elibrary.ltelibrary.lt/.../ES/Leidiniai/ombudsman/compilation04_en.pdf · 2006. 3. 26. · 2 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1435/2002/GG AGAINST THE EUROPEAN COMMISSION

THE EUROPEAN OMBUDSMAN

ANNUAL REPORT 2004 COMPILATION OF DECISIONS

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DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1435/2002/GG AGAINST THE EUROPEAN COMMISSION 6

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1769/2002/(IJH)ELB AS IT RELATES TO THE EUROPEAN ANTI-FRAUD OFFICE 17

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1769/2002/(IJH)ELB AS IT RELATES TO THE EUROPEAN COMMISSION 39

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1876/2002/OV AGAINST THE EUROPEAN COMMISSION 48



DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1963/2002/IP AGAINST THE EUROPEAN COMMISSION 101


DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2007/2002/ADB AGAINST THE EUROPEAN COMMISSION 125


DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2204/2002/MF AGAINST THE EUROPEAN COMMISSION 142

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 253/2003/ELB AGAINST THE EUROPEAN COMMISSION 153

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 260/2003/OV AGAINST THE EUROPEAN PARLIAMENT 167

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 278/2003/JMA AGAINST THE EUROPEAN COMMISSION 177

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 378/2003/(ADB)MF AGAINST THE EUROPEAN PERSONNEL SELECTION OFFICE 190

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 415/2003/(IJH)TN AGAINST THE EUROPEAN COMMISSION 197


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DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 821/2003/JMA AGAINST THE EUROPEAN PARLIAMENT 222

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 841/2003/(FA)OV AGAINST THE EUROPEAN COMMISSION 233

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 849/2003/(VJ)JMA AGAINST THE EUROPEAN COMMISSION 244

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 900/2003/(IJH)TN AGAINST THE EUROPEAN COMMISSION 250

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 907/2003/ELB AGAINST THE EUROPEAN PARLIAMENT 263

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 953/2003/(FA)OV AGAINST THE EUROPEAN PARLIAMENT AND THE EUROPEAN COMMISSION 269

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1110/2003/ELB AGAINST THE EUROPEAN PERSONNEL SELECTION OFFICE 283

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1196/2003/ELB AGAINST THE EUROPEAN PERSONNEL SELECTION OFFICE 287


DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1286/2003/JMA AGAINST THE EUROPEAN COMMISSION 303

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1304/2003/(ADB)PB AGAINST THE EUROPEAN COMMISSION 316


DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1320/2003/(ADB)ELB AGAINST THE EUROPEAN COMMISSION 343



DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1571/2003/OV AGAINST EUROPOL 366

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1600/2003/ADB AGAINST THE EUROPEAN PARLIAMENT 372

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DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1624/2003/ELB AGAINST THE EUROPEAN COMMISSION 375


DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1949/2003/(TN)(IJH)TN AGAINST THE EUROPEAN COMMISSION 410

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2046/2003/GG AGAINST THE COUNCIL OF THE EUROPEAN UNION 414


DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2126/2003/(BB)PB AGAINST THE COUNCIL OF THE EUROPEAN UNION 427

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2183/2003/(TN)(IJH)TN AGAINST THE EUROPEAN COMMISSION 438

DECISION OF THE EUROPEAN OMBUDSMAN ON JOINT COMPLAINTS 2210/2003/MHZ, 2211/2003/MHZ AND 2212/2003/MHZ AGAINST THE COUNCIL OF THE EUROPEAN UNION 442

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2216/2003/(BB)MHZ AGAINST THE EUROPEAN PERSONNEL SELECTION OFFICE 450

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2225/2003/(ADB)PB AGAINST THE EUROPEAN UNIVERSITY INSTITUTE 460

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2239/2003/(AJ)TN AGAINST THE EUROPEAN COMMISSION 468


DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 2371/2003/GG AGAINST THE COUNCIL OF THE EUROPEAN UNION 484

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT OI/1/2003/ELB AGAINST THE EUROPEAN COMMISSION 493

SPECIAL REPORT FROM THE EUROPEAN OMBUDSMAN TO THE EUROPEAN PARLIAMENT FOLLOWING THE DRAFT RECOMMENDATION TO THE EUROPEAN COMMISSION IN OWN-INITIATIVE INQUIRY OI/2/2003/GG (CONFIDENTIAL) 502

DECISION OF THE EUROPEAN OMBUDSMAN ON OWN-INITIATIVE INQUIRY OI/5/2003/IJH AGAINST THE EUROPEAN COMMISSION 513

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 32/2004/GG AGAINST THE COMMITTEE OF THE REGIONS 525

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 220/2004/GG AGAINST THE EUROPEAN ANTI-FRAUD OFFICE 529

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DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 480/2004/TN AGAINST THE EUROPEAN COMMISSION 549

DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 520/2004/TN AGAINST THE EUROPEAN COMMISSION 567



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Decision of the European Ombudsman on complaint 1435/2002/GG against the European Commission Strasbourg, 29 March 2004 Dear Mr O., On 31 July 2002, you made a complaint to the European Ombudsman concerning your classification by the European Commission on the occasion of your recruitment by the latter. On 30 August 2002, I forwarded the complaint to the President of the European Commission. On 26 September 2002, you sent me further documents in relation to your complaint. I forwarded these further documents to the Commission on 1 October 2002. The Commission sent its opinion on 4 December 2002. I forwarded it to you on 9 December 2002 with an invitation to make observations, which you sent on 31 January 2003. On 10 February 2003, I wrote to the Commission in order to ask for further information in relation to your complaint. The Commission sent its reply on 28 March 2003. I forwarded it to you on 31 March 2003 with an invitation to make observations, which you sent on 6 May 2003. On 27 May 2003, I wrote to the Commission in order to propose a friendly solution in this matter. The Commission sent its opinion regarding this proposal on 29 July 2003. I forwarded it to you on 31 July 2003 with an invitation to make observations, which you sent on 30 September 2003. On 17 October 2003, I addressed a draft recommendation to the Commission. The Commission sent its detailed opinion on 20 January 2004. I forwarded it to you on 27 January 2004 with an invitation to make observations, which you sent on 3 March 2004. I am writing now to let you know the results of the inquiries that have been made.

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THE COMPLAINT The complainant, a Swedish citizen, successfully took part in competition COM/A/21/98 organised by the European Commission, and in July 1999 his name was put on a reserve list that was to be valid until the end of that year. Favourable rules for the recruitment of candidates from the new member states (Austria, Finland and Sweden) that temporarily (until the end of 1999) derogated from the normal rules, particularly in so far as the classification of candidates was concerned, were applicable by virtue of Council Regulation (EC) no. 626/95(1). The validity of the reserve list for competition COM/A/21/98 was subsequently extended until the end of 2000. However, the validity of the above-mentioned derogation was not extended. In December 1999, the complainant received two verbal offers for posts at the Commission, one in Luxembourg (Directorate-General Information Society) and one in Brussels (Directorate-General Internal Market). The complainant alleged that he accepted the post in Luxembourg on the understanding that Directorate-General (DG) Information Society and DG Personnel and Administration would arrange for the necessary written offer in time, i.e. before the end of the year. According to the complainant, however, this turned out not to be possible due to an internal misunderstanding as the post that had been offered to him was not a permanent post but a research post that still had to be transformed into a permanent post. The complainant was informed accordingly by e-mail on 21 December 1999. According to the complainant, it was then too late to come back on the offer made by DG Internal Market. The written offer for the post at DG Information Society was finally made in May 2000 and the complainant started working for the Commission on 15 September 2000. On 15 July 2001, the complainant was informed that the Commission had decided to classify him in grade A5 step 3.The complainant considered that in view of his 19 years of professional experience, he would have qualified for a classification in grade A4 step 4. An internal complaint against the decision on his classification that the complainant lodged on 8 October 2001 was however rejected by the Commission on 27 February 2002. In his complaint to the Ombudsman, the complainant contended that this result was neither fair nor correct and should therefore be rectified. He argued that he had not had any possibility to protect himself against this negative outcome. The complainant noted that, with hindsight, it might have been better if he had done what people within the Commission had, according to him, advised him to do at the time, i.e. accept any post before the expiry of the validity of Regulation (EC) no. 626/95. Given that some persons from the relevant reserve list had actually been employed before the end of 1999, the

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complainant submitted that persons from the same reserve list should receive the same treatment. The complainant further alleged that offer letters “subject to final decision” could have been written and were commonly written before the final offer letter was issued. According to the complainant, this made it possible to fix the date of the offer prior to certain cut-off dates, in order to avoid situations like the one in the present case. The complainant criticised the fact that this possibility had not been used in his case. The complainant furthermore argued that he had been informed in December 1999 by his future head of unit that in case the classification procedure should not result in the expected (i.e. positive) outcome, he would have a good chance to obtain a change in this decision through lodging a complaint against it. In the complainant’s view, the Commission’s approach was not in accordance with the statements contained in the ‘White Paper’ of 2000, particularly in relation to the need to give staff proper credit for prior periods of employment and the importance of transparency. The complainant argued in particular that a slow recruitment process created situations that were detrimental to the possibility to recruit externally. THE INQUIRY The Commission's opinion In its opinion, the Commission made the following comments: Competition COM/A/21/98 for Principal Administrators of Swedish nationality had been organised in the context of the accession of Austria, Finland and Sweden and had been subject to the special and exceptional measures concerning the recruitment of these nationals during the enlargement period provided for by Council Regulation (EC) no. 626/95 of 20 March 1995. This regulation had been valid until 31 December 1999. It had derogated from a number of articles in the Staff Regulations and allowed the organisation of competitions by nationality for the new member states, the recruitment of such nationals without the prior internal publication of the vacant post and classification in a higher grade without the limits imposed by Article 31 of the Staff Regulations. At the end of the enlargement period (31 December 1999), it had been considered that the Commission could still make use of the successful candidates from the enlargement competitions but that the special and temporary measures for recruitment, including the specific classification criteria, would no longer be applicable and that the normal statutory rules would apply. It was in these circumstances that the validity of competition COM/A/21/98 had been extended.

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The complainant had been aware of the special and temporary rules applicable to recruitment and their time limit. If the validity of the competition had not been extended beyond 31 December 1999, it would not have been possible at all to recruit the complainant to the Commission. On a point of fact, if it had been possible to recruit the complainant in 1999, his classification under the specific criteria, on the basis of his 18-19 years of professional experience, would have been A4 step 1 and not A4 step 4 as he had claimed. The recruitment in 2000 had been carried out in accordance with the statutory and classification rules applicable to all Commission staff at that time. The complainant had been treated in exactly the same way as all other candidates of enlargement competitions who had been recruited after the end of the enlargement period. The complainant's observations In his observations, the complainant maintained his complaint. He accepted that he had been informed about the Commission’s rules for newly recruited candidates but maintained that he had had no idea as to how these rules and regulations were to be applied. The complainant reiterated his view that the Commission could have issued a “lettre d’offre à titre indicatif” that would have made it possible to apply the exceptional criteria laid down in accordance with Council Regulation (EC) no. 626/95. Further inquiries After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. Request for further information The Ombudsman therefore asked the Commission to comment on the complainant’s arguments (1) that there had been an internal misunderstanding on the part of DG Information Society in December 1999 regarding the availability of the post and that this had made it impossible to recruit the complainant before the end of 1999 and (2) that the Commission could have issued a “lettre d’offre à titre indicatif” that would have made it possible to apply the exceptional criteria laid down in accordance with Council Regulation (EC) no. 626/95. The Ombudsman also forwarded a copy of the complainant’s observations to the Commission. The Commission’s reply In its reply, the Commission made the following comments:

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In December 1999, the complainant had been in contact with the Commission in order to find a post for his recruitment. It had been suggested that he should contact DG Information Society which had invited him for an interview. It had transpired that the only post available was one on the research budget which would have allowed him to be recruited only as a temporary agent, not as an official, and only to grade A6. In these circumstances, it had been impossible to recruit the complainant before 31 December 1999. A post that permitted his recruitment as an A5/A4 official had only become available in February 2000. After the completion of the statutory procedures, this post had been offered to the complainant in May 2000. The Commission rarely made conditional offers of employment. An absolute prior condition to making such an offer was that DG Personnel and Administration must have received a formal proposal for recruitment on an appropriate post and that the Appointing Authority had authorised the recruitment. In the complainant’s case, there had been no such formal proposal for his recruitment and no conditional offer could therefore be made. The complainant’s observations In his observations on this reply, the complainant accepted that the Commission had acted in accordance with the applicable rules and that it had thus not formally or legally committed any error. He argued however that the Commission could have issued a “lettre d’offre à titre indicatif”, thereby creating a cut-off date before the deadline of 31 December 1999. The complainant added that according to information he had received from Commission officials, this possibility had been used in relation to the expiration of derogatory rules on the occasion of previous accessions. He surmised that due to the fact that holidays were imminent at the relevant time, or maybe due to a lack of co-operation between DG Information Society and DG Personnel and Administration, this possibility had been neglected in his case. THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION After careful consideration of the opinion and observations, the Ombudsman was not satisfied that the Commission had responded adequately to all the complainant's allegations. The proposal for a friendly solution Article 3 (5) of the Statute of the Ombudsman(2) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complaint.

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The Ombudsman therefore made the following proposal for a friendly solution to the Commission:

The European Commission should consider reviewing the classification of the complainant.

This proposal was based on the following considerations: 1 The complainant had made the following submissions: He accepted the post offered by DG Information Society on the understanding that his DG and DG Personnel and Administration would arrange for the necessary written offer in time, i.e. before the end of the year. However, this turned out not to be possible due to an internal misunderstanding as the post that he had been offered was a research post that still had to be transformed into a permanent post. He was informed accordingly by e-mail on 21 December 1999. It was then too late to come back on another verbal offer he had received from another DG. 2 The Commission was expressly invited by the Ombudsman to comment on the complainant’s allegation that there had been an internal misunderstanding at DG Information Society concerning the availability of the post foreseen for the complainant. In its reply, the Commission did not object to the complainant’s account of events. 3 It was good administrative practice to proceed fairly in recruitment procedures. In the present case, it appeared that the complainant had been led to believe that he would be recruited by DG Information Society and that it would be possible for his recruitment to benefit from the derogatory rules set out in Regulation (EC) no. 626/95 that were applicable until the end of 1999. It further appeared that the recruitment was delayed due to an internal misunderstanding on the part of the Commission’s services. The Commission appeared to accept the complainant’s argument that it would have been possible to avoid the negative consequences following from this misunderstanding by making the complainant a conditional offer of employment. 4 In these circumstances, the Ombudsman took the preliminary view that the Commission’s decision on the classification of the complainant was unfair and that this could be an instance of maladministration. The Commission’s opinion In its opinion, the Commission made the following comments:

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The fact of being a successful candidate in an external competition did not give the person concerned the right to be recruited. The Commission had already confirmed that there had been no post available in DG Information Society that would have permitted the complainant’s recruitment as an official at the A5/A4 level. The complainant’s argument that a conditional offer of employment could have been made could not be accepted. Any offer of employment always had to be preceded by a formal proposal of recruitment to an appropriate vacant post by a Commission DG and by a formal recruitment decision by the Appointing Authority. Neither of these conditions had been satisfied in the complainant’s case and there had been no exceptions to these procedures. In these circumstances, the Commission was unable to agree to the Ombudsman’s request for a friendly solution. Furthermore, to agree to such a request would also call into question the treatment of other successful candidates from other enlargement competitions who had been unable, for whatever reason, to be recruited before the expiry of the enlargement period. The complainant’s observations In his observations, the complainant maintained his complaint and made the following further comments: It was with sadness and dismay that he had received the Commission’s opinion. He had been directly informed by DG Personnel and Administration (Mrs R., Mr V. and Mr L.). THE DRAFT RECOMMENDATION The draft recommendation On the basis of the evidence submitted to him, the Ombudsman arrived at the conclusion that a friendly solution was not possible. The Ombudsman therefore made the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman: The European Commission should consider reviewing the classification of the complainant. With one exception, the draft recommendation was based on the same considerations as the Ombudsman’s proposal for a friendly solution. As regards the complainant’s argument that the Commission could have made a conditional offer of employment, the

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Commission had explained that any such offer depended on the availability of a post and that this condition had not been fulfilled in the complainant’s case. In the light of this explanation, the Ombudsman decided not to invoke this aspect of the case in order to support his draft recommendation. The Commission’s detailed opinion In its detailed opinion, the Commission reiterated the position it had taken as regards the Ombudsman’s proposal for a friendly solution. However, the Commission expressed its regrets that it had not been clear at an earlier stage that no post had been available in DG Information Society. The complainant’s observations In his observations, the complainant maintained his complaint and asked the Ombudsman to see to it that the Commission assumed its full responsibility for the way it had handled the matter. THE DECISION 1 Allegedly unfair and incorrect classification 1.1 The complainant, a Swedish citizen, successfully took part in competition COM/A/21/98, and in July 1999 his name was put on a reserve list. Favourable rules for the recruitment of candidates from the new member states (Austria, Finland and Sweden) that temporarily derogated from the normal rules, particularly in so far as the classification of the candidates was concerned, were applicable by virtue of Council Regulation (EC) no. 626/95. The validity of this regulation expired however on 31 December 1999. In December 1999, the complainant received a verbal offer of a post at the Commission’s Directorate-General (DG) Information Society. However, the written offer was only made in May 2000, and the complainant started working for the Commission on 15 September 2000. He was classified in grade A5 step 3. In his complaint to the Ombudsman, the complainant alleged that in view of his 19 years of professional experience this result was neither fair nor correct and should therefore be rectified. 1.2 The Commission took the view that the complainant’s recruitment had been carried out in accordance with the statutory and classification rules applicable to all Commission staff at that time. It submitted that the complainant had been treated in exactly the same way as all other candidates of enlargement competitions who had been recruited after 31 December 1999.

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1.3 In his observations on the Commission’s reply to a request for further information, the complainant accepted that the Commission had acted in accordance with the applicable rules and that it thus had not formally or legally committed any error. 1.4 In support of his allegation that the Commission had acted unfairly, the complainant made the following submissions: He had accepted the post offered by DG Information Society on the understanding that this DG and DG Personnel and Administration would arrange for the necessary written offer in time, i.e. before the end of the year. However, this had turned out not to be possible due to an internal misunderstanding as the post that he had been offered had been a research post that had still to be transformed into a permanent post. He had been informed accordingly by e-mail on 21 December 1999. It had then been too late to take up another verbal offer he had received from another DG. 1.5 The Commission was expressly invited by the Ombudsman to comment on the complainant’s allegation that there had been an internal misunderstanding at DG Information Society concerning the availability of the post foreseen for the complainant. The Ombudsman notes that neither in its reply to this invitation nor in subsequent correspondence has the Commission objected to the complainant’s account of events. 1.6 The Ombudsman considers that it is good administrative practice to proceed fairly in recruitment procedures. In the present case, it appears that the complainant was led to believe that he would be recruited by DG Information Society and that it would be possible for his recruitment to benefit from the derogatory rules set out in Regulation (EC) no. 626/95 that were applicable until the end of 1999. It further appears that the recruitment was delayed due to an internal misunderstanding on the part of the Commission’s services and that by the time the complainant was informed that no permanent post was yet available for him at DG Information Society, it was too late for him to take up another verbal offer he had received from another DG. 1.7 In these circumstances, the Ombudsman took the view that the Commission’s decision on the classification of the complainant was unfair and that this constituted an instance of maladministration. 1.8 On the basis of the above finding, and in accordance with the rules governing his work, the Ombudsman made a proposal for a friendly solution, inviting the Commission to consider reviewing the complainant’s classification. The Commission rejected this proposal. The Ombudsman subsequently addressed a draft recommendation to the Commission according to which the latter should consider reviewing the complainant’s classification. This draft recommendation was also rejected by the Commission.

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1.9 The Ombudsman deplores the attitude displayed by the Commission in the present case. In the course of the present inquiry, the Commission’s attention was on several occasions drawn to the complainant’s allegation that there had been an internal misunderstanding at DG Information Society concerning the availability of the post foreseen for the complainant. In spite of this, the Commission refrained from submitting any comments on this issue. The Ombudsman considers that such an approach is not in conformity with the obligations that EU law imposes on Community institutions as regards their relations with both the European Ombudsman and complainants. 2 Conclusion 2.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

It is good administrative practice to proceed fairly in recruitment procedures. In the present case, it appears that the complainant was led to believe that he would be recruited by DG Information Society and that it would be possible for his recruitment to benefit from the derogatory rules set out in Regulation (EC) no. 626/95 that were applicable until the end of 1999. It further appears that the recruitment was delayed due to an internal misunderstanding on the part of the Commission’s services and that by the time the complainant was informed that no permanent post was yet available for him at DG Information Society, it was too late for him to take up another verbal offer he had received from another DG. This is an instance of maladministration.

2.2 The Ombudsman notes that the present case concerns the recruitment of an official in the context of the accession of Austria, Finland and Sweden to the EU and the special rules that had been set up for such recruitment procedures. It furthermore appears that the instance of maladministration identified by the Ombudsman does not raise issues of principle, given that it seems to have been caused by the mistakes of the Commission services concerned in a specific case. Accordingly, although he is fully aware of the hardship the Commission’s approach has caused the complainant, the Ombudsman takes the view that it is not appropriate to submit a special report to the European Parliament, which will be informed of the case in the Ombudsman’s Annual Report for 2004. 2.3 As regards the point made in paragraph 1.9 above, the Ombudsman considers that it is also appropriate to bring the matter to the attention of the European Parliament in the Annual Report for 2004, as part of a general evaluation of the Commission’s relations with the European Ombudsman and complainants. 2.4 The Ombudsman therefore closes the case.

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The President of the European Commission will also be informed of this decision. Yours sincerely, P. Nikiforos DIAMANDOUROS ------------------------- (1) Council Regulation no 626/95 of 20 March 1995 introducing special and temporary measures applicable to the recruitment of officials of the European Communities as a result of the accession of Austria, Finland and Sweden (OJ 1995 no L 66, p. 1). (2) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

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Decision of the European Ombudsman on complaint 1769/2002/(IJH)ELB as it relates to the European Anti-Fraud Office Strasbourg, 22 July 2004 Dear Mr B. and Mr B., On 9 October 2002, you lodged a complaint with the European Ombudsman against the European Commission and the European Anti-Fraud Office (OLAF) concerning alleged fraudulent diversion of LEADER II funds that were intended to benefit a company, Blue Dragon 2000, of which you are the directors. I already informed you, on 12 March 2004, of my decision closing the inquiry into your complaint as it concerns the Commission, following the latter’s acceptance of a draft recommendation. As regards OLAF, your complaint was sent to the Director General of OLAF on 28 October 2002. OLAF sent its opinion on 7 January 2003. This opinion was forwarded to you with an invitation to make observations, which you sent on 14 March 2003. On 26 June 2003, I requested further information from OLAF. On 2 October 2003, OLAF sent me its reply. On 22 October 2003, a copy of OLAF's reply was forwarded to you with an invitation to make observations, which you sent on 21 November 2003. On 16 February 2004, I made a draft recommendation to OLAF. On 18 March 2004, OLAF sent me its detailed opinion concerning this draft recommendation. On 15 April 2004 and 3 June 2004 respectively, a copy of OLAF's detailed opinion was forwarded to you in English and in French, with an invitation to make observations, which you sent on 18 April 2004, 12 and 28 May 2004. After having received the French version of OLAF's detailed opinion, you informed me, on 8 July 2004, that you did not wish to submit any additional observations. You called my services to obtain information on progress made in the inquiry on the following dates: 17 February 2003, 19 February 2003, 19 March 2003, 10 April 2003, 20 May 2003, 24 June 2003, 26 June 2003, 6 October 2003, 13 October 2003, 21 October 2003, 27 October 2003, 5 November 2003, 6 November 2003, 18 December 2003, 8 January 2004, 27 January 2004, 2 February 2004, 9 February 2004, 23 February 2004, 1 March 2004, 9 March 2004, 11 March 2004, 22 March 2004, 26 March 2004, 30 March 2004, 14 April 2004, 27 April 2004, 10 June 2004 and 19 July 2004.

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I am writing now to let you know the results of the inquiries that have been made. THE COMPLAINT The complainants, who are of French nationality, are directors of the company Blue Dragon 2000, which was set up on 4 June 1999 in Agullana, in the Catalonian region of Spain. In summary, the relevant facts according to the complainants are as follows: The complainants’ project was selected by the Local Action Group (LAG) Salines-Bassegoda to benefit from Community funds granted in the framework of the Community Initiative LEADER II. The complainants learnt that the aid application was dated 20 April 1999. However, they are not the authors of this aid application and did not sign it. On 15 May 2000, the LAG paid part of the Community funds to Blue Dragon 2000 in the form of two drafts, one for 7 million pesetas and one for 2.8 million pesetas. These two drafts were kept by the bank de Sabadell and should have been destroyed when a cheque for the same amount was issued. The complainants were given the relevant cheque on 15 June 2000. On 18 September 2000, the complainants contacted the European Anti-Fraud Office (OLAF) because they suspected that the Community funds that had been requested on behalf of their company were subject to fraud. On 19 September 2000, the complainants met two investigators from OLAF. After considering the information given by the complainants, the investigators concluded that Blue Dragon 2000 should have received only a very small amount of Community funds, as most of the eligibility criteria were not met. In October 2000, the complainants informed the Spanish authorities of irregularities in the granting of funds in the framework of the Community initiative LEADER II. On 15 December 2000, the complainants handed over to OLAF a set of relevant documents. On 2 April 2001, the regional government (Generalitat) of Catalonia gave the complainants a copy of the LEADER file concerning Blue Dragon 2000 (a document of 309 pages). According to the complainants, most of the documents in this file are false, since they have been backdated. On 4 May 2001, the complainants personally handed a copy of this file to two OLAF investigators.

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In June 2001, the complainants learnt that OLAF was opening an inquiry. In November 2001, the complainants were informed that two OLAF investigators dealing with the matter had been transferred to other duties. At the same time, the complainants received a copy of the report of an inspection carried out by the regional government of Catalonia. The report found a number of problems in the Blue Dragon 2000 project, in particular, that the project had not started and recommended that the Community funding that had been paid for the project should be recovered. On 20 and 25 February 2002, the complainants wrote to the Commission (Directorate General for Agriculture). They requested the assistance of the Commission to obtain compensation for the damage they had suffered. They also wished to have access to the findings of the OLAF inquiry and information on European Community services which could provide them with advice on their case. Finally, they asked for protection. On 9 March 2002, the complainants lodged a complaint with the European Commission against Spain concerning problems in the management, the control and the distribution of Community funds in the framework of the Community Initiative LEADER II in the Region of Catalonia. They also complained to the European Court of Human Rights. In June 2002, the European Court of Human Rights declared their complaint inadmissible because domestic judicial remedies had not been exhausted. On 26 June 2002, the complainants received a reply from the Commission to their letters. The Commission’s reply showed that their complaint of 9 March 2002 had been treated as ordinary correspondence. The complainants consider that there are three levels of collusion in their case: the first between the Local Action Group Salines-Bassegoda, various local actors and the bank de Sabadell, the second between the French diplomatic service, OLAF and the regional government of Catalonia and the third between the Directorate General for Agriculture, the European Commission, France and Spain. According to the complainants, the Commission should have begun legal proceedings, thus allowing the complainants to have joined the Commission's action. The complainants also state that they have received death threats, from unknown persons, linked to the present case.

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The complainants lodged a complaint with the European Ombudsman on 9 October 2002. They allege that the Commission and OLAF have failed to deal properly with their allegations of fraud and that the system of distribution of LEADER II funds through private sector bodies, as well as inadequate controls by the Commission, have facilitated the fraud. The complainants claim public exoneration, restitution of what has been stolen from them and compensation for economic and non-material losses they have suffered. The complaint to the Ombudsman was accompanied by detailed annexes of several hundred pages. The complainants later sent additional documents. In their original complaint, the complainants requested that the complaint remain confidential, in accordance with Article 2 (3) of the Statute of the Ombudsman. On 8 April 2003, they informed the Ombudsman that they no longer wished their complaint to be confidential. The present complaint is against both the Commission and OLAF. On 26 June 2003, the Ombudsman addressed a draft recommendation to the Commission, that it should re-examine the complainants’ letter of 9 March 2002 and deal with it in accordance with the Commission’s Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(1). On 16 September 2003, the Commission accepted the draft recommendation. On 12 March 2004, the Ombudsman therefore closed the case relating to the Commission. THE INQUIRY The European Anti-Fraud Office's opinion The opinion of the European Anti-Fraud Office (OLAF) on this complaint can be summarised as follows: On 18 September 2000, one of the complainants contacted OLAF by telephone. On the following day, a meeting took place between both complainants and an OLAF investigator at which the complainants provided information on their allegations of mismanagement of Community funds and irregularities concerning the administration of the LEADER II initiative. On 3 October 2000, the OLAF investigator wrote a memorandum on the complainants’ allegations. On 15 December 2000, the complainants provided OLAF with a file of 309 pages supporting their allegations. After an initial evaluation of this information, the Director General of OLAF decided to open an inquiry on 1 February 2001. The complainants sent additional documents in the following months.

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In the memorandum of 3 October 2000, the OLAF investigator planned an on the spot inspection of the offices of the LAG Salines-Bassegoda. OLAF contacted the Spanish authorities on 28 February 2001 to inform them of this inspection. The Spanish Ministry of Agriculture indicated that it had already carried out an inspection of the Blue Dragon 2000 project on 21 December 2000 and that the Department of Economy and Finances of the Regional Government of Catalonia was planning to check all activities of the LAG Salines-Bassegoda in March 2001. OLAF therefore decided to suspend its on the spot inspection and to wait for the findings of the inspections carried out by the Spanish authorities. On 10 July 2001, OLAF received the reports of the two Spanish authorities. On 14 November 2001, OLAF informed the complainants that it was examining these two reports. At the end of this examination, OLAF found that the inspections carried out by the Spanish authorities concerned the same elements, the same period and the same economic operator as OLAF had planned to inspect. The Spanish Agriculture Ministry stated that a number of irregularities were found in the Blue Dragon 2000 project:

- the required signature on the aid application was missing, - the required annexes were incomplete, - a required signature was missing on the contract between Blue Dragon 2000 and the LAG, - Blue Dragon's request for the first advance payment was not supported by documentation of costs incurred.

The Department of Economy and Finances stated that the management of the different stages of the 72 projects for which the LAG is responsible was satisfactory. The on the spot inspections of 50 % of the projects found that all projects, except the Blue Dragon 2000 project, had started and that the works were progressing. OLAF considered that there was no reason to question the findings of the Spanish authorities and therefore decided not to carry out an additional on the spot inspection. In accordance with Regulation (EC) No 1073/99 of the European Parliament and of the Council(2), a Final Case Report was written and approved on 10 December 2002 by OLAF's Management Board. According to this report, the findings of the Spanish authorities on the occasion of their inspections did not enable them to confirm the allegations of irregularities by the LAG, but irregularities were found in the Blue Dragon 2000 project. The report recommended that the case be closed with a financial follow-up in order to recover the funds allocated to the Blue Dragon 2000 project. On 12 December 2002, the Director General of OLAF closed the inquiry.

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The complainants' observations In their observations, the complainants find it surprising that they were not invited to any interview during the inspections carried out by OLAF and the Spanish authorities. This would have enabled them to correct some erroneous findings made during these inspections. Moreover, in view of the findings of the Spanish inquiries, the Spanish authorities and OLAF should have expressed some doubts, in particular about the fact that EU funds can be granted while basic documents are not signed, or about the difference in the planned amount of EU funds and the approved amount. The complainants question the date of the inspection, i.e. 21 December 2000, carried out by the Spanish Ministry of Agriculture, because the inspection report refers to documents that were only available at a later date. They consider that, as this inspection was carried out at a later date, OLAF should have carried out its own on the spot inspection. The complainants argue that the memorandum of the OLAF investigator, dated 3 October 2000, cannot have been written on that date, because some of the information it contains was not then available to OLAF. The complainants had only given OLAF a few documents on 15 December 2000 and these did not include the LEADER file, which they had not yet themselves received. Similarly, they consider that the OLAF inquiry was not in fact opened on 1 February 2001 and point out that they were informed of the opening of this inquiry only in June 2001. Moreover, they do not understand how OLAF could close the inquiry on 10 December 2002, since OLAF had informed them in January 2002 that their case had been transferred to the Directorate General for Agriculture. OLAF's opinion does not mention at any time the name of one investigator, who replaced the first investigator in charge of the complainants' case following the latter’s transfer. In September and October 2001, the complainants had interviews with the first investigator and, in November 2001, they were informed that he had been replaced. However, according to the information available to the complainants, it seems that both the first investigator and a second one were transferred in May 2001. They also point out that the EU funds involved amounted to 16.85 million pesetas and not 9.85 million pesetas. This question was never brought up by OLAF or the Spanish authorities.

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FURTHER INQUIRIES After careful consideration of OLAF's opinion and the complainants' observations, it appeared that further inquiries were necessary. The Ombudsman asked the Director General of OLAF to comment on the following:

- the complainants’ allegations about the quality of the checks carried out by the Spanish authorities; - the complainants' concerns as to who in OLAF was responsible for dealing with their dossier at the various stages of OLAF's investigation (from September 2000 until December 2002) and the reason why there was a change in the responsible investigators; - the complainants' argument that, contrary to OLAF’s assertion, the 309-page LEADER file concerning Blue Dragon 2000 was not available to OLAF in December 2000 and was only given to OLAF on 4 May 2001, as well as the complainants' query about the date when OLAF's investigation was opened.

OLAF's reply to the further inquiries OLAF’s reply can be summarised as follows: As regards the quality of the checks carried out by the Spanish authorities, the investigator dealing with the file initiated the appropriate steps to carry out an on the spot audit. On that occasion, OLAF learnt that the same beneficiary had been the subject of a check by the "national"(3) authorities and that a supplementary check was to be carried out by the "federal"1 authorities. OLAF consequently decided to suspend its audit mission and to await the results of both checks. OLAF received the reports on these checks on 10 July 2001. According to these reports, the various steps of the managing procedure had been exhaustively examined, the checks complied with the generally accepted auditing standards and were carried out without any constraint. It was stated in the second report that the accounts of the LAG had been certified without any reservation by an auditor in 1997, 1998 and 1999. Their structure and the details presented in them were those normally contained in this type of report. There was no element showing that these reports could be of poor quality. Examining the quality of these checks could mean auditing the control systems set up by the Member State. This type of audit is within the competence of Directorates General for Agriculture and for Regional Policy and not within OLAF's competence. OLAF was not informed by other Directorates General that the quality of these checks could be questioned. As regards the investigators dealing with the complainants' file, there have been three different investigators because of transfers to other Commission services:

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- The first investigator, assisted by the co-ordinator for Structural Funds, was responsible for the file from 1 February 2001 until 12 October 2001. This person was also the designated person for evaluating the first information received by OLAF. - When this person left OLAF, the above-mentioned co-ordinator took over the file from 9 November 2001 until 24 June 2002 and was assisted by a third person. - Finally, when this second investigator left OLAF, the above-mentioned third investigator took over from 24 June 2002 until 12 December 2002 when the inquiry was closed.

The changes that took place in the responsible investigators were the logical and normal consequence of the departure of the previous investigators. As regards the LEADER file concerning Blue Dragon, OLAF indicated that there are two acknowledgements of receipt dated 15 December 2000 and 4 May 2001, which do not indicate the number of pages received from the complainants. OLAF is unable to confirm the date of receipt of this file. The investigator responsible for the final evaluation considered that this file had been received on 15 December 2000. Furthermore, a pre-evaluation phase was initiated on 19 September 2000 when the complainants came to OLAF to give information to the first investigator. The decision to open an inquiry was made on 1 February 2001 by the Director General of OLAF and the decision to close the inquiry was made on 12 December 2002. The difference in dates for the receipt of the LEADER file had no influence on the progress of the inquiry, as all documents were taken into account in the final evaluation before the closure of the inquiry. The complainants' further observations The complainants' further observations can be summarised as follows: The complainants argue that OLAF failed to fulfil its mandate. It did not in fact carry out an inquiry on the dates indicated and created false documents to conceal this fact. According to the complainants, the OLAF inquiry was not opened on 1 February 2001 because a number of documents are false and were created to reply to the Ombudsman's inquiry, in particular the file note dated 3 October 2000, the note dated 1 February 2001, and the decision to open an inquiry dated 1 February 2001. Moreover, the decision to open an inquiry seems to be signed by the Director General of OLAF, Mr BRUENER. However, the letter from the Director General of OLAF dated 24 February 2003 bears a different signature. According to the complainants, OLAF deliberately refused to carry out an inspection in Spain, although from September 2000 it had sufficient evidence to do so. A letter from

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OLAF dated 14 November 2001 explained to the complainants that OLAF requested the Spanish authorities to carry out checks on the file in question and that it was now examining their findings. Furthermore, the complainants question the statement made in the reports by the Spanish authorities that all management procedures in the LAG had been thoroughly examined. First, because there is no mention of the draft of 7 million pesetas, which casts doubt on the sums given by the LAG to Blue Dragon and should lead to unbalanced accounts of the LAG. Second, the Spanish checks did not notice any false documents and that members of the LAG benefited from the fraud. The Spanish inquiry was limited to administrative problems and did not take into account criminal elements. The complainants conclude that the various Commission services were aware of the problems and chose not to question the Spanish checks. As regards OLAF's investigators, the complainants, according to information at their disposal, identified the three persons mentioned by OLAF in its reply. They point out some inconsistencies between information given by OLAF and information at their disposal. As regards the LEADER file concerning the Blue Dragon project, the complainants consider that the date of receipt by OLAF is important, because it shows that some documents provided by OLAF are false and that the final OLAF report does not take into account criminal elements. Finally, the complainants claim compensation for non-material and financial losses and, if no agreement is found, they request that the Ombudsman transfer their case to the competent court and inform the President of the Commission of the situation. THE DRAFT RECOMMENDATION On 16 February 2004, the Ombudsman addressed the following draft recommendation to OLAF in accordance with Article 3 (6) of the Statute of the Ombudsman: OLAF should examine whether it should re-open its inquiry, or conduct a new inquiry into the complainants' case. This draft recommendation was based on the following considerations:

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As regards the alleged failure to deal properly with the complainants' allegations 1 The complainants allege that OLAF has failed to deal properly with their allegations of fraud and that the system of distribution of LEADER II funds through private sector bodies, as well as inadequate controls by the Commission, have facilitated the fraud. The complainants claim public exoneration, restitution of what has been stolen from them and compensation for economic and non-material losses they have suffered. The complainants argue that a memorandum of the OLAF investigator, dated 3 October 2000, cannot have been written on that date, because some of the information it contains was not then available to OLAF, including the 309-page LEADER file on Blue Dragon, which they had not yet themselves received from the Spanish authorities. They also raise questions concerning who in OLAF was responsible for their case at different periods. 2 OLAF explains that, on 1 February 2001, following a meeting with the complainants, it decided to open an inquiry and to carry out an inspection on the spot. However, OLAF learnt that inspections had already been, or would be, carried out by the Spanish authorities. OLAF therefore decided to suspend its on the spot inspection and to await the findings of the inspections carried out by the Spanish authorities. OLAF considered that there was no reason to question the findings of the Spanish authorities and therefore decided not to carry out an additional on the spot inspection. A final report on the OLAF inquiry was written and approved on 10 December 2002 by OLAF's Management Board. According to this report, irregularities were found in the Blue Dragon 2000 project. The report recommended the case be closed with a financial follow-up in order to recover the funds allocated to the Blue Dragon 2000 project. On 12 December 2002, the Director General of OLAF closed the inquiry. According to OLAF, as a result of transfers of personnel to other services, three different investigators were successively responsible for the complainants' case. Finally, OLAF was unable to confirm the date of receipt of the LEADER file concerning Blue Dragon. 3 In accordance with Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(4), "In order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Community, the European Anti-Fraud Office established by Commission Decision 1999/352/EC, ECSC, Euratom (hereinafter 'the Office') shall exercise the powers of investigation conferred on the Commission by the Community rules and Regulations and agreements in force in those areas. (...) the Office shall conduct administrative investigations for the purpose of:

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fighting fraud, corruption and any other illegal activity affecting the financial interests of the European Community, (...)." 4 The Ombudsman considers that principles of good administration require administrative investigations by OLAF to be carried out carefully, impartially and objectively. The Ombudsman notes that OLAF was informed in September 2000 of the complainants' case, opened an inquiry in February 2001 and closed it in December 2002. However, on the basis of his examination of the evidence available, the Ombudsman notes a number of points which give rise to concern about the adequacy of the OLAF inquiry. (a) The opening date of the inquiry carried out by OLAF The Ombudsman notes that, in accordance with Article 5 of Regulation (EC) No 1073/1999, investigations “shall be opened by a decision of the Director of the Office.” The Ombudsman has carefully examined the documentary evidence available and notes that the signature of the Director General of OLAF on the decision to open the inquiry seems to be different from the signature on other documents apparently signed by the Director General. The Ombudsman points out, however, that OLAF has not yet been asked to clarify this point during the present inquiry. (b) The investigators in charge of the inquiry The Ombudsman notes that, according to OLAF, there were three investigators. The Ombudsman notes from the documents available that, particularly from May 2001 until December 2002, OLAF does not appear to have kept the complainants informed of the name of the person in charge of their case and that there appears to be some uncertainty as to who was the investigator in charge between 12 October 2001 and 9 November 2001. (c) The documents at OLAF's disposal The Ombudsman notes that OLAF is unable to confirm the date when it received the 309-page LEADER file concerning Blue Dragon 2000. (d) OLAF's decision not to carry out an inspection The Ombudsman notes certain differences between the information given by OLAF in its opinions and the information contained in documents annexed to the complainants' and OLAF's correspondence with the Ombudsman. According to OLAF’s opinion, it decided in February 2001 not to carry out an on the spot inspection because the Spanish authorities had informed OLAF that they had already carried out one inspection and that they planned to carry out further inspections. However, according to a letter from OLAF

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to the complainants dated 14 November 2001, it was OLAF that requested the Spanish authorities to carry out such inspections. (e) The findings of the OLAF inquiry From the examination of the documents included in the file, it appears that among the irregularities found in the Blue Dragon project by the Spanish authorities were missing signatures, in particular on the aid application. According to the complainants, they never signed the aid application. Despite the fact that EU funds therefore seem to have been granted and paid without appropriate documentation, the OLAF inquiry, based on the checks carried out by the Spanish authorities, concluded that problems occurred only at the level of the recipients of LEADER II funds. In this context, the Ombudsman recalls that, on 9 March 2002, the complainants lodged a complaint with the European Commission concerning problems in the management, the control and the distribution of Community funds in the framework of the Community Initiative LEADER II in the Region of Catalonia. The Ombudsman also recalls that the European Commission has accepted a draft recommendation from the Ombudsman to re-examine the complainants' letter of 9 March 2002 and deal with it in accordance with the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law. 5 In the light of the above, the Ombudsman considers that there are grounds for OLAF to examine whether it should re-open its inquiry, or conduct a new inquiry into the complainants' case and that failure to do so would be an instance of maladministration. OLAF's detailed opinion OLAF's detailed opinion can be summarised as follows: OLAF has further reflected on each of the points raised by the European Ombudsman and reconsidered whether its investigation should be re-opened or a new inquiry should be opened. (a) The opening date of the inquiry carried out by OLAF The Director General of OLAF has reviewed the signature on the decision, along with the transmission sheet that accompanied this document when it was signed. He can state with complete certainty that the signature on the decision is his; in addition, the paraph on the transmission sheet for this document is also his. To the extent that this signature differs from other signatures of his, this can be explained simply by the fact that, at a certain point in time, he adapted his signature in order to make it more legible. He also asked the OLAF archives to verify that this document was in its proper place and that there was no

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reason to question its authenticity. The archives assured him that the document was exactly as it should be. Moreover, as with all official OLAF's documents, the decision was registered on ADONIS, the Commission's document registration system, by which it is assigned a unique number and bar code which cannot be modified. (b) The investigators in charge of the inquiry OLAF conducts investigations solely for the reason specified in Regulation 1073/99: "to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Community." OLAF is not obliged to provide the public with information about an ongoing investigation. OLAF's policy with respect to informing an individual who may have an interest in the outcome of an investigation and who has provided OLAF with information is specified in OLAF's manual, paragraph 3.4.9.4: "In some instances, the initial information that triggered a case may have come from an individual who may have an interest in the outcome. It is OLAF's practice not to provide such individuals with any information about the investigation while it is still in course. Upon completion of the case, it is good administrative practice to send a brief letter to such person, informing him of the completion of the case and, in general terms, of its main results. However, the letter should not reveal any confidential information or professional secrets". While the case remained under the overall control of the relevant adviser during this period, there was a gap between the departure of the first investigator in charge (12 October 2001) and the appointment of the second investigator in charge (9 November 2001). From the time Mr BRUENER became Director General of OLAF in 2000, almost all of OLAF's operational staff was changed. Given this level of staff turnover, it was not always possible to have an investigator assigned full time to all investigations that had been open. However, even if for less than one month there was no investigator formally assigned to the case, the co-ordinator with respect to Structural Funds cases at the time was responsible for the case. (c) The documents at OLAF's disposal At the time when Mr BRUENER arrived in office, OLAF did not have in place an archiving system that would permit OLAF to provide the exact date of arrival of this document. This problem has since been remedied, and all documents arriving at OLAF are now registered, stamped with a number and date, scanned, and distributed to the responsible persons in electronic format. The originals are maintained in OLAF's registry. Whether the date that the LEADER file was provided to OLAF was 15 December 2000 or 4 May 2001, it has no bearing on the allegation of the complainants that OLAF did not have this document on 3 October 2000, the date on the file note which they claim is false.

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More importantly, the LEADER file was part of the dossier when a final decision was taken on the case. (d) OLAF's decision not to carry out an inspection The Spanish authorities had informed OLAF that they were looking to the alleged irregularities. The letter from OLAF sent to one of the complainants on 14 November 2001 was simply confirming that OLAF had asked the Spanish authorities to make all necessary controls and verifications, as deeply as possible, with respect to the Blue Dragon dossier. (e) The findings of the OLAF's inquiry OLAF's final case report concluded, on the basis of the Spanish authorities' inspections, that irregularities had occurred with respect to the Blue Dragon project, and recommended that the case be closed with financial follow-up to recover funds with respect to the Blue Dragon project. As regards the complaint lodged by the complainants with the European Commission, OLAF recalls that the Commission has requested clarification from the Spanish authorities concerning several points. It has not yet received a reply. For the above reasons, OLAF concluded that the points made by the Ombudsman do not call into question the adequacy of the inquiry that it conducted and considers that there are, therefore, no grounds for re-opening its inquiry or opening a new inquiry. The complainants' observations on OLAF's detailed opinion The complainants' observations on OLAF's detailed opinion can be summarised as follows: (a) The opening date of the inquiry carried out by OLAF The complainants recognise that Mr BRUENER may have different signatures but they consider that there should be an internal document identifying his official signature and that Mr BRUENER should have indicated when he changed his signature. They are still doubtful about the authenticity of Mr BRUENER's signature which appears on the document dated 1 February 2001 by which he decided to open an inquiry. The complainants maintain that the note dated 3 October 2000 is false and that consequently the note dated 1 February 2001 and the decision to open an inquiry are also false. According to information at their disposal, they consider that the note dated 3

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October 2000 was registered in OLAF's registry and ADONIS afterwards. The complainants conclude that Mr BRUENER is thus unable to prove the existence of the note dated 3 October 2000 and to confirm the opening date of the inquiry. Finally, the complainants note that Mr BRUENER did not sign the decision closing the inquiry but instructed one of his collaborators to do so. They note that this person seems to have different signatures. They learnt that ADONIS and OLAF's registry were probably not operational at the date given by Mr BRUENER. They request the Ombudsman to obtain information on the establishment of these two registration systems of documents. (b) The investigators in charge of the inquiry The complainants take note of OLAF's communication policy with individuals who have an interest in the outcome of an inquiry. They consider that OLAF should have explained earlier its policy and how an individual having an interest in the outcome of an inquiry and who provided OLAF with information was kept informed about this inquiry. OLAF should comply with the principles of European law, and in particular the principle of good administration. OLAF's manual, which is an internal document, should comply with these principles. The complainants note contradictions in OLAF's replies, in particular as regards the persons in charge of the inquiry. They do not understand why their case is considered as minor, although more than 10 persons took part in the OLAF's inquiry which started in September 2000 and was closed in December 2002. (c) The documents at OLAF's disposal According to the complainants, the date of receipt of the LEADER file by OLAF is important. They assert that it was received on 4 May 2001, at a time when OLAF's archiving system did not exist. Therefore, this system did not exist either when the inquiry was opened or when the note of 3 October 2000 was written. If OLAF had acknowledged that this file had been received on 4 May 2001, it would have recognised that the opening date of the inquiry was wrong. According to the complainants, from July 2001, OLAF had at its disposal all necessary information to question the Spanish authorities' checks. Finally, the complainants think that OLAF closed the case in December 2002 because the Ombudsman opened an inquiry, of which OLAF was informed on 28 October 2002. Furthermore, they note that OLAF's final report on this case is not registered and not signed. On 8 January 2002, OLAF requested the Directorate General for Agriculture to recover the funds. OLAF's inquiry was closed only on 5 December 2002.

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(d) OLAF's decision not to carry out an inspection The complainants note that no information is given on who initiated the inquiry: OLAF or the Spanish authorities. As regards the letter dated 14 November 2001, the results of the Spanish authorities' checks were sent to OLAF in July 2001. It therefore seems difficult to consider this letter as meaning that OLAF had asked the Spanish authorities to undertake an in-depth inquiry, when in fact the checks had already been carried out. (e) The findings of the OLAF's inquiry The complainants do not understand why an inquiry into a case in which only administrative problems were found took so long and why so many persons were involved. They wish to know whether the OLAF Supervisory Committee was informed of the delays in this inquiry and whether OLAF's final report was sent to the Spanish authorities. Moreover, during an interview between the complainants and OLAF's investigators, one of them indicated that, if the complainants collaborated with OLAF, they could be associated to the court actions initiated by OLAF. They wish to know whether this statement complies with procedures established by OLAF, if OLAF can compensate victims of European fraud, and, if this is possible, whether this compensation is paid because of OLAF's failure or because of a failure of the system of allocation of European funds set up by the Commission. The complainants hope that the Ombudsman will conclude that there was maladministration in the handling of their file. They request him to inform the President of the Commission and the Budgetary Control Committee of the European Parliament of their case and to transfer their file to the Court of First Instance in Luxembourg. THE DECISION 1 Preliminary remarks 1.1 The complaint was made against both the Commission and OLAF. However, the present decision concerns only OLAF. On 26 June 2003, the Ombudsman made a draft recommendation to the Commission, to re-examine the complainants’ letter of 9 March 2002 and deal with it in accordance with the Commission’s Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(5). On 16 September 2003, the Commission

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accepted the draft recommendation. The inquiry into the complaint against the Commission was therefore closed by a decision of the Ombudsman of 12 March 2004. 1.2 The Ombudsman recalls 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. The present decision therefore concerns the activities of OLAF. The Ombudsman's inquiry has not examined the activities of the Spanish authorities. 1.3 The Ombudsman notes that, in their observations on the Commission's detailed opinion, the complainants submit several new allegations and requests. They question the closing of the inquiry, on the grounds that the decision to close the case might not have been signed by Mr BRUENER, because the person who signed for him seems to have different signatures and because the case was closed after the opening of an inquiry by the Ombudsman. Moreover, they wish to know whether:

- the OLAF Supervisory Committee was informed of the delays in the inquiry, - OLAF's final report was sent to the Spanish authorities, - the possibility to be associated to the court actions initiated by OLAF, as indicated by one OLAF's investigator, complies with procedures established by OLAF, - OLAF can compensate victims of European frauds and, if this is possible, whether this compensation is paid because of OLAF's failure or because of the failure of the system allocating European funds set up by the Commission.

They request the Ombudsman to obtain information on the date when the archiving system was set up by OLAF and when ADONIS was operational. Finally, they request the Ombudsman to inform the President of the Commission and the Budgetary Control Committee of the European Parliament of their situation and to transfer their case to the Court of First Instance. 1.4 The Ombudsman notes that these allegations and requests were not included in the original complaint. He considers that he already has available all the information necessary to make a decision on the case. Therefore, he takes the view that it is not appropriate, at this stage, to extend the scope of the present inquiry to include the new allegations and requests presented in the complainants' observations on OLAF's detailed opinion. The complainants are free to address their new allegations and requests to OLAF and to lodge a new complaint with the Ombudsman if they consider that OLAF's reply is not satisfactory.

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1.5 The Ombudsman points out that the complainants could inform, if they so wish, the President of the Commission and the Budgetary Control Committee of the European Parliament of their situation and take the matter to the Court of First Instance in accordance with the latter's rules of procedure. The statute of the Ombudsman makes no provision for the Ombudsman to transfer a complaint to the Court of First Instance. 2 Alleged failure to deal properly with the complainants' allegations 2.1 The complainants allege that OLAF has failed to deal properly with their allegations of fraud. They claim public exoneration, restitution of what has been stolen from them and compensation for economic and non-material losses they have suffered. 2.2 OLAF explains that, on 1 February 2001, it decided to open an inquiry. A final report on OLAF's inquiry was written and approved on 10 December 2002 by OLAF's Management Board. According to this report, irregularities were found in the Blue Dragon 2000 project. The report recommended that the case be closed with a financial follow-up in order to recover the funds allocated to the Blue Dragon 2000 project. On 12 December 2002, the Director General of OLAF closed the inquiry. 2.3 On 16 February 2004, the Ombudsman addressed, in accordance with Article 3 (6) of the Statute of the Ombudsman, a draft recommendation to OLAF according to which OLAF should examine whether it should re-open its inquiry or conduct a new inquiry into the complainants' case. 2.4 In its detailed opinion issued on 18 March 2004, OLAF informed the Ombudsman that it had examined the points raised by him and had considered whether it should re-open its inquiry or open a new inquiry. OLAF concluded that the points made by the Ombudsman did not call into question the adequacy of the inquiry conducted by OLAF and that therefore there were no grounds for re-opening its inquiry or opening a new inquiry. 2.5 The Ombudsman will examine OLAF’s detailed opinion as regards each of the points in the Ombudsman’s draft recommendation: (a) The opening date of the inquiry carried out by OLAF The Ombudsman notes that the Director General of OLAF states with complete certainty that the signature on the decision is his signature and that if this signature differs from other signatures of his, this can be explained simply by the fact that, at a certain point in time, he adapted his signature in order to make it more legible. The Ombudsman takes the view that this statement from the Director General of OLAF confirms the authenticity of the document and hence the opening date of the inquiry. However, the Ombudsman

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notes that OLAF did not attach to its reply a copy of an official document, established when the change in the signature of the Director General of OLAF took place and attesting to this change. The Ombudsman considers that it would have been in accordance with the principles of good administration for OLAF to have established such a document. The availability of such a document would have helped quickly to remove any possible doubt about the authenticity of the decision opening the inquiry. The Ombudsman therefore considers that it is useful to make a further remark to this effect below. (b) The investigators in charge of the inquiry The Ombudsman notes a certain lack of consistency in the application of OLAF's communication policy with individuals who have an interest in the outcome of an inquiry. It seems in fact that some information was given to the complainants during the inquiry, although OLAF's manual does not provide for the communication of that information. This lack of consistency is unfortunate, because, as a general matter, it could lead to confusion and even give rise to suspicion on the part of individuals interested in inquiries carried out by OLAF. However, the Ombudsman considers that the complainants in this case have now at their disposal the necessary information to clarify the handling of their case. (c) The documents at OLAF's disposal The Ombudsman notes that OLAF has recognised that it did not have an adequate system for registration of incoming documents at the time when the Blue Dragon case began. The Ombudsman considers that such a weakness is especially regrettable in view of OLAF's specific duties and responsibilities, which make it important for OLAF to win and maintain the trust of persons concerned by inquiries, of European and national institutions and of the citizens of the Union The Ombudsman notes, however, that OLAF has already taken steps to deal with the problem by putting in place an effective and reliable system of registration. In the Ombudsman’s view the operation of this system should help avoid, in the future, doubts about the reliability of OLAF's files. Moreover, the Ombudsman notes that there is a conflict between OLAF and the complainants about certain facts, the origin of this conflict being linked to the date at which OLAF received certain documents. The Ombudsman notes that, according to OLAF, the most important thing is that the LEADER file was included in the file on the case when OLAF’s final decision was taken. According to the complainants, if OLAF had acknowledged the date when it actually received the LEADER file, it would have recognised that the opening date of the inquiry was false.

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The Ombudsman considers that the above conflict could only be resolved by a court of competent jurisdiction, which would have the possibility to assess conflicting evidence about the facts. He recalls that the complainants have the possibility to begin proceedings that would allow them to submit the matter to a court. The Ombudsman therefore takes the view that no further inquiries are justified as regards this aspect of the complaint. (d) OLAF's decision not to carry out an inspection The Ombudsman takes note of the clarification given by OLAF as regards the content of the letter dated 14 November 2001. He considers that the wording of this letter was equivocal and likely to lead to misunderstanding from the complainants about OLAF's activity. However, the Ombudsman considers that, in the course of the present inquiry, the complainants have received the necessary clarifications on this matter. (e) The findings of OLAF's inquiry The Ombudsman notes that, in its detailed opinion, OLAF considers that the comments made by the Ombudsman in his draft recommendation "did not call into question the adequacy of the inquiry that it conducted and that therefore there were no grounds for re-opening its inquiry or opening a new inquiry." The Ombudsman also notes that OLAF recognises that its final report on the Blue Dragon case is based on the checks that were carried out by the Spanish authorities. The Ombudsman recalls that, following the draft recommendation addressed to the Commission by the Ombudsman on 26 June 2003, the Commission registered the complainants' letter of 9 March 2002 as a complaint against Spain for an infringement of Community law. According to OLAF's detailed opinion, the Commission has requested clarification from the Spanish authorities about several points and has not yet received a reply. The Ombudsman considers that, at the present stage of the Commission's investigations into the alleged infringement by Spain, OLAF's conclusion that there is no ground to re-open its own inquiry or to open a new inquiry appears reasonable. As regards the general issue of the relations between OLAF and the authorities of the Member States and in particular to what extent OLAF is to rely on the checks carried out by Member States without carrying out its own inquiries, the Ombudsman notes that, on 10 February 2004, the Commission submitted a Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999

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concerning investigations conducted by the European Anti-Fraud Office (OLAF)(6). This proposal is currently before the European Parliament. The Community legislator therefore has the opportunity to examine the merits of possible changes in the way OLAF carries out its internal and external investigations and in its co-operation with the authorities of the Member States. As the matter is before the Community legislator, the Ombudsman does not considers that it is necessary for him to make further inquiries into this subject. 2.6 The Ombudsman takes the view that OLAF has accepted his draft recommendation, given that it has examined the file and considered whether it was appropriate to re-open its inquiry or to open a new inquiry. Furthermore, the Ombudsman notes from the information supplied in OLAF's detailed opinion that the Commission’s investigations into the complainants' allegations of an infringement of Community law by Spain are on-going. The Ombudsman considers that, at the present stage of the Commission's investigations into the alleged infringement by Spain, OLAF's conclusion that there is no ground to re-open its own inquiry or to open a new inquiry appears reasonable. In view of this conclusion, the Ombudsman considers that no further inquiries are justified. 3 Conclusion For the reasons set out above, the Ombudsman considers that no further inquiries are justified and therefore closes the case. FURTHER REMARK The Ombudsman considers that it would have been in accordance with the principles of good administration for OLAF to have established, when the change in the signature of the Director General of OLAF took place, an official document attesting to this change. The availability of such a document would have helped quickly to remove any possible doubt about the authenticity of the decision opening the inquiry. The Director General of OLAF will also be informed of this decision. A copy of the decision will also be sent, for information, to the President of the OLAF Supervisory Committee. P. Nikiforos DIAMANDOUROS

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------------------------- (1) 2002 OJ C 244/5. (2) 1999 OJ L 136/1. (3) The words between quotation marks are those used by OLAF in its reply. (4) 1999 OJ L 136/1. (5) 2002 OJ C 244/5. (6) COM(2004)103 final.

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Decision of the European Ombudsman on complaint 1769/2002/(IJH)ELB as it relates to the European Commission Strasbourg, 12 March 2004 Dear Sirs, On 9 October 2002, you lodged a complaint with the European Ombudsman against the European Commission and the European Anti-Fraud Office (OLAF) concerning alleged fraudulent diversion of LEADER II funds that were intended to benefit a company of which you are directors, Blue Dragon 2000. On 28 October 2002, I sent the complaint to the President of the European Commission and the General Director of OLAF. OLAF sent its opinion on 7 January 2003, the Commission sent its opinion on 27 January 2003. I sent you these opinions inviting you to comment on them, which you did on 14 March 2003. On 26 June 2003, I made a draft recommendation to the Commission. On 16 September 2003, the Commission sent me its detailed opinion concerning this draft recommendation. On 30 September 2003, a copy of the Commission's detailed opinion was forwarded to you with an invitation to make observations, which you sent on 30 October 2003. The inquiry relating to OLAF is still ongoing. You called my services to obtain information on progress made in the inquiry at the following dates: 17 February 2003, 19 February 2003, 19 March 2003, 10 April 2003, 20 May 2003, 24 June 2003, 26 June 2003, 6 October 2003, 13 October 2003, 21 October 2003, 27 October 2003, 5 November 2003, 6 November 2003, 8 January 2004, 27 January 2004 and 2 February 2004. I am writing now to let you know the results of the inquiries that have been made. THE COMPLAINT The complainants, two French citizens, are directors of the company Blue Dragon 2000, which was set up on 4 June 1999 in Agullana, in the Catalonian region of Spain.

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In summary, the relevant facts according to the complainants appear to be as follows: The complainants’ project was selected by the Local Action Group (LAG) Salines-Bassegoda to benefit from Community funds granted in the framework of the Community Initiative LEADER II. The complainants learnt that the aid application was dated 20 April 1999. However they are not the authors of this aid application and did not sign it. On 15 May 2000, the LAG paid part of the Community funds to Blue Dragon 2000 in the form of two drafts, one of 7 million pesetas and one of 2.8 million pesetas. These two drafts were kept by the bank de Sabadell and should have been destroyed when a cheque for the same amount was issued. The complainants were given the relevant cheque on 15 June 2000. On 18 September 2000, the complainants contacted the European Anti-Fraud Office (OLAF) because they suspected that the Community funds that had been requested on behalf of their company were subject to fraud. On 19 September 2000, the complainants met two investigators from OLAF. After considering the information given by the complainants, the investigators concluded that Blue Dragon 2000 should have received only a very small amount of Community funds, as most of the eligibility criteria were not met. In October 2000, the complainants informed the Spanish authorities of irregularities in the granting of funds in the framework of the Community initiative LEADER II. On 15 December 2000, the complainants handed over to OLAF a set of relevant documents. On 2 April 2001, the regional government (Generalitat) of Catalonia gave the complainants a copy of the LEADER file concerning Blue Dragon 2000. According to the complainants, most of the documents in this file are false, since they have been backdated. On 4 May 2001, the complainants personally handed a copy of this file to two OLAF investigators. In June 2001, the complainants learnt that OLAF was opening an inquiry. In November 2001, the complainants were informed that two OLAF investigators dealing with the matter had been transferred to other duties. At the same time, the complainants received a copy of the report of an inspection carried out by the regional government of Catalonia. The report found a number of problems in the Blue Dragon 2000 project, in particular, that the project had not started and

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recommended that the Community funding that had been paid for the project should be recovered. On 20 and 25 February 2002, the complainants wrote to the Commission (Directorate General for Agriculture). They requested the assistance of the Commission to obtain compensation for the damage they had suffered. They also wished to have access to the findings of OLAF's inquiry and information on European Community services which could provide them with advice on their case. Finally, they asked for protection. On 9 March 2002, the complainants lodged a complaint with the European Commission against Spain concerning problems in the management, the control and the distribution of Community funds in the framework of the Community Initiative LEADER II in the Region of Catalonia. They also complained to the European Court of Human Rights. In June 2002, the European Court of Human Rights declared their complaint inad

Documents

elibrary.ltelibrary.lt/.../ES/Leidiniai/ombudsman/compilation04_en.pdf · 2006. 3. 26. · 2 DECISION OF THE EUROPEAN OMBUDSMAN ON COMPLAINT 1435/2002/GG AGAINST THE EUROPEAN COMMISSION