The background to the complaint

1. This own-initiative inquiry concerns the refusal of the EU Delegation to Sierra Leone (the 'Delegation') to reimburse the travel expenses of an expert involved in EuropeAid project 2008/154741/1- "Technical Assistance to the Feeder Roads Department - Sierra Leone Roads Authority" (the 'Project').

2. The subject matter of the own-initiative inquiry came to the Ombudsman's attention following a complaint from the expert concerned (the 'complainant'), which was registered under reference number 2232/2010/AN. Given that the complainant was not an EU national or resident, the Ombudsman declared his complaint inadmissible on the basis of Article 2(2) of his Statute[1]. The Ombudsman nevertheless opened the present own-initiative inquiry, in accordance with Article 3(1) of his Statute[2], since he considered that the complaint raised a serious concern regarding fairness which, if confirmed, could negatively affect the image of the Delegation and, ultimately, that of the European Union. The facts of the case are as follows.

3. The Government of Sierra Leone and the European Commission agreed on a project for the construction in Sierra Leone of 650 km of rural roads financed under the 9th European Development Fund. In this context, it was also agreed to provide technical assistance to the Sierra Leone Road Authority which was responsible for supervising the construction of the roads. In order to implement this technical assistance, a Framework contract was launched and a Specific Contract was concluded on 16 May 2008 between the European Commission, represented by the Delegation, and a consortium. According to the offer, one of the members of the consortium (the 'Contractor') was the 'implementing company' for this contract. In September 2009, the Contractor subcontracted the on-site technical assistance to the complainant's company.

4. In his capacity as a subcontracted consultant, the complainant took several return flights from Zambia to Sierra Leone in the framework of his duly approved missions. On one occasion, he was attacked in Port Loko (Sierra Leone) and the contents of his wallet, including several boarding passes for the said flights, were lost.

5. The Contractor refused to pay for the complainant's air travel expenses. It informed the complainant that this was a consequence of the Delegation's refusal to reimburse such expenses on the ground that air travel costs can only be reimbursed upon submission of the appropriate supporting documents, including boarding passes. The complainant subsequently exchanged several e-mails with the Contractor, challenging this refusal, but his efforts were to no avail. The Delegation was copied in those e-mails.

6. On 28 June 2010, the Contractor informed the Delegation that it had waived the reimbursement of the complainant's travel costs and requested the Delegation to deduct all the expenses related to his international travel arrangements from the corresponding invoice. On 23 August 2010, the Contractor also informed the Delegation that the complainant's grievances were being handled internally and that they required no attention from the Delegation. The Contractor apologised to the Delegation for having to "witness" the complainant's discontent, which the Contractor considered unreasonable.

7. On 29 September and 3 October 2010, the complainant contacted the Delegation directly concerning its refusal to reimburse his travel expenses The Delegation replied on 4 October 2010. It requested the complainant to cease contacting it, since the matter concerned the complainant's contract with the Contractor and therefore the Delegation could not get involved.

8. The complainant turned to the European Ombudsman on 5 October 2010. In his complaint, he stressed that no travel expenses had been reimbursed to him, although he had duly submitted some of the relevant boarding passes to the Contractor[3]. The latter stated that this was due to the Delegation's refusal to pay for the relevant costs.

The subject matter of the inquiry

9. The Ombudsman opened an own-initiative inquiry into the following allegation and claim.

Allegation:

The Delegation failed properly to handle the complainant's requests concerning the reimbursement of his travel expenses.

Claim:

The Delegation should deal with the complainant's requests and provide him with a reasonable explanation of its position concerning the reimbursement of his travel expenses.

The inquiry

10. The Ombudsman opened his own-initiative inquiry on 15 December 2010, when complaint 2232/2010/AN was closed as inadmissible. The complainant was informed accordingly.

11. As a first step in his own-initiative inquiry, the Ombudsman contacted the Commission's services in an attempt to find a rapid solution to the complainant's grievances. At that stage, the Ombudsman's efforts aimed at obtaining for the complainant a better explanation from the Delegation for its decision not to reimburse any of the complainant's travel expenses, although, as he stated, he had submitted the necessary boarding passes for some of them.

12. The Delegation replied to the Ombudsman on 20 January 2011. The Ombudsman considered that the Delegation's reply was not satisfactory. Therefore, on 23 February 2011, he proceeded to the second step of his own-initiative inquiry. Given that, since the entry into force of the Lisbon Treaty, the EU Delegations to third countries form part of the European External Action Service ('EEAS'), the Ombudsman requested the latter to submit, by 31 May 2011, an opinion on the allegation and claim included in his own-initiative inquiry. The complainant and the European Commission were informed accordingly.

13. On 14 June 2011, the Ombudsman drew the EEAS' attention to the fact that it had failed to meet the above deadline.

14. On 23 June 2011, the EEAS informed the Ombudsman that, since the issues raised by the own-initiative inquiry were related to the management of EU programmes, the own-initiative inquiry should be directed to the European Commission. The Ombudsman thus redirected his own-initiative inquiry to the Commission on 15 July 2011, while stressing that the delay with which the EEAS had informed him of its lack of competence was particularly regrettable. The complainant was informed accordingly.

15. On 15 September 2011, the Commission requested an extension to 31 October 2011 of the deadline for providing an opinion on the Ombudsman's own-initiative inquiry. Despite a reminder from the Ombudsman, the Commission only submitted its opinion on 6 February 2012. It was forwarded to the complainant with an invitation to submit observations, which he did on 19 March 2012.

16. On 24 April 2012, the Ombudsman asked the Commission further questions. It was requested to reply by 30 June 2012. In sum, the Ombudsman wished to know whether the Commission had received a new invoice from the Contractor, based on the further supporting documents which the complainant stated he had provided the Contractor with in the meantime.

17. On 8 June 2012, the Commission requested an extension of the deadline for replying to the Ombudsman's further inquiries to 31 July 2012. It eventually replied on 17 August 2012. On 19 September 2012, the complainant sent his observations on the reply.

The Ombudsman's analysis and conclusions

A. Allegation concerning the handling of the complainant's request for reimbursement and related claim

Arguments presented to the Ombudsman

18. In its reply to the first step of the Ombudsman's own-initiative inquiry, the Delegation reiterated that the complainant had worked on the Project as a subcontracted expert, and that the Delegation had a contractual relationship with the Contractor, not the complainant. The Delegation stated that, as it had already informed the complainant in a letter dated 17 November 2010[4], it would not get involved in the issue.

19. In its opinion, the Commission highlighted that it has no contractual relationship with the complainant and that it cannot be held liable for the decisions taken by the Contractor as far as the complainant's contractual rights are concerned. In this regard, the Commission clarified that the Leading Partner of the consortium to which the Contractor belongs is "ultimately responsible for all contractual and financial aspects of the Framework Contract and the individual assignments". It also remains the sole contractually liable party[5]. For the purposes of the financial implementation of the contract, this also implies that "the accuracy of the invoice and of the supporting document remains the unique responsibility of the Leading Partner of the Consortium".

20. The above explains, in the Commission's view, why the Delegation has only addressed the issue with the Contractor and has not dealt with the correspondence sent by the complainant directly.

21. The Commission further explained that these principles derive directly from the assumption that contracts can only produce effects between the contracting parties. They aim at avoiding the eventuality whereby subcontractors interfere in issues relating to the contract between the Contracting Authority and a contractor and, conversely, at protecting the Commission from having to interfere in third-party relationships or from being caught up in contractual disputes arising between a contractor and its subcontractors. The principles also avoid a massive workload increase that would result from giving the possibility to subcontractors or experts to contest the Contracting Authority's financial and contractual decisions.

22. As regards the complainant's air travel expenses, the Commission stated that they were not reimbursed because the Delegation was not provided with the appropriate supporting documents. The Commission referred to Article 56 of the applicable Financial Regulation[6], which stipulates that "[v]alidation of any expenditure shall be based on valid supporting documents attesting the creditor's entitlement, on the basis of a Statement of Services actually rendered, ... or on the basis of other documents justifying payment." Moreover, the Framework Contract provides that "[a]ll reimbursable costs will be reimbursed on submission of the original supporting document such as boarding passes, invoices, receipts (for taxi e.g.) or equivalent"[7].

23. Therefore, these rules required the complainant to submit, for each trip: (i) a valid invoice; (ii) two original documents, one proving that he flew to and one proving that he flew from the country on the days of his job assignments in that country; and (iii) a document confirming payment and clearly indicating the flight ticket numbers.

24. However, in the claim submitted by the Contractor for the reimbursement of the complainant's four international flights, three ticket stubs and six boarding passes were missing. The Delegation immediately contacted the Contractor and expressed its willingness to accept alternative supporting documents issued by the travel agency instead of the missing boarding passes. It even detailed what kind of documents would be acceptable instead. However, the Contractor declined this offer, stating that it "tried [its] best to provide other documents, however without success."

25. The Commission further stated that, "[f]ollowing this contradictory exchange, no other document having been submitted, the Delegation proceeded with the invoice after deducting the amount of all [the complainant]'s international arrangements." This decision was never contested by the Contractor, who waived the claim for reimbursement of the complainant's air travel expenses and issued a credit note in favour of the Delegation corresponding to that amount. The Contractor also requested the Delegation not to get involved in the matter.

26. The Commission was sorry to hear that the complainant's boarding passes were lost due to a robbery. It stated that, in such circumstances, the Delegation would have granted additional time for him to be able to submit, though the Contractor, alternative proof of the journeys he undertook. However, the Delegation had no reason to doubt the information provided to it by the Contractor.

27. The Commission thus considered that, under the circumstances, it could not proceed to the reimbursement of the complainant's air travel expenses.

28. As regards the complainant's statement, in his complaint, that he had submitted supporting documents for some flights, and yet none of them were reimbursed, the Commission stated that it had not received any such documents from the Contractor. Moreover, the complainant never sent any original supporting documents to the Delegation, either. Had he done so, the latter would have forwarded them to the Contractor in order for it to issue the corresponding invoice for the relevant amount.

29. Nevertheless, following the opening of the Ombudsman's own-initiative inquiry, the Commission informed the Contractor that it would keep the budget line for the contract open, in case the Contractor could, at a later time, supply the Commission with the appropriate supporting documents for the complainant's relevant expenses. The Contractor informed the Commission that it had indeed received further supporting documents from the complainant and that it was in the process of examining them. However, by the date of the opinion, it had not provided any documents to the Commission, which stated that it would deal with this new claim if, and as soon as, it received the relevant documents from the Contractor.

30. In his observations, the complainant stated that he had submitted the necessary original evidence of the flights he took in order to be reimbursed. He felt disappointed that the payment had not yet been made.

31. In its reply to the Ombudsman's further inquiries, the Commission stated that the Delegation had repeatedly requested the Contractor to submit a new invoice based on the further supporting documents received from the complainant. The Contractor postponed sending this invoice on the ground that the relevant documents were with its auditors and the Delegation granted it additional time. On 4 July 2012, the Contractor informed the Delegation that it had prepared the invoice and that it had sent it to the Leading Partner of the consortium, which would submit it to the Delegation by the end of that month. The Commission stated that, as soon as it receives the invoice, and after carrying out the usual verifications, it will proceed to payment.

32. In his observations on the Commission's further reply, which he submitted on 19 September 2012, the complainant stated that he had no news on the matter.

The Ombudsman's assessment

33. From the information available to the Ombudsman at the beginning of his own-initiative inquiry, it appeared that, for reasons that were independent of the complainant's will, he was unable to submit to the Delegation the boarding passes in support of his claim for the reimbursement of his travel expenses. Moreover, it appeared that the complainant had not even been reimbursed for those travel expenses for which he had submitted the relevant boarding passes. It also appeared that the Contractor had informed the complainant that it was the Delegation which had refused the reimbursement, and advised him to contact the Delegation directly, which the complainant did.

34. The Ombudsman agreed with the Delegation's position, as expressed in its exchange of correspondence with the complainant, that it could not get involved in the bilateral dispute between the complainant and the Contractor, since it had no contractual relationship with the complainant. However, the Ombudsman was of the view that the Delegation could at least have considered the possibility of intervening in some other way in order for the dispute to be settled, since the complainant's travels had undoubtedly taken place in the framework and for the purposes of the project, an aspect which nobody contested. This would not only have been in the interest of the complainant, but also of the European Union's reputation among international consultants willing to participate in EU funded projects in third countries, precisely because of the trust that the European Union inspires.

35. The own-initiative inquiry revealed, however, that, contrary to the initial indications, the Delegation was receptive to the complainant's situation. The Commission explained in detail the steps which the Delegation took in order to ensure that the complainant could obtain the reimbursement of his travel expenses, despite the unfortunate incident which led to his losing his boarding passes.

36. First, the Delegation informed the Contractor not only of the possibility to submit alternative documents, but also which specific documents would be accepted. Second, the Delegation took the formal decision to exclude those expenses from the paid invoice only when the Contractor informed it that, despite all its efforts, no alternative supporting documents could be submitted. The Contractor reinforced this position by issuing a credit note for the relevant amount. Third, although the Contractor waived its claim for reimbursement of the complainant's travel expenses, the Delegation kept the budget line open and was willing to accept a new invoice if alternative supporting documents were found at a later stage. The Delegation informed the Contractor accordingly, as soon as it had knowledge of the complaint. Fifth, after the Ombudsman opened his own-initiative inquiry, the Delegation insisted with the Contractor that it submit a new invoice based on the supporting documents provided by the complainant, and repeatedly extended the deadline for the submission of such invoice. Sixth, the Commission expressed its unreserved willingness to proceed to payment as soon as it receives and verifies the new invoice.

37. The above bears witness to the Delegation's constructive attitude. Despite the negative image of the complainant which the Contractor seems to have depicted to the Delegation, and despite its delay in submitting a new invoice after the complainant provided further supporting documents, the Delegation insisted on receiving such an invoice. By so doing, the Delegation complied with its duty of care towards the complainant, which is applicable regardless of whether or not a contractual relationship exists. The Ombudsman commends this behaviour. He trusts that, in future, the Delegation will adopt a friendlier attitude towards subcontracted consultants, which duly reflects its underlying commitment to treating them entirely fairly.

38. In light of the foregoing, the Ombudsman concludes that there has been no instance of maladministration in the present case. The Ombudsman trusts that the Commission will inform him, as soon as possible, about the outcome of the complainant's request for reimbursement.

B. Conclusions

The Ombudsman closes his inquiry with the following conclusion:

No instance of maladministration has occurred in this case. The Ombudsman trusts that the Commission will inform him, as soon as possible, about the outcome of the complainant's request for reimbursement.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 17 January 2013

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[1] Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties, adopted on 9 March 1994 (OJ L 113, 4.5.1994, p. 15) and amended by its decisions of 14 March 2002 (OJ L 92, 9.4.2002, p. 13) and 18 June 2008 (OJ L 189, 17.7.2008, p. 25). Article 2(2) reads: "Any citizen of the Union or any natural or legal person residing or having his registered office in a Member State of the Union may, directly or through a Member of the European Parliament, refer a complaint to the Ombudsman in respect of an instance of maladministration in the activities of Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. The Ombudsman shall inform the institution or body concerned as soon as a complaint is referred to him." Complaint 2232/2010/AN was closed on 15 December 2010.

[2] "The Ombudsman shall, on his own initiative or following a complaint, conduct all the enquiries which he considers justified to clarify any suspected maladministration in the activities of Community institutions and bodies..." (emphasis added).

[3] The complainant provided further information by e-mails of 15, 17, 18, 21, 22 and 29 November 2010, 12 December 2010 and 17 January 2011.

[4] Sent in reply to a letter which the complainant had sent to the Delegation on 4 November 2010, after submitting the complaint to the Ombudsman, a copy of which he provided immediately after.

[5] Global Terms of Reference for Framework Contracts point 8.4, "Sub-contracting" and point 6.1 "Consortia".

[6] Financial Regulation of 27 March 2003 applicable to the 9th European Development Fund, OJ L 83, 1.4.2003, p.1.

[7] Global Terms of Reference for Framework Contracts, point 8.4, "Invoicing".