Ref. Ares(2018)4046685 - 31/07/2018
III.
The Options
Given DIGIT's confirmation that the record extracted from the applications with their
corresponding timestamp, which is based on the time of DIGIT's system, is fully reliable,
complete and accurate6, we have considered the following options:
1. Cancelling the Call
The Commission is always free to cancel a call for projects before the procedure is
complete. In our first consultations, neither INEA nor BUDG has considered it necessary
to cancel the call on the basis of the problems encountered; they have been willing to
explore options (below) based on the continued validity of the call.
The consequences of cancelling the call from a reputational point of view are very
significant, considering the high expectations raised and the flood of applications, all of
which would have to be resubmitted in a subsequent call. Moreover, reasons would have
to be provided for the cancellation, which would point to - or at least risk raising
suspicions about - the robustness of the system and the soundness of the initiative itself,
which is still in its pilot phase. Besides, a new first call could only be ready once the
clock time system is fixed, which DIGIT confirmed could take several weeks or more.
Only the second category of applicants - those which might have been constrained from
applying at 13:00 because of their PC clocks - could hypothetically be better off with this
solution. However, should the call not be cancelled, they still have the same chances in
the following 4 calls, and their chances in a re-run of the first call are not higher than in
any subsequent call for a similar number of vouchers.
While the circumstances are certainly not what would have been wished for, we believe
that legal risks are rather marginal. First, the small value of the vouchers (15.000€)
makes litigation an unattractive prospect. Second, the huge number of applications
relative to vouchers available, in a very short space of time, is likely to deter most
applicants from contesting the outcome of a procedure in which the difference between
success and failure could, for most countries, be measured in milli- or nanoseconds.
Third, while the Portal application design may have had an effect on the ability of
applicants to apply either early or late, this was the case only in conjunction with the
applicants themselves having unsynchronised, i.e. inaccurate, PC clocks. Fourth,
category (ii) applicants are very unlikely to be able to provide concrete evidence that they
came late solely because of the asynchronicity of clocks, while category (i) applicants are
unlikely to be able to show positively that their clocks were not adjusted in order to
exploit what was, it transpires, a relatively easily detectable flaw in the application7.
Fifth, none of the applicants in categories (i) and (ii) has anything tangible to gain by the
annulment of the first call.
Some of the foregoing arguments could certainly play out differently in terms of
communications and public opinion, but the balancing of different reputational risks goes
beyond the scope of the current consultation and is being considered at the political level.
6
Ibidem.
7
Moreover, for the early applicants, we have no way of knowing, even if we were to take their own
respective PC clocks as the benchmark, whether they were more rapid than those who could and
did apply directly after 13:00h CEST.
3