Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law

(2002/C 166/03)

In its annual reports on monitoring the application of Community law, the Commission has regularly acknowledged the vital role played by the complainant in detecting infringements of Community law, compliance with which it ensures on the basis of, inter alia, the infringement procedure laid down by Article 226 of the Treaty establishing the European Community (the EC Treaty) and Article 141 of the Treaty establishing the European Atomic Energy Community (the EAEC or Euratom Treaty).

In 1999 the Commission published a notice containing a standard form for complaints to be submitted to it where a Member State fails to comply with Community law (OJ C 119, 30.4.1999, p. 5) in the context of the infringement procedure laid down by Article 226 of the EC Treaty and Article 141 of the EAEC Treaty.

This notice also sets out on the back of the complaint form the administrative measures which exist for the benefit of the complainant.

The notice was the result of the European Ombudsman's own-initiative inquiry and the Commission's subsequent undertaking to comply with certain administrative formalities, and in particular to inform the complainant in advance of any decision to close a case.

Finally, in 2001, in its reply to criticisms from the European Ombudsman when the complaint by P.S. Emfietzoglou against the Macedonian Metro Joint Venture (995/98/OV) was shelved, the Commission undertook to publish a consolidated version of the internal procedural rules applicable to its relations with the complainant in the context of infringement proceedings.

The Commission hereby sets out in the Annex the administrative measures for the benefit of the complainant with which it undertakes to comply when handling his/her complaint and assessing the infringement in question.

However, these measures do not alter the bilateral nature of the infringement procedure laid down by Article 226 of the EC Treaty and Article 141 of the EAEC Treaty. In this respect, the Commission must point out that, in accordance with a long line of cases decided by the Court of Justice, it has the discretionary power to decide whether or not to commence infringement proceedings and to refer a case to the Court(1). The Court has also acknowledged the Commission's power to decide at its own discretion when to lodge an action(2).

Finally, in the area of infringement proceedings, the Commission applies the rules on access to documents laid down by Parliament and Council Regulation (EC) No 1049/2001 on public access to European Parliament, Council and Commission documents(3), as implemented by the Commission Decision of 5 December 2001 amending its rules of procedure (OJ L 345, 29.12.2001, p. 94).

(1) Judgment of 6 December 1989 in Commission v Greece [1989] ECR 4159; Judgment of 27 November 1990 in Commission v Greece [1990] ECR I-4299; Judgment of 21 January 1999 in Commission v Belgium [1999] ECR I-275; Judgment of 25 November 1999 in Case C-212/98 Commission v Ireland [1999] ECR I-8571.

(2) Judgment of 1 June 1994 in Commission v Germany [1994] ECR I-2039; Judgment of 10 May 1995 in Commission v Germany [1995] ECR I-1097.

(3) OJ L 145, 31.5.2001, p. 43.

ANNEX

RELATIONS WITH THE COMPLAINANT REGARDING INFRINGEMENTS OF COMMUNITY LAW

1. Definitions and scope

"Complaint" shall mean any written approach made to the Commission reporting measures or practices contrary to Community law. Examination of a complaint may lead the Commission to open infringement proceedings.

"Infringement proceedings" shall mean the pre-litigation phase of an action for non-compliance lodged by the Commission on the basis of Article 226 of the Treaty establishing the European Community (EC Treaty) or Article 141 of the Treaty establishing the European Atomic Energy Community (Euratom Treaty).

These measures shall apply to relations between complainants and Commission departments in connection with infringement proceedings. They shall not apply to complaints relating to other Treaty provisions, particularly complaints regarding State aid covered by Articles 87 and 88 of the EC Treaty and Regulation (EC) No 659/1999.

2. General principles

Anyone may file a complaint with the Commission free of charge against a Member State about any measure (law, regulation or administrative action) or practice by a Member State which they consider incompatible with a provision or principle of Community law.

Complainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are principally and directly concerned by the infringement complained of.

The Commission may decide whether or not further action should be taken on a complaint.

3. The recording of complaints

Any complaint which may be examined shall be recorded in the central registry of complaints kept by the Secretariat-General of the Commission.

Correspondence shall not investigated as a complaint by the Commission, and therefore not recorded in the central registry of complaints, if:

- it is anonymous, fails to bear the address of the sender or bears an incomplete address,

- it fails to refer, explicitly or implicitly, to a Member State of the Community to which the measures or practice contrary to Community law may be attributed,

- it reports the actions of a private person or body, unless the measure or complaint reveals the involvement of public authorities or reports a failure to act in response to these practices on the part of said authorities. In all cases, the Commission shall verify whether the correspondence may be considered as a complaint against behaviour covered by Articles 81 and 82 of the EC Treaty,

- it fails to set out a grievance,

- it sets out a grievance with regard to which the Commission has adopted a clear, public and consistent position; this position shall be communicated to the complainant,

- it sets out a grievance which is clearly not covered by the field of application of Community law.

Where there is doubt regarding the nature of a complaint, the Secretariat-General of the Commission shall consult the department(s) concerned within two weeks of receipt. If the departments fail to reply within fifteen working days, the complaint shall be formally recorded at the central registry of complaints.

4. Acknowledgement of receipt

The Secretariat-General of the Commission shall issue an initial acknowledgement of all correspondence within fifteen working days of receipt.

Any correspondence registered as a complaint shall be acknowledged again by the Secretariat-General within one month from the date of despatch of the initial acknowledgement. This acknowledgement shall state the case number of the complaint, which must be quoted in any correspondence.

Where a number of complaints are lodged in relation to the same grievance, individual acknowledgements may be replaced by a publication in the Official Journal of the European Communities and on the European Communities' Europa server.

Where the Commission decides not to register the correspondence as a complaint, it shall notify the author to that effect by ordinary letter setting out the reason(s) provided for under point 3(2).

Where necessary, the Commission will inform the complainant of any possible alternative forms of redress, such as recourse to national courts, the European Ombudsman, a national ombudsman or any other national or international complaints procedure.

5. Methods of submitting a complaint

Complaints must be submitted in writing, by letter, fax or e-mail.

They shall be written in one of the official Community languages.

To speed up the processing of complaints, the Commission will provide complainants with a complaint form, which is published in OJ C 119, 30.4.1999, p. 5, and is available from the Commission on request or on the European Communities' Europa server at the following address:

http://europa.eu.int/comm/secretariat_general/sgb/lexcomm/form_en.htm

There is an annex to the form which sets out the general principles of infringement proceedings and stresses that any finding of an infringement by the Court of Justice has no impact on the rights of the complainant. Complainants are also invited to use the means of redress available at national level.

Complainants are not required to use the form.

Complaints may be sent to the Commission Secretariat-General, B-1049 Brussels, fax (32-2) 295 39 13, e-mail: SG-PLAINTES@cec.eu.int, or lodged with one of the Commission's offices in the Member States.

6. Protection of the complainant and personal data

Disclosure of complainants' identities and information submitted by them to the Member State concerned is subject to their prior agreement and complies inter alia with Regulation (EC) No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

7. Communication with complainants

The Commission departments will contact complainants and inform them in writing, after each Commission decision (formal notice, reasoned opinion, referral to the Court or closure of the case), of the action taken in response to their complaint.

Where a number of complaints are lodged in relation to the same grievance, individual acknowledgements may be replaced by a publication in the Official Journal of the European Communities and on the European Communities' Europa server.

At any point during the procedure complainants may ask to explain or clarify to the Commission departments, on the spot and at their own expense, the grounds for their complaint.

8. Time limit for investigating complaints

As a general rule, Commission departments will investigate complaints with a view to arriving at a decision to open proceedings or close the case within not more than one year from the date of registration of the complaint by the Secretariat-General.

Where this time limit is exceeded, the Commission department responsible for the case will inform the complainant in writing.

9. Outcome of the investigation of complaints

After investigating the complaint, the departments will submit to the Commission a proposal either to open proceedings against the Member State in question by sending it a letter of formal notice, or to close the case and take no further action.

The Commission will decide on the matter at its discretion. This discretion shall cover not only the possibility of opening or terminating an infraction procedure but also the choice of complaint.

Complainants will be informed in writing of the decision taken by the Commission in connection with their complaint and any subsequent Commission decisions on the matter.

Where a number of complaints are lodged in relation to the same grievance, individual acknowledgements may be replaced by a publication in the Official Journal of the European Communities and on the European Communities' Europa server.

10. Closure of the case

Unless there are exceptional circumstances requiring urgent measures, where a Commission department intends to propose that no further action be taken on a complaint, it will give the complainant prior notice thereof in a letter setting out the reasons why it is proposing that the case be closed and inviting the complainant to submit any comments within a period of four weeks.

Where a number of complaints are lodged in relation to the same grievance, individual acknowledgements may be replaced by a publication in the Official Journal of the European Communities and on the European Communities' Europa server.

Where there is no reply from the complainant, the complainant cannot be contacted for reasons for which he/she is responsible, or the complainant's comments do not prompt the department to reconsider its position, the proposal to close the case will go forward and the complainant will be informed of the Commission's decision.

Where the complainant's comments prompt the department concerned to reconsider its position, investigation of the complaint will continue.

11. Simplified procedure for closing cases

Cases in which a letter of formal notice has not been dispatched may be closed under a simplified administrative procedure that does not involve discussion by the Commission.

This procedure may be applied in cases where initial examination by the Commission departments has made it quite clear that:

- the complaint is manifestly groundless, or

- the complaint is irrelevant, or

- there is no evidence, or insufficient evidence, in support of the allegations made in the complaint, or

- no more has been heard from the complainant.

Where a Commission department intends to apply this procedure, it will inform the complainant thereof in accordance with the procedure described in point 10.

12. Publicising infringement decisions

Commission decisions on infringement cases are published within one week of their adoption on the Secretariat-General's Internet site at the following address:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm

infractions

Decisions to issue a reasoned opinion or to refer a case to the Court of Justice are also publicised by means of a press release, unless the Commission decides otherwise.

13. Access to documents on infringement cases

Access to documents on infringement cases is governed by Parliament and Council Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43), as implemented by the Commission Decision of 5 December 2001 amending its Rules of Procedure (OJ L 345, 29.12.2001, p. 94).

14. Complaint to the European Ombudsman

Where a complainant considers that, in handling his/her complaint, the Commission has been guilty of maladministration by failing to follow these procedures, he/she may refer the matter to the European Ombudsman under Articles 21 and 195 of the EC Treaty.