Strasbourg, 23 April 2004
Draft recommendation to the European Commission in complaint 1986/2002/OV. Strasbourg, 31 March 2004
1 The claim for reimbursement of the secretarial costs made by the Institute
1.1 The complainant is the Director of the "International Institute for the Urban Environment" (IIUE, hereafter "the Institute"). He claims that the Commission should reimburse the costs the Institute incurred in providing the secretariat for the European Network of Urban Forums for Sustainable Development (UFSD), totalling 171,689 €. According to the complainant, after receiving encouragement and specific requests from the Commission to continue the work until a contract would be finalised, the complainant agreed to do so. The complainant cannot understand why the Commission did not state at the outset that this work could not be compensated.
1.2 The Commission observed that the secretarial and co-ordination task was not a part of the standard contract, which only provides for payment of an annual flat-rate subsidy. This was in reality a task of the Commission which could not be delegated. The initial contract has not been amended in any way which would allow payment for additional services. Also, the complainant has not had the occasion to misunderstand the Commission's oral and written positions.
1.3 After careful consideration of the opinion and observations, the Ombudsman found that, further to the complainant's requests of July and October 1997, the Commission had failed to inform the complainant within a reasonable time-limit, and in an adequate and unambiguous way, of its decision. The Ombudsman's provisional conclusion was that the Commission's rejection of the complainant's claim, which appears to be based on the unclear information provided by the Commission, seemed to be unfair. The Ombudsman proposed a friendly solution to the Commission consisting in the Commission reconsidering the complainant's claim. The Ombudsman pointed out that such reconsideration could lead to a reasonable offer that might be less that the amount claimed by the complainant.
1.4 In its brief reply to the Ombudsman's proposal for a friendly solution, the Commission regretted the absence of a written reply to the complainant's requests. The Commission stated, however, that the complainant's knowledge of the normal procedures would not have allowed him, in good faith, to interpret the situation as meaning that the Commission had entered into commitments towards him. In observations on the Commission's reply, the complainant maintained his complaint and underlined that the Institute acted in good faith.
1.5 The Ombudsman has not found in the Commission's reply to the proposal for a friendly solution any new arguments that could lead him to revise his provisional finding of maladministration. On the contrary, the Commission has confirmed the absence of a written reply to the complainant. Moreover, the Commission's argument concerning the complainant's supposed knowledge of the Commission's normal procedures is not convincing, since the Ombudsman's provisional finding of maladministration was not premised on the existence of a contractual commitment, but on the Commission's failure expressly to inform the complainant, within a reasonable time-limit and in an adequate and unambiguous way, of its decision not to enter into such a commitment.
In view of the above, the Ombudsman maintains his provisional conclusion of maladministration and makes the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman:
The Commission should reconsider the complainant's claim on the basis of the above elements. Such reconsideration could lead to a reasonable offer that might be less than the amount claimed by the complainant.