Annual report 2002 - EOI

DECISIONS FOLLOWING AN INQUIRY 155
The complainant upheld its position that it is difficult to understand how the Commission
can claim the entire amount of what it considers as a surplus when there are other donors
who would like to see money returned in case of such a surplus. The complainant was
grateful to the Commission for having changed the contract for the year 2000, but stressed
that it did not mean that it had to accept an interpretation of the previous contract that it
strongly disputed and that cost EEB a lot of money. Concerning the differences between
the contracts from 1997-1998 and 1999, they exist but are of no relevance for the case. For
all three years the Commission was implementing the same legal framework, i.e. Council
Decision 97/872/EC, that was to support activities and administrative costs in the context
of the general working programme. The 1999 contract has an Annex with General Terms
and Conditions, whereas the previous ones had one on Financial Conditions only. The
definition of eligible costs is however similar and the reference to profits is similar
(although in 1998 it was not further specified). The complainant stated that, as EEB had
not generated any profit or presented a provision for possible future losses or debts as
eligible costs, this is irrelevant for the final assessment. The complainant regretted that the
Commission did not accept the Ombudsman’s proposal for a friendly solution and asked
the Ombudsman to maintain his conclusion.
In these circumstances, the Ombudsman considers that a friendly solution has not been
achieved.
THE DECISION
1 Reduction of payment - the right to establish a working capital/reserve fund
1.1 The complainant had entered into a Grant Agreement (SUF 99/84875) with the
European Commission in 1999. Following recommendations from its auditors and in order
to practice sound financial management, the complainant aimed at setting up a working
capital/reserve fund using the membership fees. No financial contribution from the
Commission or from matching funds was used to set up the reserve. However, the
Commission decided to reduce its contribution with the amount put in the reserve in 1999.
The complainant alleged that the Commission wrongfully decided to reduce the final
payment to the EEB under the Agreement with € 30,787.27. The complainant claimed repayment
of the same amount.
1.2 In its first opinion, the Commission stated that the contract concluded in 1999, which
was the subject of EEB’s complaint, did not provide a suitable legal base for supporting
the EEB’s claim to set up a reserve. The Commission concluded that the Grant Agreement
had to be followed and that the Agreement did not allow for any other interpretation than
a total recovery of money in excess. The Agreement foresees such a reduction and makes
it binding for the beneficiaries. In its reply to the proposal for a friendly solution, the
Commission maintained its position and referred to the provisions of the Grant Agreement
and of the General Terms and Conditions.
1.3 The Ombudsman notes that the dispute is related to an Agreement concluded between
EEB and the Commission. According to Article 195 of the EC Treaty, the European
Ombudsman is empowered to receive complaints “concerning instances of maladministration
in the activities of the Community institutions or bodies”. The Ombudsman
considers that maladministration occurs when a public body fails to act in accordance with
a rule or principle binding upon it. Maladministration may thus also be found when the
fulfilment of obligations arising from contracts concluded by the institutions or bodies of
the Communities is concerned.
1.4 However, the Ombudsman considers that the scope of the review that he can carry out
in such cases is necessarily limited. In particular, the Ombudsman is of the view that he
should not seek to determine whether there has been a breach of contract by either party,