘legitimate interest’ therein.

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the CPVO also stated that

The President of
the Office
had prepared a draft Decision of its Administrative Council
establishing rules in relation to public access to documents
of the Office, based closely on the text of the European
Commission’s rules. The draft decision would be presented to
Administrative Council of the CPVO at its next meeting, in
September 1999. Once adopted, the Decision would be made
generally available and publicised on the CPVO website.

On 23 November 1999, the President of the CPVO forwarded
to the Ombudsman a copy of the Decision of the Administrat-
ive Council of
the CPVO establishing rules on working
methods of the CPVO in relation to public access to documents
of the Office.

The Ombudsman carefully examined the Decision, which
consists of eight Rules.

Rule 1 defines ‘document’ to mean ‘any existing written
text produced by the Office in whatever medium which is
not already covered by existing legal provisions allowing
access or requiring confidentiality’. A footnote states that
‘Where a document held by the Office was not produced
by the Office but by a natural or legal person, a Member
State, another Community institution or any other
national or international body, the application must be
sent to the author’.

Rule 2 provides for applications to be addressed to the
Office in writing. Applications must be sufficiently precise
to enable the document in relation to which access is
sought
appropriate
accompanied by the appropriate fee (see Rule 5 below).

identified and where

to be

Rule 3 establishes the procedure for dealing with appli-
cations. The decision to grant or refuse access must be
made within one month. In the case of a refusal, the
applicant has one month in which to apply to the
Chairman of the Administrative Council for review of the
refusal, failing which the application is deemed to have
been withdrawn. If the Administrative Council upholds
the refusal of access, the decision must give reasons
and inform the applicant of possibilities of redress by
complaint
to the European Ombudsman or to the
Commission under article 44(3) of Council Regulation
(EC) No 2100/94.

administration, reasons should also be given for an initial
refusal of access (1).

Rule 4 provides that where access is granted, the applicant
may either consult the document at the premises of the
Office, by prior arrangement, or receive a copy.

Rule 5 provides for a flat rate fee of € 5 for a copy of a
document of up to 10 pages, and an additional fee of €
0.5 for each additional page.

Rule 6 provides for exceptions, which are in substance
the same as those contained in the Council and Com-
mission rules on access to documents.

Rule 7 provides for the rules to be published in the
Official Journal at the earliest opportunity following their
entry into force.

The Ombudsman notes
the CVPO has a website
that
(http://www.cpvo.fr) where the rules could also be published.

Rule 8 provides that the rules shall apply from the day
following the date of the meeting of the Administrative
Council at which they are established.

The Ombudsman understands that the Decision of the Admin-
istrative Council of the CPVO was adopted at its meeting of
28 and 29 September 1999 and that the rules therefore came
into force on 30 September 1999.

The decision

1.

The adoption of rules on public access to documents

1.1. The Ombudsman informed the Community Plant Variety
Office (CPVO) of a draft recommendation, made in a
previous own-initiative inquiry, that Community insti-
tutions and bodies should adopt rules concerning public
access to documents.

1.2. The CPVO informed the Ombudsman of legal provisions
which provide for the possibility of public inspection of:

— the Register of Applications for Community Plant Variety

Rights;

The Ombudsman notes that there is express provision for
reasons to be given for a refusal of access only on appeal to
the Administrative Council. However, as a matter of good

(1) See Article 18 of the European Ombudsman’s Code of Good

Administrative Behaviour.

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— the Register of Community Plant Variety Rights; and

— in case of a legitimate interest, documents relating to
applications or to variety rights already granted (1).

1.3. The CPVO also informed the Ombudsman of the Decision
adopted by its Administrative Council at its meeting on
28 and 29 September 1999. The Decision establishes
rules on working methods of the CPVO in relation to
public access to documents produced by the Office.

1.4. There is therefore no evidence of maladministration by
the CPVO in relation to the adoption of rules on public
access to documents.

Although it appears to have no equivalent in comparable
national legislation, it seems that the present state of Com-
munity law allows Community institutions and bodies to
include the authorship rule in their rules on public access to
documents. The Ombudsman notes, however, that the Court
of First Instance has held that the authorship rule as adopted
by the Commission must be construed and applied strictly, so
as not to frustrate the application of the general principle of
transparency (2).

The Ombudsman also notes that the Regulations governing
the CPVO already provide for access to certain categories of
documents (relating to applications for grant of a Community
Plant variety right or to variety rights already granted) which
include documents of which the CPVO is not the author.

2. Making the rules easily available to the public

Draft recommendations to Europol in own initiative inquiry
OI/1/99/IJH

2.1. The Ombudsman informed the Community Plant Variety
Office of a draft recommendation, made in a previous
own-initiative inquiry, that rules on access to documents
should be made easily available to the public.

The inquiry

2.2. The Decision adopted by the Administrative Council of
the CPVO requires the rules to be published in the Official
Journal at the earliest opportunity following their entry
into force.

2.3. There is therefore no evidence of maladministration by
the CPVO in relation to making its rules on access to
documents easily available to the public.

the own-initiative

By letter dated 30 April 1999, the Ombudsman informed
inquiry launched under
Europol of
Article 195 EC (3). He requested information about the situ-
ation of Europol as regards public access to documents; in
particular whether Europol has rules on the matter and, if so,
whether the rules are easily available to the public.

Conclusion

Europol’s opinion

In view of the above, there appears to be no maladministration
by the Community Plant Variety Office. The Ombudsman
therefore closed own-initiative inquiry OI/1/99/IJH as regards
the Office.

Further remarks

The Ombudsman notes that the rules adopted by the Com-
munity Plant Variety Office, like those of the Council and the
Commission, limit the possibility of public access to docu-
ments of which it is not the author (the ‘authorship rule’).

(1) Council Regulation OJ 2100/94, OJ 1994 L 227, p. 1, Articles
87-88; Commission Regulation (CE) No 1239/95, OJ 1995 L 121,
p. 37, Title V, Articles 82-86. NB These Regulations also make
provision for the possibility of public inspection of the growing
of varieties for the purposes of their technical examination or for
purpose of verifying their continuing existence.

In its opinion, dated 15 July 1999, Europol
Ombudsman of

informed the

— the general rules concerning the confidentiality of
information processed by Europol, laid down by the
Council (4) acting under Article 31 (1) of the Europol
Convention, (5) and

(2) Case T-188/97 Rothmans International v Commission, Judgement of

19 July 1999, paragraph 55.

(3) Article 41 of the Treaty on European Union, as amended by the
Treaty of Amsterdam, provides for Article 195 to be one of the
Articles of the EC Treaty which shall apply to the provisions
relating to the areas referred to in Title VI of the Treaty on
European Union (police and judicial cooperation in criminal
matters). Title VI of the TEU includes the provisions relating to
Europol and to the Council’s promotion of cooperation through
Europol.

(4) Council Act of 3 November 1998 adopting rules on the confiden-

tiality of Europol information, OJ 1999 C 26, p. 10.

(5) 1995 OJ C 316/1.

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— the Security Manual, foreseen by Article 6 of the
above-mentioned general rules, which was adopted
by Europol’s Management Board on 28 January
1999.

The Ombudsman also considered the timescale proposed by
Europol for the adoption of rules to be reasonable, taking into
account that it formally took up its activities only on 1 July
1999 (2). He therefore requested Europol to provide further
information as soon as possible about its progress towards the
adoption of rules before the end of 1999.

Europol’s opinion also referred to provisions of the Europol
Convention which give individuals the right of access to data
relating to them stored by Europol (1) and to the efforts which
Europol makes to inform the public about its activities, in
particular through its website (http://www.europol.eu.int).

Europol’s opinion, signed by its Director, expressed willingness
to consider the possibility for Europol to adopt general rules
on public access in the near future and to make those rules
publicly available. The Director stated that in order to achieve
this he would discuss the issue with the Council Presidency
with a view to bringing the matter to the attention of the
Europol Management Board. He undertook to inform the
Ombudsman of progress before the end of 1999.

Further inquiries

After carefully considering Europol’s opinion, the Ombudsman
addressed a further letter to its Director on 24 September
1999, welcoming Europol’s positive attitude towards the
adoption of rules on public access to documents.

The Ombudsman pointed out that, for any modern European
administration, it is important to have the confidence and the
support of citizens. For Europol, such confidence is even more
important in carrying out its mission to make a significant
contribution to the European Union’s law enforcement action
against organised crime, with a particular emphasis on the
criminal organisations involved. It is therefore vital that from
the beginning of its activity Europol should comply fully with
the principles of good administrative behaviour.

The Ombudsman noted that the very nature of police work
necessarily involves handling information and documents
which, in the interests of citizens, must be treated confiden-
tially. However this fact should not prevent Europol adopting
rules on public access to documents, adapted to its own
situation, as other institutions and bodies have done.

On 24 November 1999, Europol informed the Ombudsman
that its Management Board is in agreement that rules on public
access to documents should be established. The Management
Board has asked Europol to prepare proposals based on the
rules already established by other European Union institutions,
notably the Council. There was also agreement that particular
attention should be paid to ensuring the compatibility of
Europol’s rules with the rules of other institutions to which
Europol documents may be sent and to ensuring that,
in
principle:

(i)

no access will be granted to personal data processed
by Europol, since the Convention already specifies
the procedures to be followed in such cases, nor
access to personal data concerning Europol per-
sonnel;

(ii) no access will be granted to protectively marked

documents;

(iii) no access will be granted to any information which

may jeopardise ongoing investigations.

As regards (i), it should be recalled that the Ombudsman’s own-
initiative inquiry is limited to rules on access to documents that
are not already covered by existing legal provisions allowing
access or requiring confidentiality.

As regards (ii) and (iii), the Ombudsman notes that Europol’s
Management Board has referred to the existing Council rules
on public access to documents as a possible model for drafting
rules for Europol. The Ombudsman also notes that Article 4
of the Council rules specifically mentions ‘investigations’ as an
element of the mandatory public interest exception to the right
of access.

The Ombudsman also notes that Europol’s letter of 24 Nov-
ember 1999 does not contain a definite timetable for the
adoption of rules.

(1) Europol Convention, Article 19.

OJ 1999 C 185, p. 1.

(2) Communication concerning the taking up of activities of Europol,

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The decision

1.

The adoption of rules on public access to documents

1.1. The Ombudsman informed the European Police Office
(Europol) of a draft recommendation, made in a previous
own-initiative inquiry carried out under Article 195 EC,
that Community institutions and bodies should adopt
rules concerning public access to documents, within three
months. At the same time, the Ombudsman informed
Europol of the provisions of Article 41 TEU, as amended
by the Treaty of Amsterdam, according to which Article
195 is one of the Articles of the EC Treaty which shall
apply to the provisions relating to the areas referred to in
Title VI TEU (police and judicial cooperation in criminal
matters).

1.2. Europol

informed the Ombudsman of existing rules
which govern the confidentiality of information proces-
sed by Europol and individuals’ rights of access to data
relating to them stored by Europol. Europol also informed
the Ombudsman that its Management Board is in agree-
ment that rules on public access to documents should be
established and that the Management Board has asked
Europol to prepare proposals based on the rules already
established by other European Union institutions, notably
the Council.

1.3. During the Ombudsman’s inquiry,

in which Europol
cooperated, no evidence was presented that it would be
impractical or unduly burdensome for Europol to comply
fully with the principles of good administrative behaviour
by adopting, and making easily available to the public,
rules governing public access to documents. It appears
that Europol’s Management Board favours the adoption
of rules based on those adopted by other European Union
institutions, notably the Council.

2.

Timetable for the adoption of rules

2.1. The Ombudsman informed Europol that the draft rec-
ommendations made in the above-mentioned previous

own-initiative inquiry established a deadline of three
months for the adoption of rules by the institutions and
bodies concerned. During the Ombudsman’s inquiry, in
which Europol cooperated, no evidence was presented
that it is necessary to envisage a longer timetable for the
adoption of rules by Europol.

2.2. In its opinion dated 15 July 1999,

it appeared that
Europol envisaged the adoption of rules on public access
to documents before the end of 1999, but
further
information provided by Europol on 24 November 1999
contains no definite timetable for the adoption of rules.

2.3. The principles of good administration require that
decisions should be made within a reasonable time. To
avoid unnecessary delay, it is therefore appropriate to
establish a definite timetable for the adoption of rules.

Draft recommendations

In view of the above, the European Ombudsman makes the
following draft recommendations to Europol:

1.

2.

Europol should adopt rules concerning public access to
documents within three months. The rules could be based
on those already adopted by the Council, including the
exceptions contained therein.

The rules should apply to all documents that are not
already covered by existing legal provisions allowing
access or requiring confidentiality.

3.

The rules should be made easily available to the public.

Europol will be informed of these draft recommendations. In
accordance with Article 3 (6) of the Statute of the Ombuds-
man, Europol shall send a detailed opinion within three
months (i.e. by 31 March 2000). The detailed opinion could
consist of acceptance of the Ombudsman’s decision and a
description of the measures taken to implement the rec-
ommendations.

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4. RELATIONS WITH OTHER INSTITUTIONS OF THE EUROPEAN UNION

The Ombudsman maintains a constant dialogue with the other
institutions and bodies of the European Union. In order to
secure the rights of European citizens, regular contacts are
necessary to ensure an effective cooperation, good working
relations and mutual trust.

On 2 March, Mr Söderman was invited to a meeting with
Mr Carlo Trojan, Secretary General of the European Com-
mission, Mr Jürgen Trumpf, Secretary General of the Council
of the European Union and Mr Julian Priestley, Secretary
General of
the European Parliament. They discussed the
question of a code of good administrative behaviour.

On 24 March, Mr Söderman gave a speech at an inter-
parliamentary conference on the creation of an area of
freedom, security and justice organised by the European
Parliament’s Committee on Civil Liberties and Internal Affairs,
with the participation of national Members of Parliament and
non-governmental organisations. The subjects discussed were
European civil
immi-
gration, asylum, visas, police and judicial co-operation. Other
speakers included Mrs Gradin, Member of the Commission,
Mrs D’ancona, Chairman of the Committee, the Ministers of
Justice and Interior of Germany and Finland and Mr Fennelly,
Advocate General at the European Court of Justice.

rights, anti-discrimination policies,

4.1. THE EUROPEAN PARLIAMENT AND THE COMMITTEE

ON PETITIONS

On 13 January, Mr Söderman, accompanied by Mr Peter Dyr-
berg and Mr Ian Harden met with the College of Quaestors
who invited him to an exchange of views. They discussed the
possibility of an internal complaints’ procedure for Members
of the European Parliament.

On the same day, Mr Söderman and Mr Harden met with MEP
Edith Müller, the rapporteur for the Ombudsman’s budget for
the year 2000.

Also on 13 January, Mr Söderman and Mr Harden met with
Mr Christian Cointat, Director General of DGV of the European
Parliament and Mrs Brigitte Nouaille-Degorce, Head of the
Personnel Division (DGV).

On 14 January, Mr Söderman and Mr Harden had a meeting
with President Gil-Robles. They discussed the presentation of
the Ombudsman’s 1998 Annual Report to the European
Parliament.

On 14 April, the Ombudsman presented his Annual Report
for the year 1998 to the European Parliament during its
plenary session in Strasbourg. (see 6.1)

On 26 April, Mr Söderman participated in a conference on
transparency and access to documents entitled ‘Opening doors
for democracy in Europe’. The conference was organised
jointly by the PSE, ELDR and Green Group of the European
Parliament as well as the European Federation of Journalists.
Mr Söderman gave the keynote address at the first session on
the theme ‘Openness means accountable governance’.

On 5 May, Mr Söderman and Mr Harden met with Mr Lo´ pez
Veiga, Director General of DG 8 and Mr Hellot. They discussed
the renewal of
the cooperation agreements between the
European Parliament and the Ombudsman.

On 10 June, Mr Söderman participated in an information
seminar organised by DG V of the European Parliament for
newly appointed A and LA staff in Luxembourg and spoke
about his role and work.

On 8 February, Mr Harald Rømer, Director General of DG I
met with the Ombudsman. They discussed issues relating
to the transition period between the first and the second
Ombudsman mandates.

On 14 July, Mr Söderman accompanied by Ms Vicky Kloppen-
burg had an exchange of views with Mr André Middelhoek,
the Chairman of the Committee of Independent Experts. They
discussed recent developments in their respective offices.

On 17 February, Mr Söderman presented his Annual Report
for the year 1998 to the Committee on Petitions in Brussels.

On 15 July, Mr Söderman met with Mr Julian Priestley, Sec-
retary-General of the European Parliament.

On 11 March, Mrs Laura Viqueira and Mrs Ildegarda De
Simone Diehl of DG V visited the Ombudsman and discussed
ways of informing newly recruited civil servants on the role of
the European Ombudsman in the framework of training
programmes.

On 21 July, Mr Söderman and Mr Harden had a meeting with
Mr Chevallier, the head of the Paris Information Office of the
European Parliament. They discussed the details of a press
conference scheduled to take place in Paris in September.

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On 22 July, Ms Loyola De Palacio, (Member of the European
Parliament at the time) visited the Ombudsman’s office and
Mr Söderman explained his work to her.

On 28 September, Mr Söderman presented the results of his
first mandate to the Committee on Petitions of the European
Parliament and distributed a booklet summarising his achieve-
ments.

On 19 October,
in the framework of his candidacy for
the election of European Ombudsman, Mr Söderman was
auditioned by the Committee on Petitions of the European
Parliament.

On 14 December, Mr Söderman was invited by President
Nicole Fontaine to attend the inauguration by French President
Jacques Chirac of the new ‘Louise Weiss’ building of the
European Parliament.

4.2. THE EUROPEAN COMMISSION

On 12 January, Mr Söderman and Mr Harden met with
Mr Carlo Trojan, Secretary General of the European Com-
mission as well as Mr Jean-Claude Eeckhout and Mr Klaus
Ebermann, Directors at the General Secretariat. They discussed
the code of conduct on good administrative behaviour.

Mr Söderman met with President Jacques Santer and Mrs
Diane Schmitt, Member of his Cabinet, on 10 February. They
discussed the Commission’s draft code of conduct for its
officials.

Mr Söderman informed the delegates that his concerns about
enforcement of Community law went beyond the issue of
the European Ombudsman
Article 169 procedures. Thus,
network and better information campaigns were to be seen as
corollary initiatives which would enhance Community law
enforcement at national level.

Following the speech, Mr Söderman answered questions put
by national delegates. The President of the Meeting from
Commission DG XV then submitted remarks about the con-
tinuing efforts to implement the improved procedural rules
proposed in the Ombudsman’s own-initiative inquiry into
Article 169.

On 14 July 1999, Mr. Jacob Söderman accompanied by Ms
Vicky Kloppenburg met with Mr. Per Brix Knudsen, acting
director of OLAF, the newly established European Anti Fraud
Office. The objectives and the tasks of the new office were
discussed.

Also on 14 July, Mr Söderman met with Mrs Anita Gradin,
Member of the Commission and later that day with Mr Jacques
Santer, President of the European Commission.

On 15 July, a meeting took place between Mr Söderman
and Mr Carlo Trojan, the secretary general of the European
Commission.

the Commission paid a visit

Mr Horst Reichenbach, Director General of the Personnel
of
to the Ombudsman on
17 November. Mr Eeckhout, director at the secretariat general
of the Commission as well as Mr Harden and Mr Grill of the
Ombudsman’s office attended the meeting.

4.3. THE COUNCIL OF THE EUROPEAN UNION

Mr Söderman was invited to give a speech about the Com-
mission’s Article 169 procedure for dealing with complaints
against Member States at a ‘Package Meeting’ organised by
DG XV of the European Commission on Friday 12 February
1999. Package meetings are held regularly and are intended to
provide a forum for EU and national officials to encourage
discussions on the correct implementation of Community law.

On 23 July, Mr Söderman accompanied by Mr Verheecke
attended the Working Party on Information organised by the
Council of the European Union under the Finnish Presidency.
Mr Söderman presented his achievements in the field of
transparency as well as the code of good administrative
behaviour. After the meeting, Mr Söderman had an exchange
of views with the Finnish Ambassador to the E.U., Mr Antti
Satuli.

Mr Söderman provided a general introduction on the European
Ombudsman, then explained to the audience his views on
Article 169 procedures. He emphasised that Article 169 com-
plainants cannot be treated as mere sources of information,
although their role in bringing Member State infringements to
the Commission’s attention is undisputed. Mr Söderman then
outlined the recent reform of Article 169 procedures, put in
motion
inquiry
by
(303/97/PD).

the Ombudsman’s

own-initiative

4.4. THE COURT OF JUSTICE OF THE EUROPEAN COM-

MUNITIES

On 19 October, Mr Jacob Söderman accompanied by Mr Hard-
en spoke on ‘transparency in the Community institutions’ at a
colloquium held at the Court of First Instance in Luxembourg

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to mark the tenth anniversary of the Court. The session on
transparency was presided by John Cooke, President of Chamb-
er at the Court of First Instance. Other speakers included
Mr Jean-Louis Dewost, director-general of the Commission’s
legal service, Mr Garzo´ n Clariana, jurisconsult of the European
Parliament and Mr Jean-Claude Piris, director-general of the
Council legal service. The colloquium was attended by the
President of the Court of Justice Mr Gil Carlos Rodrı´guez
Iglesias, the President of the Court of First Instance Mr Bo
Vesterdorf, as well as other judges and staff of the Court of
Justice and Court of First
Instance and members of the
legal profession. Mr Söderman’s speech is available on the
Ombudsman’s website in English, French and German.

4.5. THE ECONOMIC AND SOCIAL COMMITTEE

On 15 October 1999, Mr Jacob Söderman accompanied by
Ms Vicky Kloppenburg attended the ‘First Convention of Civil
Society organised at European level’ by the European Economic
and Social Committee in Brussels where Mr. Söderman gave a
presentation on the role and the tasks of the Ombudsman. The
aim of
the conference was to specify the role and the
contribution which civil society, and its diversity, can have in

the building of Europe. The conference was opened by Mrs
Beatrice Rangoni Machiavelli, president of the Economic and
Social Committee. The debates were introduced by Jacques
Delors, former president of the European Commission. Other
key note speakers included Mrs. Loyola de Palacio, vice
president of the European Commission as well as Mrs. Sinikka
Mönkäre, Finnish Minister for employment on behalf of the
president in office of the Council of the European Union.

4.6. THE COMMITTEE OF THE REGIONS

On 3 December 1999, Mr. Jacob Söderman accompanied by
Ms Vicky Kloppenburg attended a meeting on citizens’ rights
organized by Commission 7 of the Committee of the Regions
in Brussels. The aim of the conference which was chaired by
Ms Irma Peiponen was to address different aspects of citizens’
rights and to discuss further developments of Union citizen-
ship. Mr Söderman gave a presentation on the role and tasks
of the European Ombudsman. He referred to his Code of Good
Administrative Behaviour in which he defines the rights
and the duties of civil servants when dealing with citizens.
Mr Söderman also stressed the importance of openness and
transparency.

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5. RELATIONS WITH NATIONAL OMBUDSMEN AND SIMILAR BODIES

5.1. THE LIAISON NETWORK

ombudsmen’s websites

The liaison network established following the 1996 Strasbourg
seminar has been further developed. Links between the
national
European
Ombudsman’s website have been created. An E-mail discussion
group was set up in order to ensure a quick and efficient
exchange of
information and to facilitate communication
between the members of the liaison network. A third liaison
letter was published and distributed in July 1999.

and

the

Ian Harden visited the office of

On 20-21 January,
the
Médiateur de la République, Mr Bernard STASI, to plan a joint
seminar for national ombudsmen and similar bodies in Paris,
in September 1999. During the visit, he also met the Délégué
Général, Mr Gérard Delbauffe, the Secretary General, Mr Clau-
de Desjean and Mr Philippe Bardiaux (external
relations
adviser). He also met the chargés de mission for the different
sectors of work of the Médiateur to inform them about the
work of the European Ombudsman and discuss subjects of
mutual interest.

The seminar for national ombudsmen and similar bodies
entitled ‘Ombudsmen, the Amsterdam Treaty and European
Integration’ took place in Paris on 9 and 10 September. All
15 Member States were represented (see 6.1).

5.2. COOPERATION IN DEALING WITH COMPLAINTS

During 1999, 2 queries from national Ombudsmen were dealt
with by the European Ombudsman. One was sent by the Irish
Ombudsman and concerned the repayment of the milk super-
levy, the other was sent by the Danish Ombudsman and was
related to social security issues.

5.3. COOPERATION WITH REGIONAL OMBUDSMEN AND

SIMILAR BODIES

On 14 June, a delegation of Members of the Petitions’ Com-
mittee of the German Landtag of Nordrhein-Westphalen visited
the Ombudsman’s office in Strasbourg and had an exchange
of views with Mr Söderman.

A delegation of the Petitions’ Committee of the German
Landtag of Schleswig Holstein paid a visit to the Ombudsman
in Strasbourg on 30 June.

Conference of regional ombudsmen and committees on
petitions of the European Union, florence

On 11 and 12 November 1999, Mr. Jacob Söderman partici-
pated in the second Conference of Regional Ombudsmen and
the European Union which
Committees on Petitions of
succeeded to the one held in Barcelona in 1997, further to the
European Ombudsman’s initiative. He was accompanied by
Mr Alessandro Del Bon and Ms Ida Palumbo.

The Conference in Florence was organised by the office of the
Regional Ombudsman of Tuscany, under the guidance of six
Ombudsmen of the European Union: Mr. Bovesse from the
from the Catalan region,
Walloon region, Mr. Can˜ ellas
Mr. Contini
from Sardinia, Mr. Fantappié from Tuscany,
Mr. Galle from Rheinland-Pfalz and Mr. Sciacchitano from the
Lombard region. The reports presented by several Regional
Ombudsmen, and Prof. Antonio Papisca from the University
of Padova, tackled both the daily work of Regional Ombuds-
men in the EU, and the forthcoming challenges with regard to
the effects of the European integration on their work. A final
resolution creating a Permanent Conference, with meetings to
be held at least every two years, and foreseeing to establish
regular contacts with the European Ombudsman and the
European Parliament, was adopted at the end of the Confer-
ence.

Before the conference, on 10 November 1999, Mr. Söderman
met with Prof. Angelo Passaleva, President of the Regional
Council of Tuscany. On this occasion, as announced during
the press conference that followed, the European Ombudsman
underlined how important it would be for Italy to have a
national Ombudsman, which for regional and local Ombuds-
men ‘should be considered a friend rather than a boss in Rome’.
Following the invitation of Prof. Chiti, Mr. Söderman then
gave a lecture about his work at the University of Political
Sciences of Florence.

On 10 May, Mr Ullrich Galle, Ombudsman (Bürgerbeauftragte)
of Rheinland-Pfalz paid a visit to Mr Söderman. They discussed
the 25th Anniversary celebration of the German Ombudsman
as well as a meeting of all regional ombudsmen scheduled to
be held in November.

5.4. COOPERATION WITH NATIONAL OMBUDSMEN IN

THE ACCESSION STATES

A seminar on ‘Ombudsmen and the law of the European
Union’, organised jointly by the European Ombudsman and

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the Slovenian Human Rights Ombudsman Ivan Bizjak, was
held in Ljubljana, Slovenia, 6-8 June 1999. The seminar was
attended by the Parliamentary Commissioner for the rights of
national and ethnic minorities of Hungary, Dr Jenö Kaltenbach;
the Ombudsman of Cyprus, Mrs Eliana Nicolaou; the Ombuds-
man of Malta, Mr Joseph Sammut; deputy Ombudsman of
Romania, Mrs Ruxandra Saba˜rea˜nu; the Ombudsman of Lithu-
ania, Mr Albertas Valys; the Ombudsman of Poland, Professor
Adam Zielin˜ ski; as well as representatives from Estonia, Latvia,
the Slovak republic and the European Union delegation to
Slovenia.

Speakers at the seminar included Jacob Söderman on ‘the
Maastricht Treaty and European citizens’, Judge Leif Sevo´ n of
the Court of Justice of the European Communities, who spoke
on ‘The interpretation and application of Community law’ and

Ian Harden who spoke on ‘The Amsterdam Treaty and the
National Ombudsmen’. The participants delivered country-
specific reports and discussed the role of ombudsmen in the
accession process.

A report on the seminar, prepared by the Ombudsman of
Cyprus Mrs Eliana Nicolaou concluded that the seminar had
made a very constructive contribution to preparation for
accession and that more such seminars should be organised in
the future. The participants welcomed the proposal by the
deputy Ombudsman of Romania, Mrs Ruxandra Saba˜rea˜nu to
host a follow-up seminar in 2000.

Papers delivered at the seminar and the final report are available
in English on the websites of the European Ombudsman
(http://www.euro-ombudsman.eu.int)
Slovenian
Ombudsman (http://www.varuh-rs.si).

and

the

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6. PUBLIC RELATIONS

The information strategy of the European Ombudsman has
two objectives. The first is to inform the people who might
have a real reason to complain about maladministration in the
activities of a Community institution or body of their right to
complain to the European Ombudsman and how to do so.

Emphasis was placed on the Ombudsman’s use of new
technologies in the field of information and communication
that has brought the citizens closer to the administration.

The second objective is to improve relations between the
Union and its citizens by informing the broader public of
the Ombudsman’s role in helping to realize the Union’s
commitment to open, democratic and accountable forms of
administration. At the same time, it is essential not to create
false expectations that might simply result in an increase in
the number of complaints outside the European Ombudsman’s
mandate.

The information strategy has therefore mainly focused on
targeting accurate information to groups of potential com-
plainants. At the same time, both conventional publications
and the Ombudsman’s website are intended to be interesting
and lively to allow them to be used for educational purposes,
particularly for young people learning about Europe.

6.1. HIGHLIGHTS OF THE YEAR

THE OPEN DAY IN BRUSSELS

On 8 May 1999, the European Union institutions and bodies
arranged their annual open day in the Parliament’s buildings
in Brussels.

The European Ombudsman’s stand was located next to the
Court of Justice’s and the Court of Auditors’ to make it easier
for visiting citizens to gain an overview over the EU’s three
primary supervisory bodies. Staff from the Brussels Office
explained the Ombudsman’s work to a great variety of visitors,
most of whom requested further information in the form of
brochures and reports (approximately one hundred and fifty
annual reports were requested, and many dozens of ‘Can he
help you’ brochures were handed out). The Brussels staff also
explained to several citizens the differences between the work
of
In
the Committee on Petitions and the Ombudsman.
addition, a citizen from a local interest organisation received
advice from a Legal Officer of the Brussels’ office and lodged a
complaint on the spot.

THE ANNUAL REPORT FOR 1998

SEMINAR OF NATIONAL OMBUDSMEN AND SIMILAR BODIES IN
PARIS, 9-10 SEPTEMBER 1999

The Annual Report of the European Ombudsman for the year
1998 was presented to the European Parliament at its plenary
session in Strasbourg on 14 April 1999. The session was
chaired by President Gil-Robles.

‘Ombudsmen, the Amsterdam Treaty and European Inte-
gration’

Reporting on behalf of the Committee on Petitions of the
Parliament, Mrs Laura De Esteban Martin congratulated the
Ombudsman on the report of his activities and for making it
available to the Parliament as well as to the citizens in a
transparent and rapid way.

The entering into force of the Amsterdam Treaty was an
opportunity for the national Ombudsmen and similar bodies
of the European Union to meet for the second time (the first
meeting was held in Strasbourg in 1996). The aim of these
meetings is to strengthen the links between the national
Ombudsmen and similar bodies thus enabling them to provide
a better service to the citizens in Europe.

Mrs De Esteban Martin welcomed the initiative of the Ombuds-
man towards the establishment of a code of good administrat-
ive behaviour, stating that such a code would improve the
relations between the public and officials and should be
comprehensible and accessible to the public. She also stated
that the Ombudsman should be given access to all the files
and documents of the institutions.

The seminar was jointly organised by Mr Jacob Söderman, the
European Ombudsman, and by Mr Bernard Stasi, the French
Ombudsman. All 15 Member States were represented as well
as members of the European Institutions. The total number of
participants was 56.

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The purpose of the seminar was to consider the impact for the
work of national ombudsmen and similar bodies of the entry
into force of the Amsterdam Treaty and, more generally, of
the ongoing European integration process. The Treaty of
Amsterdam foresees the development of the Union as an
area of freedom, security and justice, as well as enhanced
cooperation between the national administrations which are
responsible for the implementation of Community law and
policies in numerous fields.

The seminar had four working sessions: 1) Human Rights and
the EU; 2) Principles of Good Community Administration; 3)
Rights of Third-Country Nationals; 4) Free Movement of EU
Citizens. Each session was introduced by an expert Rapporteur.
Each participating delegation had also been invited to prepare
in advance a written contribution on two or more of the four
themes. During the seminar, most of the reports were available
in French and in English. Simultaneous interpretation in
English, French, German, Spanish and Italian were provided to
the participants.

During the seminar, two declarations were adopted unani-
mously by the national Ombudsmen and similar bodies of the
EU: the first declaration was taken on the initiative of the
Portuguese Ombudsman, Mr José Pimentel. In the light of the
dramatic events which were occurring in Eastern Timor, it
supports the efforts of the EU Governments to stop the breach
on the Human Rights in the region. The second declaration
reminds the EU Governments of the content of Resolution
85/13 of the Council of Europe concerning the links between
the Institution of the Ombudsman and the protection of
It was proposed by the Belgian Federal
Human Rights.
Ombudsman, Mr Pierre-Yves Monette.

An Official Press Conference was organised by the Information
Office of the European Parliament in Paris. The Conference
gave Mr Söderman and Mr Stasi the opportunity to remind of
the importance they attach to Human Rights and to the
cooperation between the national Ombudsmen.

6.2. CONFERENCES AND MEETINGS

GERMANY

Bonn

On 16 February, Mr Söderman visited the German Bundestag
in Bonn and met with Mrs Heidemarie Lüth, the newly elected
chairperson of the Committee on Petitions of the Bundestag.
They discussed their respective roles, general questions con-
cerning the right to complain and to petition as well as the
impact of new communication systems on their daily activities.

Cologne

On 27 April, Mr Söderman participated in a European Forum
in Cologne entitled ‘Eine europäische Charta der Grundrechte
— Beitrag zur gemeinsamen Identität’. The forum was organ-
ised jointly by the European Commission and the German
Ministry of Justice. Other speakers included Prof. Dr. Herta
Justice, Com-
Däubler-Gmelin, The German Minister of
missioner Anita Gradin, MEP Edith Müller and Prof. Dr. Günter
Hirsch, Judge at the European Court of Justice.

Leipzig

Mr Söderman was invited by the Europa Haus Leipzig on
3 May. The programme of his visit included a lecture at the
University, a meeting with the Rector and an interview with a
journalist. Mr Söderman also presented his work at a public
meeting that was followed by a lively debate.

On 4 May, Mr Söderman paid a visit to the Committee on
Petitions of the Landtag of Sachsen and had an exchange of
views with its chairman, Mr Thomas Mädler.

The Ombudsmen and similar bodies of the Union will meet
again in Brussels in 2001.

Mainz

ELECTION OF THE EUROPEAN OMBUDSMAN

Jacob Söderman was elected for a second term of office by the
European Parliament on 27 October.

After the announcement of his re-election by the President of
the European Parliament, Mr Söderman gave a press confer-
ence in which he presented the achievements of his first
mandate and outlined his plans for the second mandate.

On 27 May, Mr Söderman was invited to participate in a panel
discussion in Mainz organised to mark the 25th anniversary
of the institution of an ombudsman in the German land
Rheinland-Pfalz. The panel was chaired by Mrs Maria Von
Welser from the ZDF (Zweites Deutsches Fernsehen). The
other participants were Mr Kurt Beck, Prime Minister of
Rheinland-Pfalz, Mr Ullrich Galle, Ombudsman of Rheinland-
Pfalz, Mr Christoph Grimm, President of
the Landtag of
Rheinland-Pfalz, Mr Klaus Hammer, Chairman of the Com-
mittee on Petitions of the Landtag of Rheinland-Pfalz, Dr. Udo
Kempf, professor at the Institute for Social Sciences of the
Pädagogische Hochschule Freiburg and Mr Reuter from the
Committee on Petitions of the German Bundestag. The audi-
ence of around 60 people included distinguished representa-
tives of public life in Rheinland-Pfalz,
including the two
predecessors of Mr Galle.

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Bonn

THE UNITED KINGDOM

Ian Harden took part in the inaugural conference ‘Weltachsen
2000’ of the Centre for European Integration Studies and the
Centre for Development Research of the Rheinische Friedrich-
Wilhelms-Universität, Bonn 10-12 November 1999. The con-
ference had three themes: the universality of human rights; the
dialogue of cultures; global markets and the future of the state.
Speakers included Professor Olivier Blanchard, head of the
Economics Department of
the Massachusetts Institute of
Technology, Mary Robinson, United Nations Commissioner
for Human Rights, O´ scar Arias Sa´nchez, former president of
Costa Rica and Nobel Peace Laureate of 1987 and Lech Walesa,
former president of Poland and Nobel Peace Laureate of 1983.

THE NETHERLANDS

Maastricht

legal
On 4 & 5 February, José Martı´nez-Arago´ n, principal
officer, took part in a seminar entitled ‘Schengen: Still Going
Strong: Evaluation and update’, organised by the European
Institute of Public Administration in Maastricht. The course
sought to provide an update on the legal and political aspects
of the incorporation of Schengen into the European Union,
the prospects of finalising the incorporation process when the
Treaty of Amsterdam enters into force, and the implementation
of the Schengen’s regulatory framework. In this context, the
new powers granted to the European Ombudsman by the
Treaty of Amsterdam were discussed.

The Hague

Cambridge University

On 3 February, Ian Harden delivered a lecture on the work of
the European Ombudsman to staff and students at the Centre
for European Legal Studies, Cambridge University.

Reading University

Jacob Söderman delivered the opening address at a conference
on ‘Complaints and Complaint handling in the European
Union’, held at Reading University, 26-27 March. Other par-
ticipants included the British Ombudsman Mr Michael Buckley,
the Irish Ombudsman Mr Kevin Murphy, Mr Edward Newman,
Vice-President of the Committee on Petitions of the European
Parliament, John Fitzmaurice from the Secretariat General of
the Commission and professors Roy Gregory and Philip
Giddings who are carrying out research on complaint handling
in the European Union at the University’s Centre for Ombuds-
man Studies. Ian Harden was respondent to the paper of
Mr Fitzmaurice.

Sunningdale

Ian Harden and Olivier Verheecke attended the conference of
Institute of Administrative Sciences on
the International
Accountability in Public Administration: reconciling democracy,
efficiency and ethics, held at Sunningdale (UK) 12-15 July. They
presented the European Ombudsman’s draft Code of Good
Administrative Behaviour.

FINLAND

Helsinki

the new objective of

On 23 and 24 September, Ms. Vicky Kloppenburg attended an
International Conference on European Asylum and Immi-
gration Policy in The Hague. The purpose of the conference
was to discuss the effects of
the
Amsterdam Treaty which is for the Union to develop an area
of freedom, security and justice. The conference was chaired
by Professor Piet-Jan Slot, Professor at the University of Leiden
on the first day and by Mr. Nial Fennelly, Advocate General at
the EC Court of Justice on the second day. The topics discussed
included the security of residence and access to free movement
for settled legal immigrants, minimum standards for family
reunification, legal questions concerning the comprehensive
approach of the High Level Working Group on Asylum and
Migration, temporarily protecting displaced persons or offering
the possibility to start a new life in the European Union and
adjusting the Dublin Convention.

Mr Söderman visited the European Parliament’s information
office in Helsinki on 17 May. A press conference was organised
and Mr Söderman spoke about his activities and his latest
achievements to approximately 20 representatives of the Finn-
ish media.

Also on 17 May, Mr Söderman paid a visit to the Finnish
Chancellor of Justice. During his visit, he met with the staff of
the office and informed them about his work.

On 26 August, the Ombudsman visited the Parliamentary
Ombudsman Office in Helsinki and presented the Code of
good administration at a staff meeting.

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On 3 December 1999, Mr Ben Hagard visited the offices of
the Finnish Ombudsman and the Finnish Chancellor of Justice,
for meetings to discuss how to improve liaison between the
European Ombudsman and the national ombudsmen and
similar bodies. In particular, the increased role that the Internet
could play in facilitating exchange of information and debate
was examined. As well as meeting with the liaison officers and
the information officers in the two offices, Mr Hagard also met
with the Finnish Chancellor of Justice, Mr Paavo Nikula.

Vasa

The Ombudsman made an intervention at a meeting organised
by the Carrefour Ostrobothnia in Vasa on 23 August and
explained the remedies available for European citizens within
the EU administration.

Tampere

On 5 December 1999, Mr Söderman addressed the Citizens’
Agenda NGO Forum in Tampere, Finland, about the creation
of a Citizens’ Europe. His presentation, which highlighted the
work of the European Ombudsman and set out a number of
important issues to be addressed in building a service-minded
EU administration, formed the basis of a panel debate. Panel
members included Mr Timothy Clarke, Head of Unit at the
European Commission, Mrs Anne-Marie Sigmund, Member of
the Economic and Social Committee and Mr Ikka Kantola,
Bishop of Turku.

The closing session of the Forum was addressed by the Finnish
Prime Minister, Mr Paavo Lipponen and by the Portuguese
Secretary of State of European Affairs, Mr Francisco Manuel
Seixas da Costa.

The three-day Forum was attended by over 1 500 participants
from almost 50 countries. Most of the participants represented
national, European or international NGOs. The aim of the
Forum was to raise the profile of NGO issues in the week
before the EU Summit in Helsinki. Speakers at the Forum
included Mr Erkki Liikanen, Member of the European Com-
mission, Mrs Denise Fuchs, the President of the European
Women’s Lobby, and the Finnish author Mr Johannes Salmin-
en. The European Ombudsman was represented at the Forum
by Mr Ben Hagard.

speech on ‘The preventive activities of the European Ombudsman’.
Other speakers in the colloquy included the Greek Ombuds-
man, Professor Nikiforos Diamandouros, the former Swedish
Ombudsman Against Ethnic Discrimination, Mr F. Orton,
various professors as well as several representatives from the
Council of Europe, the office of the UN High Commissioner
for Human Rights, other UN institutions and the OSCE.

On 25 May 1999, Mr Jacob Söderman paid an official visit to
the Greek Ombudsman. Mr Söderman met with Mr Diaman-
douros as well as the four Deputy Ombudsmen. They
exchanged views on the recently set up office of the Greek
Ombudsman who began his work in September 1998. Mr Sö-
derman also met with the whole staff of the Greek Ombuds-
man and spoke about his experience as former national Finnish
Ombudsman and as the first European Ombudsman. The visit
was concluded by a press conference which was attended by
the main Greek newspapers, radio and television.

SPAIN

Guadalajara

On 12 July 1999, following the invitation of Mr Kirkpatrick,
the Spanish Ambassador to the Council of Europe, on
behalf of the Foundation Marqués de Santillana, Mr Söderman
delivered the opening address of a Seminar on ‘Human rights
and obligations’ held in the city of Guadalajara, Spain. In his
speech on ‘Human Rights Values in Europe’, the Ombudsman
stressed the role of human rights and their defence as one of
the basic themes of his work. Participants in the seminar
included Mr Mayor Oreja, Spanish Minister of Interior, Mr Fer-
na´ndez-Miranda, Vice-President of the Congreso de los Diputa-
dos, and Mr A´ lvarez de Miranda, Spanish Ombudsman.

Madrid

On 13 July 1999, Mr Söderman visited the Representations of
the European Commission and the European Parliament
in Madrid. He met Mrs Beristain, Deputy Director of the
Commission Representation, as well as Mr Samper, Head of
the European Parliament Office.

GREECE

ITALY

On the occasion of the Celebration of the 20th anniversary
of the Marangopoulos Foundation for Human Rights, the
Foundation invited Mr Jacob Söderman to participate in the
international colloquy ‘The Prevention of Human Rights
Violations’. The colloquy took place in the Panteion University
of Athens on 24 and 25 May 1999. Mr Söderman delivered a

On 30 September and 1 October 1999,
Jacob Söderman
accompanied by Gerhard Grill attended the conference ‘Europe
of the People: Towards the European Home Market’ organised
by the Kangaroo Group which was held in Rome. The
conference was attended by some 100 participants.

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On the first day of the conference, lectures were given by
Professor François Vandamme from the Belgian Ministry of
Labour (‘Social and labour mobility: problems and develop-
ment’), Mr Paul Altherr from Coca-Cola (‘Social and labour
mobility: a pragmatic view from the industry’), Mr Francisco
Manuel Seixas da Costa, the Portuguese Secretary of State for
European Affairs (‘New developments from the views of the
Council’; the text was read by a member of the Portuguese
embassy in Rome). Mr Söderman gave the after-dinner speech
in the evening.

In the morning of the second day, lectures were presented by
Mr Brian Baldock, Chairman of Marks & Spencer (‘Challenges
for trade in food due to consumer’s perception and protec-
tion’), Mrs Ineke Setz from the Consumenten Bond in the
Netherlands (‘Consumer’s protection’) and Mrs Lauritzen, an
advisor to the Commission (‘European consumer’s policy’).

During lunchtime, Mr Peter Schmidhuber, Member of the
Board of the Bundesbank, spoke about ‘The Euro in the
transitional period and consumers’ protection’.

In the afternoon, lectures were given by Mrs Nouchine Ochidari
from PriceWaterhouseCoopers (‘International mobility:
tax
and cost effective’), Mr Mario Monti, Member of the Com-
mission of the European Communities (‘Competition in a
social market economy’) and Karl von Wogau Mep (‘The
international role of the Euro’).

The Congress was officially opened in the morning of 25 Nov-
ember 1999 by the President of Burkina Faso, Mr Blaise
Compaoré. Present at the opening ceremony were also the
ambassadors of various foreign delegations in Burkina Faso.
The same day, Mr Söderman paid a visit to the office of the
Ombudsman of Burkina Faso.

Mr Söderman attended the following debates: ‘L’AOMF comme
outil de renforcement et de développement des bureaux
d’Ombudsmans et Médiateurs dans la Francophonie’, ‘L’acces-
sibilité des Ombudsmans et Médiateurs’ and ‘La promotion et
la communication des bureaux d’Ombudsmans et Médiateurs’.
In the framework of the theme ‘Les principes de bonne
administration appliqués aux bureaux d’Ombudsmans et
Médiateurs’, Mr Söderman presented to the Congress the Code
of good administrative behaviour, subject of the own initiative
inquiry which led to his draft recommendations to the different
Community institutions and bodies. On 26 November 1999,
the General Assemblee of the AOMF decided to include the
European Ombudsman as member of the Association, and
more particularly granted him the status of voting member.

On 24 November 1999, Mr Söderman paid a visit to the
European Commission Delegation in Burkina Faso, where he
was received by the Head of Delegation, Mr Antonio Garcı´a
Vela´zquez.

FRANCE

6.3. OTHER EVENTS

Ian Harden spoke on the work of the European Ombudsman
at a workshop on ‘the role of the Ombudsman between public
services and users’ which took place in Strasbourg in December
1999 in the framework of ‘Les entretiens territoriaux de
Strasbourg’. Other speakers at the workshop were the French
Ombudsman, Mr Bernard Stasi and Mr Gérard Lindacher, the
French Ombudsman’s representative in the department of Bas-
Rhin.

BURKINA FASO

The spokesman for the Finnish Representation to the E.U. in
Brussels, Mr Kemppinen, paid a visit to the Ombudsman on
9 February.

At the invitation of Mr Gammeltoft-Hansen, Ombudsman of
Denmark and vice-president of the International Ombudsman
Institute (IOI) and of Mr Schwärzler, president of the European
Ombudsman Institute (EOI), Mr Söderman attended a meeting
of the EOI/IOI Joint Coordinating Committee in Frankfort, on
15 February.

First Statutory Congress of
Ombudsman’s Association

the French speaking

Mr Söderman was invited to make a presentation of his work
to the Finnish Association in Belgium, Suomi-Klubi a.s.b.l., on
16 February in Brussels.

From 24 to 26 November 1999, Mr Jacob Söderman,
accompanied by Mr Olivier Verheecke, attended the ‘First
Statutory Congress of
the French-speaking Ombudsman’s
(1er Congrès Statutaire de l’Association des
Association’
Ombudsmans et Médiateurs de la Francophonie — AOMF) in
Ouagadougou, Burkina Faso. Mr Söderman was invited to this
Congress by the Ombudsman of Burkina Faso, General
Tiémoko Marc Garango, and by the President of the French-
speaking Ombudsman’s Association, Mr Daniel Jacoby, Protec-
teur du Citoyen of Québec.

On 21 February, Peter Dyrberg gave a talk on the European
Ombudsman to heads of UN associations who were on a study
visit to Brussels.

Mr Söderman gave a lecture on his role and activities to a
group of students from Sweden, Finland, Denmark and
Switzerland on 10 March.

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On 11 March, the Norwegian Ambassador to the European
Union, Mr Bull, accompanied by Mr Grevstad, visited the
Ombudsman’s office and had an exchange of views with
Mr Söderman on transparency issues within the Union.

On 29 April, Mr Söderman lectured to members of
the
association ‘Internationales Kolpingwerk’ in the framework of
their annual visit to the European Parliament in Strasbourg.

On 12 March, the European Ombudsman gave a lecture on
his role to a group of 30 visitors from Sweden.

On 5 May, Mr Söderman gave a talk on his work to a group of
Finnish public relations officials dealing with social affairs.

On 17 March, Peter Dyrberg gave a talk on the Ombudsman
and Community administration to a group of Danish students
from the University of Roskilde.

On 18 March, a group of young leaders from future accession
countries in Central and Eastern Europe who were participating
in a seminar organised by the Friedrich-Naumann-Foundation
were given a lecture on the European Ombudsman by José
Martı´nez Arago´ n.

On 19 March, Mr Söderman gave a talk to a group of civil
servants from Slovenia.

On 23 March, Peter Dyrberg gave a talk on the Ombudsman
and Public Access to Documents at the General Assembly of
the Society for European Affairs Practitioners.

Mrs Alicia Oliveira, the Ombudsman of the city of Buenos
Aires paid a visit to Mr Söderman on 31 March.

Also on 5 May, Mr Söderman lectured to a group of Austrian
lawyers.

On 6 May, Mr Söderman spoke about his work to a group of
Finnish lawyers of the Helsinki Institute.

On 26 May, Ian Harden gave a talk on the work of the
European Ombudsman to a visiting group of students from the
Institute for International Law of the University of Göttingen,
Germany (Institut für Völkerrecht der Universität Göttingen).

On 21 June, Ms Vicky Kloppenburg gave a talk on the work of
the European Ombudsman to a group of
teachers from
Sachsen Anhalt.

On 17 August, Mr Grill gave a lecture on the role of the
European Ombudsman to a group of some 20 Swedish
officials.

On 8 April, Mr Söderman lectured to a group of visitors of the
CSU Freising, Germany.

A group of representatives of political parties of Finland paid
a visit to the Ombudsman on 14 September.

The German Ambassador to the Council of Europe, Mr Dohm-
es, paid a visit to the Ombudsman on 12 April.

On 13 April, Mr Söderman presented his work to a delegation
of the Finnish national organisation of clerical employees
(STTK) who were visiting the European Parliament.

On 14 April, Peter Dyrberg gave a talk on the Ombudsman
and Transparency to a group of German students, Politischer
Jugendring Dresden.

On 22 April, Mr Söderman met with a group of Finnish civil
servants of the Foreign Ministry who were visiting the Council
of Europe.

Mr Söderman lectured to a delegation of the Legal Affairs
the Finnish Parliament on 15 September.
Committee of
Among other members, the delegation included Mr Henrik
Lax, the chairman of the Committee and Mr Lauri Lehtimaja,
the Finnish Parliamentary Ombudsman.

On 20 September, Mr Söderman presented his work and the
achievements of the first mandate to a delegation of the
Rovaniemi Region (Lapland).

On 21 September, Mr Söderman gave a speech about the
Ombudsman’s role and work during the first mandate at a
reception given by the representation of the Free State of
Bavaria, in Brussels.

On 26 April, Mr Söderman lectured to a group of Swedish
pensioners in Brussels.

On 21 September, Ms.Vicky Kloppenburg received a group of
civil servants from Sachsen-Anhalt, Germany in Brussels and
gave a presentation on the work of the European Ombudsman.

Mrs Florence Millelire-Boissavy — a French lawyer who is
preparing a manual on the subject of mediation intended for
law professionals — interviewed Mr Söderman on 28 April.

On 22 September, Mr Söderman lectured to members of the
Foreign Affairs Committee of the Finnish Parliament who were
visiting the Council of Europe.

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Mr Söderman was invited to speak on his role at a Breakfast
Meeting of the European Policy Centre in Brussels on 11 October.
The meeting attracted a large audience comprising diplomats,
companies, trade associations, NGOs and regional bodies.

On 10 February, Mr Söderman gave an interview to Mr Haral-
ambopoulos in the framework of a television programme on
E.U. institutions to be broadcast throughout the 16 regional
television channels of Greece.

On 12 October, Mr Gerhard Grill gave a talk on the tasks and
the role of the European Ombudsman to a group of some
40 visitors from the Finanzamt (Tax Office) Zeil am Main,
Germany.

On 25 October, Maria Engleson and Gerhard Grill explained
the role and the achievements of the European Ombudsman
to a group of 30 students from the Fachhochschule Bielefeld
who were accompanied by Professor Dr Joachim Jedzig.

On 15 November, Mr Söderman met with a Danish group
invited by MEPs Jens-Peter Bonde and Ulla Sandbæck in
the
Strasbourg and gave a talk about
Ombudsman’.

‘The work of

On 14 December, The President of the Youth Forum, Mr Pau
Solanilla, accompanied by the Secretary General, Mr Tobias
Flessenkemper and Mr Juha Mustonen, Project officer for the
Finnish EU presidency visited the Ombudsman and explained
the activities of their organisation to him.

6.4. MEDIA RELATIONS

Mrs Anna Karismo interviewed Mr Söderman on 10 February
for the Finnish paper ‘Helsingin Sanomat’.

On 11 February, Mr Michel Guetienne interviewed Mr Söder-
man for a television programme produced by the European
Parliament.

Mr Söderman gave an interview to Mrs Leila Pentinpuro on
17 February for ‘Europa’, a magazine produced by the Euro-
pean Commission’s office in Finland.

Also on 17 February, Mr Söderman was interviewed by
Mr Bartak for the Czech News Agency and Mr Foris for the
Hungarian paper ‘Magyar Nemzet’.

On 3 March, Mr Söderman gave a telephone interview to
Mr Ehrström for the Finnish monthly magazine ‘Forum för
ekonomi och teknik’.

On 3 March, Mr Harden was interviewed by Ms Anja Vogel of
Radio France Alsace for ‘L’Europe au Quotidien’, a weekly
programme on the French Radio France Info.

On 12 January, Mrs Hia Sjöblom interviewed Mr Söderman
for the Finnish paper ‘Salon Seudun Sanomat’.

Mr Söderman gave an interview to Mr Pierre Bocev for the
French daily newspaper ‘Le Figaro’ on 9 March.

On 14 January, Mr Söderman reported on his activities to a
group of 13 Nordic journalists lead by Mr Geo Stenius.

On 11 March, Mr Söderman gave a report on his activities to
a group of journalists from the Nordic countries (Denmark,
Iceland, Greenland, Sweden, Norway and Finland).

Mr Brandon Mitchener interviewed Mr Söderman for the Wall
Street Journal on 14 January.

Also on 11 March, Mr Söderman gave a telephone interview to
Mr Stephen Castle for the daily English paper ‘the Independent’.

On 21 January, Mr Söderman gave a telephone interview to
Ms Schulze for the ‘West Deutsche Rundfunk’.

On 26 January, Mr Pirjo Rautio of the Finnish newspaper
‘Pohjalainen’ visited the Ombudsman’s office and was given an
interview by Mr Söderman.

On 16 March, Mr Söderman was contacted by several journal-
ists to express his views following the resignation of the
members of the Commission. They included Mr Reineheimer
for the weekly Luxembourger newspaper ‘Le Jeudi’, Terttu
Lensu for the Finnish Radio and TV Broadcasting company,
Susanne Palme for the Swedish Broadcasting corporation, Hia
Sjöblom for the Finnish paper ‘Salon Seudun Sanomat’ and
Jesper Knudsen for the Danish daily newspaper ‘Information’.

Mr Ole-Morten Fadnes and Mr Henning A. Hellebust, two
Norwegian journalists, interviewed Mr Söderman on 27 Janua-
ry on the issues of transparency and public access to docu-
ments in the E.U.

Also on 16 March, Mr Pfletschinger interviewed Mr Söderman
for ‘Boulevard Europe’, a television programme produced by
the German ‘West Deutsche Rundfunk’.

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Mr Söderman was interviewed on 12 April for ‘Europe today’
a programme of the BBC World Service.

On 13 April, Liisa Kiiski interviewed Mr Söderman for the
Finnish news agency ‘Suomen tietotoimisto’ (STT).

On 23 July, Mr Söderman was invited to a press lunch in
Brussels organized by the Permanent Representation of Finland
included Åsa
to the European Union.
Nylund/Yle, Richard Brander/Stt, Eija Poutanen/Maaseudun
Tulevaisuus, Tuulikki Kuparinen/Taloussanomat, Reijo Ru-
tanen/Suomen Kuvalehti, Vesa Puoskari, and Maija Lapola/Tu-
run Sanomat.

Journalists present

Ina Baltes of the German television ‘ZDF’ interviewed Mr Sö-
derman on 13 April for a new daily programme on Europe
called ‘Heute in Europa’.

Mr Söderman gave an interview to Mr Neil Buckley for the
‘Financial Times’ on 29 July.

On 14 April, a press conference was organized in Strasbourg
on the occasion of the presentation of the Ombudsman’s 1998
Annual Report to the Parliament.

On 13 September, Mr Söderman was interviewed by Hannu
Taavitsainen for the Finnish monthly magazine ‘Kuntalehti’.

The same day, Mr Söderman gave an interview to Thomas
Wolf for the German magazine ‘Capital’ and to Gareth Harding
for ‘European Voice’.

On 18 April, at the invitation of MEP Paasilinna, Mr Söderman
met with a group of Finnish journalists who were visiting the
EU institutions in Brussels.

On 19 April, Mr Söderman gave a lecture to a group of Finnish
Chief Editors in Brussels in the framework of a seminar on EU
matters co-organized with the European Parliament Infor-
mation office in Helsinki.

Mr Söderman gave an interview to Matti Pitko that was
published in the Finnish daily newspaper ‘Aamulehti’ on
25 April.

On 14 September Mr Söderman gave an interview to Kristian
Ulfstedt for the Finnish Radio and to Leyla Linton for the
British ‘Daily Express’.

On 16 September, Ms Birgit Svensson interviewed Mr Söder-
man for the German paper ‘Märkische Allgemeine’ and Ms
Kristina Helenius for the Finnish Television.

Mr Söderman gave an interview to Mr Heikko Tuomi-Nikula,
the chief editor of ‘Lapin Kansa’
(the main newspaper of
Finnish Lapland), on 20 September.

On 21 September, Ms Natascha Zeitel-Bank interviewed
Mr Söderman in Brussels for the Bavarian Television ‘Bayer-
ischer Rundfunk’.

On 28 September, Ms Luukkanen interviewed Mr Söderman
in Brussels for ‘Monitori’ magazine.

On 5 May, Mr Söderman gave an interview to Mrs Ulrike
Osten for the Bavarian Radio ‘Bayerischer Rundfunk’ and to
Mr Magnus Ringman for the Swedish paper ‘Aftonbladet’.

On 29 September, Mr Söderman gave an interview to Robert
Cottrell for ‘The Economist’.

On 5 May, Ian Harden gave an interview about the work of
the European Ombudsman to Mr Pascal Maguesyan for the
‘réseau interdiocésain des radios chrétiennes’.

On 1 October, an article about the European Ombudsman
elections was published in ‘European Voice’ following an
interview that Mr Söderman gave to Gareth Harding.

On 6 May, Mr Söderman gave an interview to Mr Peter Ferm
for the Swedish ‘Nordvästra Skånes Tidningar’ and to Ms
Pirkka Kivenheimo for the Finnish ‘Turun Sanomat’.

The French TV ‘Demain’ interviewed Mr Söderman on 6 May
for an information programme broadcast in the framework of
the European elections.

Ms Ulla Østergaard interviewed Mr Söderman on 7 May for
the Danish paper ‘Jyllandsposten’.

On 6 October, Mr Söderman was interviewed by Marja Pal-
munen for the Finnish paper ‘Turun Sanomat’.

On 7 October, Leyla Linton interviewed Mr Söderman for
‘Parliament Magazine’.

Ms Anna Kehl, an independent German journalist interviewed
Mr Söderman on 8 October.

On 11 October, Mr Söderman was interviewed by Danish
journalist Mr Ryborg.

On 9 June, Mr Söderman gave an interview to ‘ARTE’ which
was broadcast in the framework of an information programme
on the European institutions.

Mr Söderman gave an interview to Ina Baltes for the German
Television ZDF in Brussels on 19 October.

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On 27 October, Gerhard Grill gave a telephone interview
about the work of the European Ombudsman which was
broadcast live on the German Radio SWR (Südwestrundfunk).

On the occasion of his reelection, Mr Söderman was inter-
viewed by several journalists including Mr Willy Silberstein for
the Swedish Radio as well as Ms Helenius and Mr Ulfsted for
the Finnish TV on 27 October.

Mr Söderman gave an interview to Mr Johansson for the
Swedish paper ‘Från Riksdag & Departement’ on 16 November
and to Stephen Bates for ‘the Guardian’ on 17 November.

mandate to a group of journalists from Barcelona who were
visiting the Parliament.

On 29 November, an article on transparency was published in
‘Newsweek’ magazine following an interview that Mr Söder-
man gave to Christopher Dickey.

On 30 November, Mr Söderman gave a telephone interview to
Gareth Harding for ‘European Voice’ regarding public access
to information in the E.U.

On 18 November, Mr Söderman and José Martı´nez presented
the Ombudsman’s work and the achievements of the first

Michaël Jungwirth interviewed Mr Söderman for the Austrian
paper ‘Kleine Zeitung’ on 15 December.

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ANNEXES

ANNEX A

STATISTICS CONCERNING THE WORK OF THE EUROPEAN OMBUDSMAN FROM 01.01.1999 TO
31.12.1999

1.

CASES DEALT WITH DURING 1999

1.1.

Total caseload in 1999

— complaints and inquiries not closed on 31.12.98

— complaints received in 1999

— own initiatives of the European Ombudsman

1.2.

Examination of admissibility/inadmissibility completed

1.3.

Classification of the complaints

1.3.1. According to the mandate of the European Ombudsman

— within the mandate:

— outside the mandate:

1.3.2. Reasons for being outside the mandate
— not an authorised complainant

— not against a Community institution or body

— does not concern maladministration

1.3.3. Analysis of complaints within the mandate
A d m i s s i b l e c o m p l a i n t s

— inquiries initiated

— no grounds for inquiry

— dealt with or being considered by Committee on Petitions:
— others:

I n a d m i s s i b l e c o m p l a i n t s

Inadmissible because

— author/object not identified

— time limit exceeded

— prior administrative approaches not made

— being dealt with or settled by a Court

— internal remedies not exhausted in staff cases

2.

INQUIRIES INITIATED IN 1999

(201 admissible complaints and 5 own initiatives of the EO)

2.1.

Institutions and bodies subject to inquiries (2)

— European Commission

— European Parliament

— Council of the European Union

— others

— Court of Justice:
— Europol:
— European Agency for Safety and Health at Work:
— European Agency for the Evaluation of Medicinal Products:

(1) of which 2 own initiatives of the EO and 186 admissible complaints.
(2) Some cases concern 2 or more institutions or bodies.

1 860

278 (1)

1 577

5

93 %

414 (27 %)

1 140 (73 %)

20

1 032

88

243

201

42
5
37

171

46

5

94

13

13

206

163 (77 %)

24 (12 %)

7 (3 %)

17 (8 %)
3
1
1
1

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— European Investment Bank:
— European Central Bank:
— Community Plant Variety Office:
— European Training Foundation:

2.2.

Type of maladministration alleged

(In some cases, 2 types of maladministration are alleged)

— lack or refusal of information, transparency

— avoidable delay

— discrimination

— unfairness, abuse of power

— procedures, rights of defence

— legal error

— negligence

— failure to ensure fulfilment of obligations (Art. 169 — new Art. 226)

— other maladministration

3.

DECISIONS CLOSING THE FILE ON A COMPLAINT OR CONCLUDING AN INQUIRY

3.1.

Complaints outside the mandate

— transferred

— as petition to the European Parliament
— to national Ombudsmen

— 708 complainants have been advised to contact another agency:

— national/regional ombudsman or petition a national Parliament
— to petition the European Parliament
— the European Commission
— Court of Justice of the European Communities
— others

3.2.

Complaints within the mandate, but inadmissible

3.3.

Complaints within the mandate and admissible, but no grounds for inquiry

3.4.

Inquiries closed with reasoned decision

(An inquiry can be closed for 1 or more of the following reasons)

— no maladministration found

— with a critical remark addressed to the institution

— settled by the institution

— friendly solution

— dropped by the complainant

— draft recommendations agreed by the institution

— other

(3) Of which 1 own initiative from the Ombudsman.

4
4
2
1

66 (23 %)

45 (16 %)

31 (11 %)

32 (11 %)

33 (11 %)

29 (10 %)

29 (10 %)

9 (3 %)

14 (5 %)

71
8

314
142
149
2
101

171

42

203 (1)

107 (1)

27

62

1

5

2

5

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4.

DRAFT RECOMMENDATIONS MADE IN 1999 AND SPECIAL REPORTS TO THE EUROPEAN
PARLIAMENT
— inquiries resulting in finding of maladministration with draft recommendations
— presentation of a special report to the European Parliament

5.

ORIGIN OF COMPLAINTS REGISTERED IN 1999

5.1.

Source of complaints
— sent directly to the European Ombudsman by:

— individual citizens
— companies
— associations

— transmitted by a Member of the European Parliament
— petitions transferred to the European Ombudsman

5.2. Geographical origin of the complaints

10 (1)
1

1 571
1 458
23
90
11
3

Country

Number of Complaints

% of Complaints

% of the EU Population

Germany

United Kingdom

France

Italy

Spain

The Netherlands

Greece

Belgium

Portugal

Sweden

Austria

Denmark

Finland

Ireland

Luxembourg

Others

258

91

297

178

227

45

36

86

62

40

37

23

68

31

34

64

16

6

19

11

14

3

2

6

4

3

2

2

4

2

2

4

21,9

15,7

15,6

15,4

10,6

4,1

2,8

2,7

2,6

2,4

2,1

1,4

1,3

0,9

0,1

C

(1) Of which 3 own initiatives of the Ombudsman.

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ANNEX B

THE OMBUDSMAN’S BUDGET

In common with the other Community institutions and bodies, the European Ombudsman adopted the Euro for
budgetary purposes from 1 January 1999.

Salaries, allowances and other costs related to employment are contained in Title 1 of the Budget. This Title also
includes the cost of missions undertaken by the Ombudsman and his staff. Title 2 of the budget covers buildings,
equipment and miscellaneous operating expenditure. Title 3 contains a single chapter, from which subscriptions to
international Ombudsman organisations are paid.

Co-operation with the European Parliament

To avoid unnecessary duplication of administrative and technical staff, many of the services needed by the
Ombudsman are provided by, or through, the European Parliament. Areas in which the Ombudsman relies, to a
greater or lesser extent, on the assistance of the Parliament’s services include:

— personnel, including contracts, salaries, allowances and social security

— financial control and accounting

— preparation and execution of Title 1 of the budget

— translation, interpretation and printing

— security

— informatics, telecommunications and mail handling.

In 1999, the efficiency saving to the Community budget from the co-operation between the European Ombudsman
and the European Parliament was estimated to be the equivalent of 5,5 posts.

Where the services provided to the Ombudsman involve additional direct expenditure by the European Parliament a
charge is made, with payment being effected through a liaison account. Provision of offices and translation services
are the largest items of expenditure dealt with in this way.

To improve transparency, the 1999 budget included for the first time a lump-sum fee to cover the costs to the
European Parliament of providing services which consist solely of staff time, such as administration of staff contracts,
salaries and allowances and a range of computing services.

The co-operation between the European Parliament and the European Ombudsman was initiated by a Framework
Agreement dated 22 September 1995, completed by Agreements on Administrative Cooperation and on Budgetary
and Financial Cooperation, signed on 12 October 1995. These agreements were due to expire at the end of the term
of office of the Parliament elected in 1994.

In July 1999, the Ombudsman and the President of the European Parliament signed an agreement prolonging the
original co-operation agreements until the end of 1999.

In December 1999, the Ombudsman and the President of the European Parliament signed an agreement renewing
the co-operation agreements, with modifications, for the year 2000 and providing for automatic renewal thereafter.

The 1999 Budget

The 1999 budget created six additional posts, including an A3. The European Parliament’s Committee on Budgets
blocked the appropriations for three of the new posts, including the A3, in the Reserve. Release of the appropriations
was made conditional on the presentation of an action plan concerning the transformation of temporary posts into
permanent posts. At the beginning of 1999, therefore, only 20 of the total establishment plan of 23 posts were
funded.

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In February 1999, the Ombudsman presented an action plan for restructuring the office, including separation of
legal work from administrative work through the creation of separate departments. The action plan also provided
for a gradual transition from exclusively temporary posts to a predominance of permanent posts. Despite accepting
the action plan, the Committee on Budgets did not release the blocked funds for the additional A3 post needed to
separate the legal and administrative roles of the Head of Secretariat. The proposed restructuring could not therefore
be implemented until the beginning of 2000.

The total amount of appropriations available in the Ombudsman’s 1999 budget was 3 474 797 €. Title 1 (Salaries,
allowances and other costs related to employment) amounted to 2 350 953 €. Title 2 (Buildings, equipment and
miscellaneous operating expenditure) amounted to 807 000 €. Title 3 (Expenditure resulting from special functions
carried out by the Institution) amounted to 2 000 €. An amount of 314 844 € was entered in the reserve (Title 10).

The following table indicates expenditure in 1999 in terms of committed appropriations.

Title 1

Title 2

Title 3

Total

€ 2 338 437

€ 632 904

€ 898

€ 2 972 239

Revenue consists primarily of deductions from the remuneration of the Ombudsman and his staff. In terms of
payments received, total revenue in 1999 was 285 127 €.

The 2000 Budget

The 2000 budget, prepared during 1999, provides for an establishment plan of 24, representing an increase of one
from the establishment plan for 1999.

Total appropriations for 2000 are 3 914 584 €. Title 1 (Salaries, allowances and other costs related to employment)
amounts to 2 878 797 €. Title 2 (Buildings, equipment and miscellaneous operating expenditure) amounts to
824 000 €. Title 3 (Expenditure resulting from special functions carried out by the Institution) amounts to 2 000 €.
An amount of 209 787 € has been entered to the reserve (Title 10).

The 2000 budget provides for total revenue of 346 761 €.

An independent budget

The Statute of the European Ombudsman provides for the Ombudsman’s budget to be annexed to section 1
(European Parliament) of the general budget of the European Communities.

In
Discussions on the possibility of creating an independent budget for the Ombudsman began in 1998.
December 1999, the Council agreed to a proposal that the Ombudsman’s budget should be independent and made
the necessary change to the Financial Regulation, with effect from 1 January 2000 (1).

However, in accordance with the legal provisions in force and in agreement with the European Parliament, the 2000
budget was prepared in the form of an Annex to the budget of the European Parliament and on the explicit
assumption that, if necessary, the Ombudsman could request a transfer from the Parliament’s contingency reserve as
was done in 1996 and 1998.

(1) Council Regulation 2673/1999 of 13 December 1999 OJ L 326/1.

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ANNEX C

PERSONNEL

EUROPEAN OMBUDSMAN

Jacob SO¨ DERMAN

SECRETARIAT OF THE EUROPEAN OMBUDSMAN

Ian HARDEN
Head of Secretariat
Tel. 0033 3 88 17 2384

Peter DYRBERG
Principal Legal Advisor (until 31.7.1999)
Brussels Antenna

José MARTI´NEZ ARAGO´ N
Principal Legal Advisor
Tel. 00 33 3 88 17 2401

Gerhard GRILL
Principal Legal Advisor (from 15.4.1999)
Tel. 00 33 3 88 17 2423

Benita BROMS
Principal Legal Advisor
Brussels Antenna (from 1.3.1999)
Head of Brussels Antenna (from 1.9.1999)
Tel. 00 32 2 284 2543

Olivier VERHEECKE
Legal Officer
Brussels Antenna (from 1.11.1999)
Tel. 00 32 2 284 2003

Vicky KLOPPENBURG
Legal Officer
Brussels Antenna
Tel. 00 32 2 284 2542

Xavier DENOE¨ L
Legal Officer
Auxiliary agent (until 31.1.1999 )
Temporary agent (from 1.6.1999)
Tel. 00 33 3 88 17 2541

Ida PALUMBO
Legal Officer
Tel. 00 33 3 88 17 2385

Alessandro DEL BON
Legal Officer
Auxiliary agent (until 30.9.1999)
Temporary agent (from 1.10.1999)
Tel. 00 33 3 88 17 2382

Maria ENGLESON
Legal Officer
Trainee (until 28.2.1999)
Auxiliary agent (from 1.3.1999)
Tel. 00 33 3 88 17 2402

Ilta HELKAMA
Press Officer (until 31.7.1999)

Ben HAGARD
Internet Communications Officer
Tel. 00 33 3 88 17 2424

Nathalie CHRISTMANN
Administrative Assistant
Tel. 0033 3 88 17 2394

Alexandros KAMANIS
Finance Officer
Tel. 00 33 3 88 17 2403

Maria MADRID
Assistant (from 1.9.1999)
Brussels Antenna
Tel. 00 32 2 284 3901

Murielle RICHARDSON
Secretary of the European Ombudsman
Tel. 00 33 3 88 17 2388

Anna RUSCITTI
Secretary
Brussels Antenna
Tel. 00 32 2 284 6393

Ursula GARDERET
Secretary
Brussels Antenna
Tel. 0032 2 284 2300

Isabelle FOUCAUD
Secretary
Tel. 00 33 3 88 17 2391

Stephanie KUNZE
Secretary (until 1.3.1999)

Isabelle LECESTRE
Secretary
Auxiliary agent (until 28.2.1999)
Temporary Agent (from 1.3.1999)
Tel. 00 33 3 88 17 2413

Marie-Andrée SCHWOOB
Secretary
Temporary Agent (from 1.3.1999)
Tel. 00 33 3 88 17 2393

Félicia VOLTZENLOGEL
Secretary
Temporary agent (from 1.5.1999)
Tel. 00 33 3 88 17 2422

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Patrick SCHMITT
Usher (until 31.8.1999)

Charles MEBS
Usher (from 1.9.1999)
Tel. 00 33 3 88 17 7093

Peter BONNOR
Trainee (until 15.6.1999)

Eleni KEFALI
Trainee (from 1.1.1999 to 30.6.1999)

Alexandra AGOSTO
Trainee (from 1.3.1999 to 31.7.1999)

Panu RAINIO
Trainee (from 1.9.1999 to 31.12.1999)

Conor DELANEY
Trainee (from 1.9.1999)

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ANNEX D

THE ELECTION OF THE EUROPEAN OMBUDSMAN

The legal provisions

Article 195 EC provides that ‘The Ombudsman shall be appointed after each election of the European Parliament for
the duration of its term of office. The Ombudsman shall be eligible for reappointment.

’The Rules of Procedure of the European Parliament set out details of the election procedure:
‘

Rule 177

1. At the start of each parliamentary term, immediately after his election or in the cases referred to in paragraph 8, the
President shall call for nominations for the office of Ombudsman and set a time limit for their submission. A notice calling
for nominations shall be published in the Official Journal of the European Communities.

2. Nominations must have the support of a minimum of thirty-two Members who are nationals of at least two Member
States.Each Member may support only one nomination.Nominations shall include all the supporting documents needed to
show conclusively that the nominee fulfils the conditions required by the Regulations on the Ombudsman.

3. Nominations shall be forwarded to the committee responsible, which may ask to hear the nominees.Such hearings shall be

open to all Members.

4. A list of admissible nominations in alphabetical order shall then be submitted to the vote of Parliament.

5. The vote shall be held by secret ballot on the basis of a majority of the votes cast.If no candidate is elected after the first two
ballots, only the two candidates obtaining the largest number of votes in the second ballot may continue to stand.In the
event of any tie the eldest candidate shall prevail.

6. Before opening the vote, the President shall ensure that at least half of Parliament’s component Members are present.

7. The person appointed shall immediately be called upon to take an oath before the Court of Justice.

8. The Ombudsman shall exercise his duties until his successor takes office, except in the case of his death or dismissal.’

The 1999 election

The European Parliament published a call for nominations in the Official Journal of 31 July 1999 (1), setting
24 September 1999 as the deadline for submission of nominations.

At a meeting of the Committee on Petitions held on 28 September 1999, the chairman of the Committee announced
that valid nominations had been received for two candidates, namely Mr Georgios Anastassopoulos (former MEP and
Vice-President of the European Parliament) and Mr Jacob Söderman (incumbent European Ombudsman).

The Committee on Petitions organised hearings of the two candidates at a special public meeting held on 19 October
1999.

On 27 October 1999, the European Parliament voted to elect the European Ombudsman. The election result was as
follows:

Total votes cast:
Mr Georgios Anastassopoulos:
Mr Jacob Söderman:
Spoilt papers:

557
256
269
32

Mr Söderman was therefore declared to have been elected.

The decision of the European Parliament appointing Mr Söderman for a second mandate was published in the Official
Journal of 1 December 1999 (2).

(1) 1999 OJ C 220/29.
(2) Decision 1999/780/EC, ECSC, Euratom of the European Parliament of 27 October 1999 appointing the Ombudsman of the

European Union, 1999 OJ L 306/32.

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HOW TO CONTACT THE EUROPEAN OMBUDSMAN

STRASBOURG

— By mail

The European Ombudsman
1, av. du Président Robert Schuman
B.P. 403
F-67001Strasbourg Cedex

— By telephone

0033 3 88 17 2313

— By fax

0033 3 88 17 90 62

— By e-mail

euro-ombudsman@europarl.eu.int

— Website

http://www.euro-ombudsman.eu.int

BRUSSELS

— By telephone

0032 2 284 2180

— By fax

0032 2 284 4914