Decision of the European Ombudsman on Complaint 3545/2004/BB Against the European Commission

Decision of the European Ombudsman on complaint 3545/2004/BB against the European Commission

Decision Case 3545/2004/BB - Opened on 19/01/2005 - Decision on 01/02/2006

Strasbourg, 1 February 2006 Dear Mr G.,

On 2 December 2004, you made a complaint to the European Ombudsman, on behalf of ForTel (the complainant), claiming that the European Commission should make funds available to Eurostat so that CESD Communautaire a.s.b.l. can pay ForTel for the IT equipment supplied to the Federal State Statistics Service Goskomstat in Russia, on behalf of Eurostat.

On 19 January 2005, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 22 April 2005 and on 10 June 2005 I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you. On 6 December 2005, the secretariat of the European Ombudsman contacted the complainant by phone in order to inquire whether the complainant had received the outstanding payment.

I am writing now to let you know the results of the inquiries that have been made.

I apologise for the length of time it has taken to complete my inquiries. THE COMPLAINT The complaint concerns the non-payment of IT equipment supplied by ForTel to the Federal State Statistics Service Goskomstat in Russia, on behalf of Eurostat. Eurostat and Goskomstat cooperate under the Partnership and Cooperation Agreement. ForTel was a subcontractor of CESD Communautaire a.s.b.l. (CESD) in the context of the execution of the supply contract n. 99-0095 concluded between CESD and the European Commission within the framework of the Tacis programme (Technical Assistance to CIS countries).

According to the complainant the relevant facts are, in summary, as follows:

In September 2002, ForTel concluded a supply contract 4588-7/10/202-BR-ASTAT-4 of EUR 44 949.00 with CESD which in turn had a contract with the Commission. The Commission was to provide the funding for the Tacis programme. In November 2002, ForTel made a full delivery to Goskomstat according to the terms of the supply contract. However, the complainant has not received from CESD the final payment of the contract, namely EUR 33 711.75.

1 The complainant alleges non-payment of EUR 33 711.75 by CESD because the Commission has not provided the necessary funds to Eurostat, due to an investigation into the finances of Eurostat.

The complainant claims that the Commission should make funds available to Eurostat so that CESD can make the final payment of EUR 33 711.75 to ForTel for the IT equipment delivered in November 2002 under supply contract 4588-7/10/202-BR-ASTAT-4. THE INQUIRY The Commission's opinion The Commission made, in summary, the following comments:

The objective of Statistics 4 Programme for Russia, Ukraine, Armenia, Azerbaijan, Georgia, Uzbekistan and Mongolia (contract n. 99-0095) was the enhancement of technical capacities of the National Statistical offices in the selected areas. The Commission (EuropeAid Co-operation office and Eurostat) was in charge of managing the contract n. 99-0095, while CESD was responsible for both carrying out the scheduled activities and supervising the implementation of sub-contracted activities.

In September 2002, the complainant signed on behalf of ForTel a supply contract 4588-7/10/202-BR-ASTAT-4 with CESD for the supply of equipment to the Russian Federation, the cost of which amounted to EUR 44 949.

In November 2002, ForTel made full delivery according to the terms of the supply contract to CESD.

The Commission considered that the complaint should be declared inadmissible in the light of Articles 1.3 and 2.7 of the Statute of the European Ombudsman, since the complainant had in his complaint referred to related court proceedings.

In the event the complaint is not declared inadmissible, the Commission had the following comments to make:

The Commission noted that as far as the supply contract is concerned, ForTel has no contractual relationship with the Commission. This company signed the contract with CESD and not with the Commission. According both to general contractual principles and Article 3.4 of the General Conditions for Supply Contracts financed through Tacis funds attached to this contract and part thereof, the Buyer shall have no contractual relations with the sub-contractors. Therefore, the Commission has no obligations with regard to ForTel.

The last invoice submitted by CESD in the framework of contract 99-0095 which included payments for the company ForTel was the Invoice N/02/12/003. This invoice, dated 23 December 2002 for a global amount of EUR 719 938.33 (after correction EUR 707 619.71), was paid to CESD on 7 March 2003. Among the supporting documents provided by the contractor, there was invoice 282, dated 20 November 2002, concerning EUR 33 711.75 and referring to ForTel of under.

Prior to the invoice payment, a letter was sent in December 2002 to CESD by the TACIS

2 Finance Team in order to communicate notification of the contract's closure and the final payment proposed after correction of the invoice. However, none of the proposed adjustments affected the amount due for the equipment and, consequently, the entire amount claimed by the complainant for the supply contract was paid to CESD on 7 March 2003. Such payment was made both on the basis of the submitted invoice for the equipment furnished and of the final acceptance of the equipment delivered by the supplier.

As far as the Commission is concerned, as it has already been proved, invoice N/02/12/003 which covered the input from ForTel was received by the finance service of the Commission, processed according to the agreed contractual clauses and paid to CESD on 7 March 2003.

Therefore, after assessment of the file, the Commission considers that its services acted properly, respected the rules and principles binding upon it and, therefore, no instance of maladministration has taken place.

The Commission provided a copy of the Certificate of Final Acceptance which is a proof of acceptance of the equipment delivered to Goskomstat by the Supplier as well as copies of CESD Invoice N/02/12/003 and Tacis Payment Claim for the final payment and an additional sheet indicating that the equipment provided by ForTel for EUR 33 711.75 were covered under Reimbursable component D.12 Equipment of the Tacis Payment Claim. The complainant's observations The complainant appears not to have sent any observations.

On 6 December 2005, the Ombudsman secretariat contacted the complainant by phone in order to inquire whether the complainant had received the payment as the Commission appeared to have paid the invoices submitted by CESD. According to the complainant, CESD has not yet paid the outstanding sum of EUR 33 711.75. THE DECISION 1 Preliminary remark 1.1 In its opinion the Commission considered that the complaint should be declared inadmissible in the light of Articles 1.3 and 2.7 of the Statute of the European Ombudsman, since the complainant has referred to a related court case.

1.2 The Ombudsman notes that Article 1 (3) of the Statute of the European Ombudsman provides that the Ombudsman may not intervene in cases before courts. The Ombudsman notes, however, that, on the basis of the information provided by the complainant, ForTel is not a party to these court proceedings. Moreover, the case referred to by the complainant and the Commission appears to concern a different set of facts than the one constituting the basis of the present complaint. More specifically, this case appears to concern the financial implications of the Commission's decision, made after an audit of CESD's finances, not to continue its collaboration with CESD in 2004. Therefore, the Ombudsman did not consider it necessary or appropriate either to consider the complaint inadmissible or to suspend his examination of this issue pending the proceedings before the Court. 2 Alleged non-payment of EUR 33 711.75 to Eurostat 2.1 The complaint concerns alleged non-payment of EUR 33 711.75 by CESD because the Commission has not provided the necessary funds to Eurostat due to an investigation into the finances of Eurostat. According to the complainant, ForTel concluded in September 2002

3 a supply contract 4588-7/10/202-BR-ASTAT-4 of EUR 44 949.00 with CESD. This was a subcontract, concluded in relation to the execution of the contract n. 99-0095 between CESD and the Commission, in the framework of the Tacis Programme. In November 2002, ForTel made a full delivery to Goskomstat according to the terms of the supply contract. However, the complainant has not received the final payment of the contract, namely EUR 33 711.75 from CESD for the IT equipment delivered in November 2002 under supply contract 4588-7/10/202-BR-ASTAT-4.

2.2 The Commission in its opinion underlined that there is no contractual relationship between it and the complainant. According to the Commission, Article 3 (4) of the General Conditions for Supply Contracts Financed from Tacis Funds, the Buyer shall have no contractual relations with the sub-contractors. CESD submitted to the Commission an invoice N/02/12/003 for a global amount of EUR 719 938.33 (after correction EUR 707 619.71) dated 23 December 2002 relating to the supplies delivered by the complainant. According to the Commission, t his invoice submitted by CESD in the framework of contract 99-0095 included payments for the company ForTel. The Commission paid this invoice N/02/12/003 to CESD on 7 March 2003.

2.3 The Ombudsman observes that the Commission has provided evidence that it has paid the invoice N/02/12/003 and that based on the supporting documents provided by the contractor this invoice also contained an amount of EUR 33 711.75 destined apparently for ForTel. Hence, although the complainant alleges that CESD has not yet paid to it the outstanding sum of EUR 33 711.75, the Ombudsman considers that the Commission appears to have paid to CESD the sum claimed by the complainant for the provision of IT equipment it delivered in November 2002 under supply contract 4588-7/10/202-BR-ASTAT-4. Consequently, the Commission cannot be held responsible for the CESD's alleged failure to pay to the complainant the outstanding sum of EUR 33 711.75.

2.4 The Ombudsman concludes, therefore, that there appears to have been no maladministration on the part of the Commission. 3 The Commission should make available EUR 33 711.75 to Eurostat 3.1 The complainant claims that the Commission should make available EUR 33 711.75 to Eurostat.

3.2 In the light of the findings made in points 2.3 and 2.4 above, the Ombudsman cannot accept this claim. 4 Conclusion On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

4 P. Nikiforos DIAMANDOUROS