European Ombudsman
European Ombudsman
Afgørelse i sag 2610/2009/(BU)MF - Påstået sortlistning og forskelsbehandling af en underleverandør i forbindelse med eksterne støtteprojekter, som Kommissionen har indgået kontrakt om
Afgørelse
Sag 2610/2009/(BU)MF - Indledt den 04/12/2009 - Afgørelse af 18/05/2011
Xxxxxxxx var ansat af en konsulentvirksomhed til at arbejde på et EU-projekt i Sudan. EU’s delegation i Sudan bad om, at klageren blev erstattet, da den fik underretning om, at EU’s delegation i Chad havde givet en negativ bedømmelse af arbejde, som klageren tidligere havde udført.
Klageren hævdede, at hun som et resultat af de problemer, hun havde haft med Kommissionen i forbindelse med de to projekter, ikke længere kunne finde beskæftigelse i projekter finansieret af EU. Hun følte, at hun var blevet udsat for sortlistning og forskelsbehandling.
Ombudsmanden fandt, at EU’s delegation i Xxxx havde handlet fair i forhold til klageren ved at informere hende direkte om årsagerne til hendes afskedigelse, men at dette ikke fritog EU’s delegation i Sudan for også at behandle klageren fair.
Ombudsmanden konkluderede, at Kommissionen ved (i) at undlade at informere klageren skriftligt om årsagerne til at bede om, at hun blev afskediget fra EU’s projekt i Sudan og (ii) at undlade at kontrollere, om klageren, før hun blev afskediget, havde fået lejlighed til at fremlægge sine synspunkter til den anmodning om at afskedige hende, som Kommissionen havde stilet til hendes arbejdsgiver, ikke havde handlet fair. Det udgjorde et tilfælde af fejl og forsømmelser.
Ombudsmanden afsluttede sagen med en kritisk bemærkning herom. The background to the complaint
1. From August 2007 to March 2008, the complainant worked as an expert on a Commission
project in Chad. The aim of the project was to provide technical assistance for the preparation of the electoral process in Chad. The complainant had a contract with an Italian consultancy firm which, in turn, had a contract with the Commission (represented by the EU Delegation in Chad).
2. On 2 October 2007, the EU Delegation in Chad contacted the complainant by e-mail to express its dissatisfaction with her work on the Project [1] . It also had a meeting with her the
next day. The complainant worked on the Project until her contract expired in March 2008. Her contract was not renewed.
3. On 11 September 2008, the Commission concluded Contract 2008/164538, entitled " Technical Assistance in Support of the Elections process in Sudan " with the Belgian firm "IBF International Consulting" ('IBF'). The purpose of the contract was to provide the EU Delegation in Sudan with technical assistance for the election process in Sudan, which was to take place in November 2008.
4. IBF and the complainant entered into a contract which required her to work in Sudan as an independent expert. Her contract with IBF started on 15 October 2008, and had a duration of 200 working days.
5. By letter dated 17 November 2008, the EU Delegation in Sudan requested IBF to replace the complainant in the Sudan project. In that letter, the Head of the Delegation referred to a negative assessment which had been made of both the complainant's work and her ability to carry out her duties when she had worked on an EU project that was monitored by the EU Delegation in Chad [2] .
6. By letter dated 2 December 2008 [3] , IBF informed the complainant that, in accordance with Article 3.3 of the Agreement [4] , it had decided to terminate her contract.
7. The complainant wrote to the Commission, describing the above facts, and asking the institution to provide an explanation.
8. In its letter to the complainant dated 3 March 2009, the Commission admitted that the EU Delegation in Chad had communicated certain information concerning her work in Chad to the EU Delegation in Sudan, where a recruitment procedure for a service contract concerning the electoral process was ongoing. In this respect, the Commission pointed out, however, that it reminds Delegations not only of the basic principles governing the award of contracts and the evaluation of the performance of consultancy firms and their experts, but also that any action taken by them must remain strictly in the framework of their professional performance, and any subjective judgment must be avoided.
9. During the year following her dismissal from the Commission's project in Sudan, the complainant was unable to find work as a consultant on any EU development project. She therefore turned to the Ombudsman with the present complaint.
The subject matter of the inquiry
10. The Ombudsman opened an inquiry into the following allegation and claim:
1. The complainant alleged that, as a result of the problems she had experienced with the Commission's Delegations in Chad and Sudan, she could not find any work on external aid projects contracted by the Commission. She felt that she was the victim of blacklisting and discrimination. In her e-mail to the Ombudsman of 31 December 2009, she referred to her unsuccessful attempts to be recruited as an electoral observer.
2. The complainant claimed that the Commission should end the above blacklisting and discrimination, and enable her to work on the above projects.
11. On 27 January 2010, the complainant sent a further e-mail to the Ombudsman [5] . She suggested that she should be awarded a contract in Chad on the occasion of the elections to be held in 2010 and that such a course of action would be a means of settling her dispute with the Commission.
The inquiry
12. On 4 December 2009, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint. In addition, he asked the Commission to explain whether there was any evidence to indicate that, besides the 17 November 2008 letter which the Head of the Delegation in Sudan wrote when requesting IBF to replace the complainant in the Sudan project, it had contacted the complainant directly to inform her of its intention to replace her in the Sudan project. Subsequently, he forwarded the complainant's further submissions, dated 31 December 2009 and 27 January 2010 to the Commission, and asked it to address them in its opinion.
13. On 8 June 2010, the Commission sent its opinion. The Ombudsman forwarded it to the complainant with an invitation to make observations. During the period from 8 July 2010 until 28 February 2011, the complainant submitted a number of letters containing her observations.
The Ombudsman's analysis and conclusions
A. Alleged difficulties in finding work due to blacklisting and discrimination by an EU Delegation
Arguments presented to the Ombudsman
14. The complainant argued that she was unfairly dismissed from the EU project in Sudan. She claimed that the defamatory assessment of her previous work in Chad was the cause of her dismissal. She also argued that, because of her dismissal, she could not find employment with private consultancy firms which were Commission contractors. In addition, the national authorities and the Commission had rejected her applications for posts as observer in elections to be held in certain African countries. She considered that, by implication, her dismissal amounted to blacklisting and discrimination.
15. In its opinion, the Commission referred to the time the complainant worked for the EU Delegation in Chad, which monitored the implementation of the contract for the EU project. From the outset, the complainant's performance did not meet the expected standard. The EU Delegation in Chad informed the complainant of that assessment in an e-mail of 2 October 2007. In order to explain the reasons for its dissatisfaction, and its expectations under the Terms of Reference ('ToRs'), the Delegation also had a meeting with the complainant on 3 October 2007. By letter dated 9 October 2007 [6] , the EU Delegation in Chad sent the minutes of that meeting to the complainant's employer, an Italian consultancy firm.
16. Despite considering the complainant's performance to be sub-standard, the EU Delegation in Chad decided that she could continue working until the end of her contract, that is, until the end of March 2008. It did so in the hope that the problems encountered would be progressively solved. However, the final report, drafted by the complainant, showed the poor quality of her output, and led to a substantial number of comments from the EU Delegation. The Delegation only approved the report once the complainant's employer had introduced the requested modifications.
17. The special circumstances in Sudan, and the negative feedback on the complainant's performance in Chad, led the EU Delegation in Sudan to doubt that the complainant was the most suitable candidate for the EU project in Sudan. For this reason, by letter dated 17 November 2008, the Delegation in Sudan requested its contractor (IBF) to find a replacement for the complainant.
18. In response to the complainant's submission that she was unable to find any work on EU projects, either as an expert or as an election observer, the Commission described the procedure which leads to the selection of (i) experts proposed by tenderers and contractors; and (ii) observers for EU Election Observation Missions ('EOMs') and Core Teams.
19. As regards (i), the Commission clarified that tenderers may be excluded by the Commission from participating in procurement procedures only on the basis of the limited grounds for exclusion laid down in Articles 93 [7] , 94 [8] , 95 [9] and 96 [10] of " Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities " ('Financial Regulation'). Grounds for exclusion include, for instance, professional misconduct which has been confirmed by a conviction or judgment with the force of res judicata , or which has been proven by any means which the Contracting Authority can justify. Legal or natural persons excluded under articles 93 and 94 of the Financial Regulation, are signalled to all the Commission's services through the Early Warning System ('EWS'). The EWS is designed for internal use by the Commission in order to inform the latter's authorising officers of risks linked to certain economic operators.
20. The Commission insisted that the complainant's name is not, and never was, placed in the EWS. The Commission further stated that, in accordance with its decision of 16 December 2008 to introduce the EWS for the use of authorising officers of the Commission [11] , the complainant could have checked the accuracy of this statement herself, since natural or legal persons whose data have been introduced in the EWS database have the right to be informed [12] .
21. The EWS is the only Commission database which keeps track of how contractors perform procurement or grant contracts. A fortiori , there is no other system which monitors the performance of experts contracted by a Commission contractor. In the case of service contracts, evaluation committees examine the curricula vitae (CV) of the key experts proposed by the contractors who apply for grants. The quality of a contractor's technical offer is assessed on the basis of the suitability of the experts whose CVs they submit.
Experts' CVs must include details of past assignments supporting the professional experience claimed.
22. In order to ascertain the veracity of the alleged professional experience, the contracting authority reserves the right to contact referees named in the CV. Moreover, if an expert's CV refers to work carried out under a previous EU financed project as professional experience, the Commission evaluator may contact his or her colleague responsible for the relevant contract in order to obtain feedback on that expert's previous performance. This is what happened in the complainant's case. In view of the critical situation, and the difficult working conditions in Sudan, the information available within the Commission itself on the complainant's previous assignment in Chad was considered useful for assessing her suitability for the Sudan project. Moreover, both Delegations were dealing with EU financed projects in the same region, and for projects in the same field, namely, election operations. This was mentioned in the letter dated 17 November 2008 to the Commission's contractor, and upheld by letter dated 3 March 2009 to the complainant.
23. As regards (ii), that is, EOM observers and Core Teams, the Commission stated that, in order to streamline their selection, a roster was drawn up to make the process more transparent, impartial, and uniform. All candidates (for Core Teams and EOM observers) interested in participating in an EOM have to register their candidature in the European Union Roster (EU roster). Being registered in the EU roster does not automatically result in being selected for an EOM. The minimum requirements for EOM observers are defined in the EU Guidelines on the Common Criteria for the Selection of Electoral Observers. The work carried out by observers is formally evaluated by those in charge of the mission, who then meet the observers at the end of the mission for discussions. The final results are entered in the EU roster. If an expert does not agree with an assessment, his or her reasons for disagreeing are entered in the roster. The Member States have access to these evaluations as a way of optimising the choice of their national candidates.
24. When selecting observers, the Commission distinguishes between two types of positions:
(a) Long-term observers (LTOs) and Short-term observers (STOs), and (b) Core Team members. As regards (a), in her letter dated 11 January 2010, in which she submitted further information concerning her complaint, the complainant referred to the fact that she was no longer pre-selected by the " Mission des Fonctionnaires Internationaux ", which is part of the relevant Department of the French Ministry for Foreign Affairs in charge of proposing French candidates to the Commission as potential LTOs and STOs for EOMs. The Ombudsman considers the allegation that the complainant was no longer pre-selected by the " Mission des Fonctionnaires Internationaux to be inadmissible on the basis of Article 228 of TFUE [13] given that this aspect is not related to an act of a Union institution, body, office or agency. As regards point (b) , the Commission stated that it recruits the Core Team experts directly. For each EOM, the Commission selects a team of high-level experts specialised in issues relating to the EOM, by publishing a call for proposals. These types of calls require a particularly high degree of specialisation and are highly competitive since the Commission receives between 20 and 100 applications for each position. In this regard, it is useful to note that, on average, 10 EOMs are carried out each year. This means that not being retained for this kind of post is indeed a very common occurrence. Similar to the selection of election observers, each
selection process differs, depending on the context of the Mission's needs, the country concerned, and the objective criteria defined in the calls. The selection panels apply the call criteria scrupulously in order to ensure the selection of top-class candidates with previous professional experience, who have exercised similar responsibilities, and have specialised knowledge of the region or geographical area concerned. For instance, according to the required criteria concerning professional experience, the post of core team expert requires a candidate to have previously carried out several long-term missions. For information, the Commission attached the two calls for proposals which were advertised in 2010 on the relevant internet webpage. Both calls for proposals stated the following: " Professional experience: i) participation in at least three Election Observation Missions as Core Team member or Long Term Observer (LTO) (...) or equivalent monitoring/supervision project and ii) holding the same position at least twice or holding comparable positions at least twice, or specific ad hoc training ".
25. The Commission argued that the complainant had not been selected to date for the kind of post concerned in this case because she did not fulfil the required professional experience criteria. Furthermore, the Commission was concerned by the manifest disregard for procedure shown by the complainant in her e-mail message of 27 January 2010, in which she proposed to do "a deal" with the Commission which was contrary to the above-described procedure for the selection of observers.
26. With regard to the Ombudsman's question concerning what information, if any, the Commission provided to the complainant, as regards IBF's request for her replacement, the Commission stated that the Delegation in Chad had been in direct contact with the complainant during her previous assignment in Chad and that it had unequivocally conveyed to her its dissatisfaction with her work. Furthermore, in its letter of 17 November 2008, the EU Delegation in Sudan had duly informed IBF, the complainant's employer at that time, of its reasons for requesting the complainant's dismissal. The Commission went on to say that, since [the complainant was] " not a contractual party to the complainant, the Commission had no obligation towards her " [14] . It added that IBF had given her access to that letter.
27. In her observations, sent between 8 July 2008 and 28 February 2011, the complainant basically reiterated the allegations she made in her complaint 503/2009/BU [15] regarding the EU Delegation in Chad. She stated that consultancy firms had informed her on several occasions that she was blacklisted as an electoral expert and that they no longer wished to present her application to the Commission.
The Ombudsman's assessment
28. As a preliminary remark, the Ombudsman points out that, when he dealt with the complainant's earlier complaint, which essentially concerned the EU Delegation's assessment of her work in Chad [16] , he decided that there were no grounds for the complainant's grievances.
29. Moreover, he found that the EU Delegation in Chad properly informed the complainant
of its view regarding her performance. In its e-mail sent to the complainant on 2 October 2007, that is, a few months before her contract ended, the Delegation stated the following:
" Durant votre 1er mois d'exercice, en qualité d'experte 2 en appui électoral, la Délégation de la Commission européenne a constaté certaines faiblesses en termes de maitrise des termes des références, et un manque de rigueur dans la planification opérationnelle et financière des actions financées dans le cadre du FED. Des initiatives désordonnées, et prises en dehors d'une concertation minimale avec les services de la Délégation, risquent sur le court et moyen terme de gêner le positionnement de l'Union européenne. "
30. In addition, on the next day (3 October 2007), the Commission organised a meeting with the complainant during which she was given the opportunity to present her views on the Commission’s above assessment. The complainant was thus informed in advance that she had little chance of working with the Commission again in Chad, unless she improved her performance.
31. However, the fact that the EU Delegation in Chad acted fairly towards the complainant did not exempt the EU Delegation in Sudan from also having to act fairly towards her when she started working on another project monitored by the latter.
32. In this context, the Ombudsman would like to draw attention to the fact that the complainant did not have a contractual relationship with the Commission when she worked in Chad or the Sudan. He therefore wonders why the Commission stated in its opinion that it considered that it was the lack of a contractual relationship which prevented the EU Delegation in Sudan from making the same kind of direct contact with the complainant, regarding her performance in Sudan, as the EU Delegation in Chad made regarding her performance in Chad.
33. The Ombudsman considers it to be perfectly reasonable that, on reading about the prior professional experience the complainant had gained while working on an EU project in Chad, as outlined in her CV [17] , the EU Delegation in Sudan contacted the EU Delegation in Chad in order to check the complainant’s qualifications. He considers this all the more reasonable since the complainant's duties in Sudan would essentially have been the same as the duties she carried out in Chad. In both countries, the working conditions were similarly difficult, requiring not only professional, but also specific personal skills.
34. According to evidence on the file, prior to the Commission's letter of 17 November 2008 to IBF, it does not appear that the EU Delegation in Sudan contacted the complainant directly concerning its intention to replace her in the project in Sudan. In its letter dated 17 November 2008, the EU Delegation in Sudan informed IBF that it had received " very negative feedback from another Delegation [in Chad] who contracted the Consultant recently " and, as a result, had decided to request her dismissal from the project. It was only in March 2009, when IBF disclosed the above letter to her, that the complainant became aware of the Commission's reasons for requesting her dismissal. Moreover, the Commission does not appear to have checked whether the complainant was given the opportunity to present her views to her employer (IBF) regarding the Commission's request for her dismissal, before the
dismissal actually took place.
35. The Ombudsman has already taken the view in his decision on another complaint (53/2009/MF) [18] that, whenever an EU Delegation requests an expert's removal from an EU funded project, it should do so on the basis of Article 17 of the General Conditions for Framework Contract Europeaid [19] , but only after the expert has been given the opportunity to present his or her observations on the EU Delegation's request for his or her removal. This is the expression of the right of every person to good administration and to have his/her affairs handled fairly. This right encompasses the right to be heard, before any individual measure is taken which may affect a person adversely [20] .
36. In the present case, the EU Delegation in Sudan would have acted fairly if it had (i) expressed, in writing, its reasons for asking for the complainant's dismissal from the EU project being carried out by IBF, and (ii) checked whether, before she was actually dismissed, the complainant had been given the opportunity to present her views to IBF regarding the Delegation's request for her to be replaced. The EU Delegation in Sudan failed to do so. This was an instance of maladministration.
37. Consequently, the Ombudsman considers it necessary to assess whether such evidence of maladministration could have (i) implications for the complainant’s career through, namely, the alleged blacklisting and discrimination, and (ii) other general implications.
38. Concerning the possible implications for the complainant's career, even if experts work de jure for various Commission contractors, ultimately it is the Commission which accepts or rejects their candidatures as experts for each individual project. There is no doubt, therefore, that, if the Commission negatively assesses an expert's work in an EU project, handled by one of the Commission's contractors, the negative assessment may indeed have repercussions on the possibility of their being engaged by another Commission contractor to work on another EU project. In the present case, the Commission provided convincing assurances that the complainant's name was not in the EWS. However, the negative repercussions mentioned above could nevertheless exist, regardless of whether the name of the expert concerned is, or is not, in the EWS.
39. It is, therefore, possible that the Commission's negative assessment of her performance in Chad, and its request for her dismissal from the project in Sudan, may indeed have led to the complainant's encountering difficulties in being engaged by the Commission’s contractors.
40. However, even if, prior to being dismissed, the complainant had been given the chance to discuss her performance in Chad with the EU Delegation in Sudan, or with IBF, which was her employer at that time, there is no certainty that she would necessarily have been employed as an expert on another EU project. First, it should be pointed out that the EU Delegation in Chad offered her the opportunity to comment on, and to defend herself against, the Commission's negative evaluation of her performance. Second, as stated above, Chad and Sudan had a similar working environment, and it was reasonable for the EU Delegation in Sudan to take this into account when deciding whether the complainant should
continue to work on the EU Project in Sudan. Third, the Commission's contractors might have had other reasons than those of the Commission for not proposing her for the EU projects contracted to them.
41. Similarly, since, in her application for the post of a Core Team expert, the complainant referred to her experience in the election process in Chad [21] , it would have been reasonable for the Commission to check this reference. It is not certain that the Commission actually did so. Nevertheless, even if her performance in Chad had been assessed favourably, this does not exclude the possibility that other candidates for the position of Core Team expert might have been better than her. In its opinion, the Commission did in fact refer to the highly demanding criteria for such posts. The same situation could also occur if she were to apply to take part in EOMs missions [22] . There is, therefore, no obvious link between her not being accepted for the Core Team and the circumstances of her dismissal in Sudan, and thus to the above identified instance of maladministration.
42. In light of the above, the Ombudsman concludes that there is no evidence that the above instance of maladministration had implications for the complainant and, therefore, her argument that she suffered discrimination or blacklisting, cannot be supported.
43. As regards the general implications, the Xxxxxxxxx recalls his further remark in complaint 53/2009/MF, referred to in paragraph 35 above: " The Ombudsman recalls that his response to the Commission's public consultation on review of the Financial Regulation expressed the view that a sub-contractor (such as an expert in the position of the complainant in the present case) should have the right to know of any criticism by the Commission of his or her performance and the right to be heard in relation to that criticism. The Ombudsman also recalls his exchange of correspondence with the Commission concerning a critical remark in another case concerning the replacement of sub-contracted experts. In substance, the Commission took the view that the rights of an expert whose replacement was requested could be ensured by a system in which the Contractor would hear the expert and convey to the Commission any observations he or she might make. In his reply of 11 August 2010, the Ombudsman did not exclude that the communication of the Commission’s criticisms to the sub-contractor, and the opportunity to be heard in relation thereto, could both be delivered by the Contractor. In this context, the Ombudsman considers it useful to point out that a system of the kind which the Commission appears to envisage for guaranteeing procedural fairness when the Commission requests [the] replacement of a
sub-contractor (i.e. a system which depends on the Contractor’s actions) would not be compatible with the Commission’s statement in its opinion that "it was unable to check how the consortium carried out the complainant's dismissal given that it could not interfere in third-party relationships". On the contrary, such a system would imply that the Commission has both the responsibility and the power to require the Contractor to ensure procedural fairness when the Commission requests [the] replacement of a sub-contractor. "
44. In its reply of 26 January 2011 to the above further remark, the Commission stated that, in November 2010, the Practical Guide to contract procedures for EC external actions (PRAG) had been modified. Article 17.2 of the General Conditions for service contracts now reads as follows: " Moreover, in the course of performance, and on the basis of a written and justified request to which the Consultant shall provide his own and the staff member's observations , the
Contracting Authority can order a replacement if it considers that a member of staff is inefficient or does not perform its duties under the contract. " (Emphasis added) The Ombudsman welcomes this reply and considers that, in view of the above underlined modification of Article 17.2 of the General Conditions for service contracts, the instance of maladministration identified in paragraph 36 above has no general implications.
45. In light of the above findings in paragraphs 42 and 44, the Ombudsman has decided not to make a friendly solution proposal, but to close the present case with a critical remark.
B. Conclusions
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:
The Commission acted unfairly by failing (i) to express in writing its reasons for requesting IBF to dismiss the complainant from the EU project on which IBF had engaged her to work, and (ii) to check whether the complainant, before IBF dismissed her, was given the opportunity to present her views on the Commission's request for her dismissal. This was an instance of maladministration.
The complainant and the Commission will be informed of this decision.
P. Xxxxxxxxx Xxxxxxxxxxxx
Done in Strasbourg on 18 May 2011
[1] A copy of this e-mail was enclosed with another complaint submitted to the Ombudsman by the same complainant (503/2009/BU). In that complaint, primarily directed against the EU Delegation in Chad, the complainant alleged moral harassment; endangering her safety; being forced to conceal information in the electoral report at the end of her mission in Chad; and calumny. The Ombudsman found that there were no sufficient grounds for him to deal with these allegations because (i) the complainant had not submitted evidence to support them, and (ii) the Commission provided the complainant with a proper explanation in its letter dated 3 March 2009. Moreover, it appeared that the complainant's claim for compensation submitted in that complaint was the subject of a court proceeding.
[2] The EU Delegation in Sudan stated in that letter that the feedback of the EU Delegation in Chad described the complainant as " not only lacking professional qualities as rigour, working capacity and technicality but also personal ones such as discretion, loyalty and mental balance ". It also stated that " given the hardship and critical situation in Sudan, the difficult and peculiar working environment, [the complainant] could not be able to carry out successfully and
efficiently her duties [in Sudan]."
[3] Not enclosed in the complaint.
[4] Article 3.3 of the Agreement reads as follows:
" This agreement shall also be automatically terminated without notice and indemnity to the Independent Expert (i) upon the illness of the Independent Expert, making her unable to normally exercise the Tasks for more than one week, in which case, if necessary, IBF's sole obligation shall be to cover the costs linked to the repatriation of the Independent Expert, and (ii) if for any reasons whatsoever, the Project is cancelled or reorganised in such a way that the services of the Independent Expert are no longer justified or if the authorities of the country in which the Independent Expert exercises the Tasks shall withdraw their consent for the execution of the Tasks by the Independent Expert or shall be unable to protect and guarantee the security of the Independent Expert ".
[5] The complainant's e-mail of 27 January 2010 reads as follows (French original version):
"Xxxx Xxxxxxxx,
Alors que le chef de la Commission Européenne au Tchad est directement responsable de la situation dont je souffre et alors que ce dernier est en fin de mission, et que je vis au Tchad actuellement et que l'élection législative est annoncée à l'Automne 2010 au Tchad, n'y aurait t'il pas moyen que la Commission européenne m'affecte au Tchad pour cette élection aux mêmes conditions que celle du contrat qui a été annulé au Soudan comme expert électoral ? Auquel cas le contentieux qui m'oppose à la Commission Européenne s'éteint. "
[6] Enclosed to complaint 503/2009/BU. The Commission's letter dated 9 October 2007 to the complainant's employer reads as follows (French original version):
" Nous vous avons présenté dans notre message du 3 octobre un aperçu des problèmes relationnels et professionnels qui ont surgi au cours du premier mois de son exercice à N'Djaména. À travers cette réunion nous souhaitions exposer les raisons de notre insatisfaction tout en indiquant à Melle [nom de la plaignante] nos attentes concrètes au regard des termes de références.
Nous estimons que la réunion s'est déroulée dans un climat globalement constructif. Nous espérons donc que les difficultés rencontrées jusqu'à présent ne se renouvèleront plus et qu'une relation de travail fiable, transparente et loyale pourra s'établir entre Melle [nom de la plaignante] et les services de la Délégation ."
[7] Article 93 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (Financial Regulation) reads as follows:
1. Candidates or tenderers shall be excluded from participation in a procurement procedure if:
(a) they are bankrupt or being wound up, are having their affairs administered by the courts, have entered into an arrangement with creditors, have suspended business activities, are the subject of proceedings concerning those matters, or are in any analogous situation arising from a similar procedure provided for in national legislation or regulations;
(b) they have been convicted of an offence concerning their professional conduct by a judgment which has the force of res judicata;
(c) they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify;
(d) they have not fulfilled obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which they are established or with those of the country of the contracting authority or those of the country where the contract is to be performed;
(e) they have been the subject of a judgment which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Communities' financial interests;
(f) following another procurement procedure or grant award procedure financed by the Community budget, they have been declared to be in serious breach of contract for failure to comply with their contractual obligations.
2. Candidates or tenderers must certify that they are not in one of the situations listed in paragraph 1. "
[8] Article 94 of Financial Regulation reads as follows:
Contracts may not be awarded to candidates or tenderers who, during the procurement procedure:
(a) are subject to a conflict of interest;
(b) are guilty of misrepresentation in supplying the information required by the contracting authority as a condition of participation in the contract procedure or fail to supply this information. "
[9] Article 95 of the Financial Regulation reads as follows:
" Each institution shall establish a central database containing details of candidates and tenderers who are in one of the situations described in Articles 93 and 94. The sole purpose of the database shall be to ensure, in compliance with Community rules on the processing of personal data, the correct application of Articles 93 and 94. Each institution shall have access to the databases of the other institutions. "
[10] Article 96 of the Financial Regulation reads as follows:
" Administrative or financial penalties may be imposed by the contracting authority on candidates or tenderers who are in one of the cases of exclusion provided for in Articles 93 and 94, after they have been given the opportunity to present their observations.
These penalties may consist:
(a) in the exclusion of the candidate or tenderer concerned from contracts and grants financed by the budget, for a maximum period of five years;
(b) in the payment of financial penalties by the contractor in the case referred to in Article 93(1)(f) and by the candidate or tenderer in the cases referred to in Article 94 where they are really serious and without exceeding the value of the contract in question.
The penalties imposed shall be in proportion to the importance of the contract and the seriousness of the misconduct."
[11] OJ 2008 L 344 of 20 December 2008.
[12] Article 8(3) of the EWS Decision explicitly establishes the possibility for any duly identified natural person to request from the Commission's Accounting Officer information whether he/she is registered in the EWS.
[13] Article 228 TFEU reads as follows:"[A] European Ombudsman, elected by the European Parliament, shall be empowered 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 the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them. (...) "
[14] French original version: " N'ayant pas de lien contractuel avec la plaignante, la Commission n'avait aucune obligation envers cette dernière ".
[15] See footnote 1.
[16] See Footnote 1.
[17] The Ombudsman understands that the complainant's CV was submitted by the IBF in its tender for the EU project in Sudan.
[18] Available on the Ombudsman's website xxxx://xxx.xxxxxxxxx.xxxxxx.xx
[19] Article 17 of the General Conditions for Framework Contract Europeaid ( xxxx://xx.xxxxxx.xx/xxxxxxxxx/xxxx/xxxxxxxxxxxxxxxxx/xxxxxxxxxxxxx/xxxxxxxxx/x_0_0_xxxxxxx_xxxxxx
)
" (1) The Contractor shall not make changes to the agreed personnel without the prior written approval of the Contracting Authority. The Contractor must in its own initiative propose a replacement in the following cases:
a) In the event of a member of staff's death, illness or accident.
b) If it becomes necessary to replace a member of staff for any other reason beyond the Contractor's control (e.g. resignation, etc.).
(2) Moreover, in the course of the performance, and on the basis of a written and justified request, the Contracting Authority can ask for a replacement if it considers that a member of staff is inefficient or does not perform his/her duties under the contract ".( Emphasis added )
[20] Article 41 (2) (a) of the Charter of Fundamental Rights of the European Union.
[21] The two proposals advertised in 2010 to which the Commission referred in its opinion were entitled " Request for candidatures - European Union election Observation Mission Ethiopia 2010 " and Request for candidatures - European Union election Observation Mission Burundi 2000 ". They concerned, among other things, the recruitment of an Electoral Analyst. Both of these proposals required candidates to fulfil the following criteria: " Professional experience: i) participation in at least three Election Observation Missions as Core Team member or Long Term Observer (LTO) … or equivalent monitoring/supervision project and ii) holding the same position at least twice or holding comparable positions at least twice, or specific ad hoc training “.
[22] The Ombudsman cannot, however, as rightly pointed out by the Commission, deal with this issue since national authorities are involved in the selection process for EOMs and Article 228 TFEU provides that: " A European Ombudsman, elected by the European Parliament, shall be empowered 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 the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them. "