The European Ombudsman - Annual Report 1998
Date: 1999-10-18
Institutions: European Ombudsman
Subjects: European Ombudsman, activity report

18.10.1999

EN

Official Journal of the European Communities

C 300/1

I

(Information)

THE EUROPEAN OMBUDSMAN

ANNUAL REPORT 1998

(1999/C 300/01)

Strasbourg, February 1999

Mr JOS(cid:201) MAR˝A GIL-ROBLES GIL-DELGADO

President
European Parliament
Rue Wiertz
B-1047 Bruxelles

Mr President,

In accordance with Article 138e(1) of the Treaty establishing the European Community and Article 3(8) of
the Decision of the European Parliament on the Regulations and General Conditions Governing the
Performance of the Ombudsman’s Duties, I hereby present my report for the year 1998.

Jacob S(cid:214)DERMAN

Ombudsman of the European Union

C 300/2

EN

Official Journal of the European Communities

18.10.1999

CONTENTS

Page

1. FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

2. COMPLAINTS TO THE OMBUDSMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

2.1. The legal basis of the Ombudsman’s work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

2.2. The mandate of the European Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

2.2.1.

(cid:145)Maladministration(cid:146)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

2.2.2. A code of good administrative behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

2.3.

Freedom of movement and the mandate of the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

2.4. Admissibility of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

2.5. Grounds for inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

2.6. Analysis of the complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16

2.7. Advice to contact other agencies and transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16

2.8. Decisions following an inquiry by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16

2.9. Cases involving failure to reply to correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

2.10. Some issues concerning access to documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

2.10.1. Complaints about refusal of access to documents

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

2.10.2. Fair procedure in the Ombudsman’s inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

2.10.3. The Ombudsman’s power to inspect files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19

3. DECISIONS FOLLOWING AN INQUIRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

3.1. Cases where no maladministration was found . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

3.1.1. The European Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

Recovery of medical expenses

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

Rules for joining European Parliament pension scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

3.1.2. The Council of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24

Inspection to check reasons for refusal of access to documents

. . . . . . . . . . . . . . . . . . . . . . . . .

24

3.1.3. The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27

Competition: Reply to a submission (cid:151) Ombudsman’s competence . . . . . . . . . . . . . . . . . . . . . .

27

Commissioners’ salaries: request for information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

Danish taxation on imported second-hand cars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29

Tendering procedure for supply of technical services to the Commission . . . . . . . . . . . . . . . . . .

33

Alleged infringement of competition rules

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35

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Official Journal of the European Communities

C 300/3

Selection of candidates for a traineeship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40

Fraud involving the European Social Fund: alleged failure to act by UCLAF . . . . . . . . . . . . . . . .

41

Tender procedure

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

44

Financial support to Spanish custom agents after entry into force of the Internal Market

. . . . . .

45

German State aid for renewable energies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

47

Deadline for the presentation of proposals in a call for tenders

. . . . . . . . . . . . . . . . . . . . . . . . .

49

Protection against forest fires: interpretation of Regulation (EEC) No 3529/86 . . . . . . . . . . . . . .

50

Cancellation of financial assistance to a project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

51

Tariff on deer meat

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

52

Commission Decision not to initiate infringement proceedings under Article 169 of the EC
Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Refusal by a national court to request a preliminary ruling: Commission’s decision not to
pursue a related complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

53

54

Mutual acceptance of civil aviation licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

55

Price of Commission publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

56

Commission fellowship: social security contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57

Failed recruitment of an expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

58

Reserve list for recruitment

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

59

Alleged discrimination in call for tender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

60

Article 169 of
the
complainant from a meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

failure to deliver reasoned opinion and exclusion of

the EC Treaty:

61

Transfer of pension rights

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65

Package holidays Directive: alleged failure by Commission to deal properly with a complaint

. . .

65

Recruitment procedures: decision to nominate another candidate . . . . . . . . . . . . . . . . . . . . . . . .

68

Alleged failure to prevent discrimination in access to public employment . . . . . . . . . . . . . . . . . .

70

3.1.4. The Office for Official Publications of the European Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . .

70

OPOCE: Distribution system and pricing policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

70

3.2. Cases closed for other reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

72

3.2.1. The European Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

72

Allowance system for members of the European Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . .

72

3.3. Cases settled by the institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74

3.3.1. The European Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74

Recruitment: negative results of the medical examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74

Failure to provide contract documents in the language of the tenderer . . . . . . . . . . . . . . . . . . . .

75

C 300/4

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Official Journal of the European Communities

18.10.1999

3.3.2. The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

76

State aids: enforcement of Community law by the Commission . . . . . . . . . . . . . . . . . . . . . . . . .

76

Alleged lack of information further to telephone conversations . . . . . . . . . . . . . . . . . . . . . . . . .

78

Late payment of Commission’s contribution to a project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

79

Failure to keep a complainant informed of developments concerning his complaint

. . . . . . . . . .

80

3.3.3. The Office for Harmonisation in the Internal Market

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

82

Competition for temporary agents: no selection of a candidate . . . . . . . . . . . . . . . . . . . . . . . . .

82

3.4.

Friendly solutions achieved by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

83

3.4.1. The European Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

83

Travel expenses for an official visit by an MEP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

83

3.4.2. The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

85

Access to Commission’s documents

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

85

Tender exercise for a post of finance manager under the PHARE programme . . . . . . . . . . . . . . .

86

Non-renewal of an external contract: alleged failure to inform in due time . . . . . . . . . . . . . . . . .

87

3.5. Cases closed with a critical remark by the European Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . .

89

3.5.1. The European Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

89

Staff: recognition of an occupational disease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

89

Competition: failure to provide accurate information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

90

3.5.2. The Council of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

92

Council Decision 93/731/EC: meaning of (cid:145)repeat applications(cid:146) and (cid:145)very large documents(cid:146) . . . . . .

92

Council: public access to documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

95

Refusal of access to documents: inadequate reasoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

98

Open competition: failure to provide information on possible means of appeal

. . . . . . . . . . . . . 100

Access to documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

3.5.3. The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Itoiz Dam: Commission’s inability to give adequate reasons for considering there to be no
infringement

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Dispute over a research contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Competition law: alleged failure to take action and to reply to correspondence

. . . . . . . . . . . . . 114

Recognition of certificates of dentistry from non-member countries . . . . . . . . . . . . . . . . . . . . . . 117

Confidentiality of doctor-patient relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Reasons for rejection of candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Modification of grants for research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Subsidy for a film festival: inadequate reasoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

18.10.1999

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Official Journal of the European Communities

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Mutual recognition of helicopter licences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Failure to inform about the outcome of a complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

Change of recruitment policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Recruitment procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Undue delay in replying to correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

3.5.4. The Court of Auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Reimbursement of costs for applicants in a competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

3.6. Draft recommendations by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

3.6.1. The Council of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

An up-to-date list of measures adopted in the field of Justice and Home Affairs . . . . . . . . . . . . . 141

3.7. Own initiative inquiries by the Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

3.7.1. The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Age limits for recruitment

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Pension rights of local agents of the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

4. RELATIONS WITH OTHER INSTITUTIONS OF THE EUROPEAN UNION . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

4.1. The European Parliament and the Committee on Petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

4.2. The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

5. RELATIONS WITH THE NATIONAL OMBUDSMEN AND SIMILAR BODIES . . . . . . . . . . . . . . . . . . . . . . . . . 149

5.1. The liaison network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

5.2. Cooperation in dealing with complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

5.3. Cooperation with regional ombudsmen and similar bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

6. PUBLIC RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

6.1. Highlights of the year

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

6.2. Conferences and meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

6.3. Other events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

6.4. Media relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

ANNEXES

A. Statistics concerning the work of the European Ombudsman covering the period from 1 January to 31

December 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

B. The Ombudsman’s budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

C. Personnel

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

C 300/6

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18.10.1999

1. FOREWORD

Establishing the office of European Ombudsman was one of the most important achievements of the
Maastricht Treaty in relation to the citizenship of the Union. The possibility to apply to the Ombudsman
is one of the rights of European citizenship, guaranteed by Community law. In my first Annual Report
(1995), I announced that I would propose possible reforms and changes in the mandate, powers or
procedures of the European Ombudsman’s office in the Annual Report for 1998, in the light of the
experience gained since the office began work in September 1995. A large part of this foreword is
therefore dedicated to fulfilment of that undertaking. The purpose is to ponder what is still needed to
establish fully the Ombudsman’s office, so that it may serve the European citizens as effectively as
possible.

Firstly, I would like to inform readers that the structure of this Annual Report is the same as that for the
two previous full years of activity, 1996 and 1997. A significant change has been made, however, in the
selection of cases for presentation in the Report. The previous Annual Reports included all cases closed
after an inquiry. In the early years of the office, this was useful in order to give a complete picture of the
Ombudsman’s work. The growing number of cases means that to include them all is no longer defensible
from the point of view of the citizens’ needs, as many cases are in fact repetitions of earlier ones and not
really of significant public interest. In this report, therefore, I adopt the normal practice of national
ombudsman offices by including only a selection of cases, so as to keep the length of the report within
reasonable limits and ensure that it remains clear and readable.

All cases which raise significant issues of principle are of course included, as well as those raising new
issues about the competence or procedures of the Ombudsman, and those which contain findings of
general interest. For those who wish to study all cases closed after an inquiry, the website has provided
this information in a fresh and comprehensive form since July 1998 by publishing all decisions in English
and in the language of the complainant. A paper copy of any decision may also be obtained from the
Ombudsman’s office.

RESULTS

When the 1997 Annual Report was dealt with by the European Parliament, certain critical voices
suggested that the Ombudsman had success in only a small percentage of cases. This view was reached on
the basis of all received complaints, including those which are outside the mandate. I do not believe that
this way of judging the results of an Ombudsman’s activities is really fair. There is not much that can be
done about a complaint which is outside the mandate, other than to try to advise the complainant or to
transfer the complaint to a competent body. We have managed to do this in almost 80 % of such cases.

the Ombudsman’s office handled a total of 1 617 cases. Of

these, 1 372 were new
During 1998,
complaints received in 1998. One own-initiative inquiry was launched during the year, and 185 inquiries
were closed with a reasoned decision. In 45 % of these cases, either the institution settled the matter, a
friendly solution was found, or the case was closed with a critical remark.
In 1997 and 1996, the
equivalent figures were 40 % and 35 % respectively. During 1998, in 52 % of cases, no maladministration
was found. A finding of no maladministration is not always negative for the citizen. The process of
inquiry requires that the institution explain to the complainant what it has done and why. In some cases,
it even convinces the complainant that it has acted properly.

It is always necessary for an Ombudsman office to keep close watch over its results from the point of
view of the citizen. There is still much to be done in this field, but we should not forget that there has
been a continual improvement in the outcome of the cases and the number of cases dealt with. The main
aim should be that the time taken to deal with a case be shortened during the next year. The target of

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one month to decide on admissibility and one year to close a case after an inquiry has not yet been fully
reached, but should become a reality during the years to come.

Positive results can often be achieved through own-initiative inquiries conducted by the Ombudsman. The
day to day handling of complaints from citizens may bring particular problems or recurring issues to the
Ombudsman’s attention. In such cases, a positive initiative by the Ombudsman to address the matter in
question may be necessary. In November 1998, I launched an inquiry into the existence and the public
accessibility,
in the different Community institutions and bodies, of a code of good administrative
behaviour for officials in their relations with the public.

The idea of such a code has had the consistent support of the European Parliament, where Mr Roy Perry
MEP, rapporteur for the report of the Committee on Petitions on its own activities in 1996 to 1997,
called for a code of good administrative behaviour to be established for Community institutions and
bodies. The Parliament has stressed (cid:145)the importance for such a code to be,
for reasons of public
accessibility and understanding, as identical as possible for all European institutions and bodies(cid:146).

More details of the own-initiative inquiry can be found in Chapter 2 (Section 2.2.2). I hope that it will be
possible to announce positive results from this initiative in a future Annual Report.

FREEDOM OF MOVEMENT

In the original Spanish proposal to establish a European Ombudsman office, the idea was that the
Ombudsman should supervise the rights of the European citizens under Community law at all levels in
the European Union, even at the national, regional or municipal level. The high number of complaints
indicates that the European
which are outside the mandate, still about 70 % of complaints received,
citizens do not understand that the mandate of the European Ombudsman is limited only to the activities
of the Community institutions and bodies.

An analysis of complaints outside the mandate but concerning Community law, made by JosØ Mart(cid:237)nez
Arag(cid:243)n, Principal Legal Advisor in my Secretariat, and presented in Chapter 2 of this Annual Report,
shows that many such complaints concern the right to freedom of movement within the Union. Freedom
of movement is one of the rights of Union citizenship guaranteed by Article 8a of the Treaty. Would it
not be appropriate for the European Ombudsman to be able to assist the European citizens, in order that
they benefit from this fundamental right conferred upon them?

To me it seems totally proper to believe in the principle of subsidiarity and to try consistently to promote
the idea that national ombudsmen and similar bodies be encouraged and assisted in dealing with
complaints from European citizens concerning Community law. This will be even more relevant when the
Treaty of Amsterdam enters into force, bringing questions of visa, asylum and foreigners’ rights, which are
classic complaints issues for ombudsmen and similar bodies at a national
into the domain of
Community law. The right to petition the European Parliament should also be made better known,
especially in matters of principle or with more political significance.

level,

As our cooperation with the national and regional bodies has been developing so positively, I am not
prepared to propose any change at this point concerning the mandate of the European Ombudsman as
laid down in the Treaty, but undertake to increase my efforts in this field.

What really could help the citizen would be that all remedies under Community law be clearly mentioned
in the Treaty, in order properly to inform the European citizens of their rights in this respect. In a society
governed by the rule of law, the courts constitute the main system through which the rule of law is
upheld. At the moment, however, there is no provision which informs the citizen of the vital role played
by national courts in ensuring respect for Community law. Furthermore, the right to complain to national

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ombudsmen and to petition parliaments
in cases of conflicts with the administration involving
Community law should also be mentioned in the Treaty. Each Member State should have an obligation to
ensure that its legal structure includes an effective and appropriate non-judicial body to which citizens
may apply for this purpose.

I also wish to underline that the right for a European citizen to complain to the European Commission
about a possible breach of Community law of a Member State should be included in the Treaty. This
seems to be the only way to guarantee the status of the citizens as a party in this process, and to ensure
proper and transparent dealing with their complaints in the future.

THE NEED TO CHANGE THE OMBUDSMAN’S STATUTE

The European Parliament has taken an initiative to change the Financial Regulation in order to establish
an independent budget for the European Ombudsman. This initiative is to be welcomed if our office is
given the necessary time to adjust, so that the dealing with complaints is not hampered. An independent
budget from the year 2001 would be realistic in this respect. This timetable would also give the time
necessary to make the required amendment to the Ombudsman’s Statute.

Another issue concerning the Statute is of more substantial importance. It concerns the limitations for
inquiries set out in Article 3(2), according to which access to a file can be refused on (cid:145)duly substantiated
grounds of secrecy(cid:146) and officials and other servants of Community institutions and bodies, when testifying at
(cid:145)shall speak on behalf of and in accordance with instructions from their
the request of the Ombudsman,
administrations and shall continue to be bound by their duty of professional secrecy(cid:146).

I believe these limitations are unnecessary and inappropriate. The whole idea of an Ombudsman inquiry is
that the citizens can expect that all relevant facts and documents are available to the Ombudsman, even
when the information cannot be fully released to the public because it is classified. In every case, the
citizens should know that the Ombudsman’s inquiries are not restricted, and that he can inspect all
necessary files and take all needed testimonies.

The limitations laid down on the hearing of witnesses are unacceptable because, if understood literally,
they could even oblige a witness to lie (for example to cover up a fraud case) if instructed to do so by
superiors in the administration. To make a reliable inquiry possible, witnesses should only be required to
speak the truth and release all relevant
facts during an inquiry. The reasoning behind the present
provision in the Statute is in fact an obstacle to dealing properly with cases of corruption and fraud
within the European administration. If the aim is that the Ombudsman’s inquiries should contribute to
fighting possible corruption and fraud in the administration on the basis of complaints or initiatives, these
inappropriate limitations should be removed.

In practice, the Ombudsman has not yet been refused access to a file, although conversations and disputes
have arisen due to the abovementioned limitation. The process of taking testimony has not so far been
initiated. To avoid doubt, it would be better for the Treaty to make clear that the Ombudsman has full
access, for the purposes of his inquiries, to the files and documents held by Community institutions and
bodies and that officials must give full and truthful
the
requirement in Article 4(1) of the Statute that the Ombudsman and his staff must not disclose documents
or reveal information obtained in the course of inquiries should remain in force.

testimony to the Ombudsman. Naturally,

FRUITFUL COOPERATION

The Rules of the European Parliament concerning the European Ombudsman have recently been renewed
and are almost up to date. It seems necessary however to insert a provision concerning how Parliament

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deals with the Annual Report and with possible special reports of the Ombudsman, in order to ensure
that the main responsibilities in this respect be conferred on one responsible committee within the
Parliament, which when appropriate could request expert opinions from other committees depending on
the substance of the report. There is already a draft report ready about this issue and most likely the
matter will be settled before the end of this legislature, which would mean that all the needed procedures
will have been established when the new Parliament takes over in the second half of 1999.

There might be discussion about further rules regarding cooperation between the European Parliament, its
responsible committee and the Ombudsman, but to me this does not seem necessary. The goodwill so far
demonstrated in the cooperation has produced positive results and most likely the constructive and
flexible cooperation will continue and produce ever better results. Such a positive attitude and atmosphere
can never be successfully replaced by even the most detailed and sophisticated rules.

Finally, I would like to thank all Community institutions and bodies for their cooperative and constructive
attitude towards the Ombudsman’s office. I would especially like to mention in this regard the European
Parliament and its responsible committee, the Committee on Petitions, for their profound efforts and
consistent assistance in the establishing of the European Ombudsman’s office, in order that it might serve
and support the citizens of Europe, and thus enhance the relations between those citizens, the European
Union and its administration.

Jacob S(cid:214)DERMAN

31 December 1998

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2. COMPLAINTS TO THE OMBUDSMAN

The most important task of the European Ombudsman is to
deal with maladministration in the activities of Community
institutions and bodies, with the exception of the Court of
Justice and Court of First Instance acting in their judicial role.
Possible instances of maladministration come to the attention
the Ombudsman mainly through complaints made by
of
European citizens. The Ombudsman also has the possibility to
conduct inquiries on his own initiative.

Any European citizen, or any non-citizen living in a Member
State, can make a complaint to the Ombudsman. Businesses,
associations or other bodies with a registered office in the
Union may also complain. Complaints may be made to the
the
Ombudsman either directly, or through a Member of
European Parliament.

Complaints to the Ombudsman are dealt with in a public way
unless the complainant requests confidentiality. It is important
that the Ombudsman should act in as open and transparent a
way as possible, both so that European citizens can follow and
understand his work and to set a good example to others.

During 1998, the Ombudsman dealt with 1 617 cases. 1 372
of these were new complaints received in 1998. 1 237 of these
were sent directly by individual citizens, 63 came from
associations and 60 from companies. Nine complaints were
transmitted by Members of the European Parliament. 244 cases
were brought forward from the year 1997. The Ombudsman
also began one own-initiative inquiry.

As first noted in the Ombudsman’s Annual Report for 1995,
there is an agreement between the committee and the
Ombudsman concerning the mutual transfer of complaints and
petitions in appropriate cases. During 1998, three petitions
were transferred to the Ombudsman, with the consent of the
petitioner, to be dealt with as complaints. 10 complaints were
transferred, with the consent of
to the
European Parliament to be dealt with as petitions. Additionally,
there were 80 cases in which the Ombudsman advised a
complainant to petition the European Parliament. (See Annex
A, Statistics, p. 310)

the complainant,

2.1. THE LEGAL BASIS OF THE OMBUDSMAN’S WORK

The Ombudsman’s work is carried out in accordance with
Article 138e of
the European
the Ombudsman (1) and the
Community,

the Statute of

the Treaty

establishing

(1) European Parliament Decision 94/262/ECSC, EC, Euratom of 9
March 1994 on the regulations and general conditions governing
the performance of the Ombudsman’s duties, (OJ L 113, 4.5.1994,
p. 15).

the Statute. The text of

implementing provisions adopted by the Ombudsman under
the implementing
Article 14 of
provisions,
is published on the
Ombudsman’s website (http://www.euro-ombudsman.eu.int). The
text is also available from the Ombudsman’s office.

in all official

languages,

the Ombudsman’s office. However,

The implementing provisions deal with the internal operation
of
they
should form a document that will be understandable by and
useful to citizens, they also include certain material relating to
other institutions and bodies that is already contained in the
Statute of the Ombudsman.

in order that

Article 13 of the implementing provisions contains the rules
governing public access to documents held by the European
Ombudsman.

about

(Rules 159 to 161)

The Rules of Procedure of the European Parliament contain a
number of provisions
the
Parliament’s relationship with the European Ombudsman. In
July 1998, the Parliament adopted changes to Rule 161 which
were proposed by its Committee on the Rules of Procedure
(rapporteur Mr Brian Crowley (2)). A draft report proposing a
further amendment of Rule 161 is under consideration by the
Committee on the Rules of Procedure (rapporteur Mr Johannes
Voggenhuber). The proposed amendment would make clear
that the Ombudsman’s Annual and Special reports are dealt
with by the same responsible Committee (in practice the
Committee on Petitions).

2.2. THE MANDATE OF THE EUROPEAN OMBUDSMAN

to the Ombudsman are registered and
All complaints sent
informs the
acknowledged. The letter of acknowledgement
complainant of
the procedure for considering his or her
complaint and includes the name and telephone number of the
legal officer who is dealing with it. The next step is to examine
the
the
whether
Ombudsman.

is within the mandate of

complaint

The mandate of the Ombudsman, established by Article 138e
of the EC Treaty, empowers him to receive complaints from
any citizen of
the Union or any natural or legal person
residing or having its registered office in a Member State,
concerning instances of maladministration in the activities of
Community institutions and bodies with the exception of the
Court of Justice and the Court of First Instance acting in their
judicial role. A complaint is therefore outside the mandate if:

(2) A4-0416/97 (OJ C 292, 21.9.1998, p. 116).

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1.

the complainant
complaint;

is not a person entitled to make a

2.

the complaint is not against a Community institution or
body;

the Ombudsman because his employment contract at
the
the complainant
Centre had been terminated. Given that
observed that he could no longer rely on the Staff Committee
within the CTA, he particularly wanted to know from the
Ombudsman which forms of legal redress were open to him.

3.

4.

it is against the Court of
Instance acting in their judicial role; or

Justice or the Court of First

does

it
maladministration.

not

concern

a

possible

instance

of

The Ombudsman considered that the complaint fell outside his
mandate, because it did not concern a Community institution
or body (Article 2(1) of the Statute). Indeed, the CTA has been
set up in the framework of the ACP (African Caribbean and
Pacific States) (cid:151) EC LomØ Convention, which is
an
international agreement, and is governed by the ACP-EC
Committee of Ambassadors (see Article 53 of the Fourth LomØ
Convention). The Ombudsman informed Mr D. accordingly.

Who is entitled to complain?

(Case 218/98/OV)

In April 1998, the (cid:145)Association of persons with nationalised
real property(cid:146), with its seat in Romania, complained to the
Ombudsman.

When do the Court of Justice and the Court of First
Instance act (cid:145)in their judicial role(cid:146)?

regime.

In the complainant’s view,

The complaint concerned a Romanian Law that dealt with
restitution of real estate which had been nationalised under the
Communist
the Law
legalised the nationalisation to a large extent and was therefore
in contravention of the Romanian constitution as well as the
European Convention on Human Rights, which was ratified by
Romania in 1994. The complainant asked the Ombudsman to
persuade the Romanian authorities to modify the contested
legislation, in order to provide for a more extensive restitution
of property.

The Ombudsman informed the complaining association that
the complaint was outside his mandate because its seat was
not within a Member State of the European Union.

As the Council of Europe had already adopted a resolution on
the subject-matter of the complaint, and the complainant was
it did not appear necessary to inform the
aware of
complainant of
the European
Commission of Human Rights.

the possibility to contact

this,

According to Article 138e(1) of the EC Treaty, the European
Ombudsman is empowered to receive complaints concerning
the
instances of maladministration in the
Community institutions and bodies,
the
Court of
Instance acting in their
judicial role.(cid:146)

Justice and the Court of First

(cid:145)with the exception of

activities of

a

L., who

complaint

from Mr

In February 1997 Hartmut Nassauer MEP forwarded to the
Ombudsman
alleged
maladministration by the Registrars of the Court of Justice and
the Court of First Instance in dealing with his requests for
access to the files of proceedings which he had initiated before
the Registrars act
the Courts. Mr L. claimed that
in an
administrative capacity and that
such decisions are not,
therefore, decisions of the Courts acting in their judicial role.
He also claimed that citizens’ access to their files at Court is a
fundamental right, enshrined in national constitutions and the
European Convention of Human Rights and that failure to
respect this right infringes the constitutions of the Member
States
the German
Constitution.

and in particular Article 103 of

Note: In cases where a complaint is made by a non-authorised
complainant the Ombudsman has the possibility to deal with
the matter as an own-initiative inquiry. In this case, however,
no question of an own-initiative inquiry could arise because
the subject matter did not
involve a possible instance of
maladministration in the activities of a Community institution
or body.

(Case 398/98/HL)

An example of a complaint which was not against a
Community institution or body

The question of whether such a complaint involves the Court
of Justice and the Court of First Instance acting in their judicial
role is a question of Community law, on which the highest
authority is the Court of Justice.

the Court of

the
In reply to the Ombudsman’s inquiries in this case,
Presidents of
Justice and the Court of First
Instance stated that the Courts act in their judicial role when
dealing with requests for access to case-files. Consequently, the
Ombudsman should not continue his inquiry into the possible
instances of maladministration in this case. The Ombudsman
therefore closed the case.

In February 1998, Mr D. an employee of the Technical Centre
for Agricultural and Rural Cooperation (CTA) complained to

(Case 126/97/VK)

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2.2.1.

(cid:145)MALADMINISTRATION(cid:146)

a
The Ombudsman’s Annual Report
for 1995 gave
non-exhaustive list of examples of maladministration.
In
response to a call from the European Parliament for a clear
definition of the term, the Ombudsman offered the following
definition in the Annual Report for 1997:

Maladministration occurs when a public body fails to act
accordance with a rule or principle which is binding upon it.

in

In dealing with the Annual Report for 1997 the European
Parliament considered that this definition, together with the
further explanation provided in the Annual Report gives a
clear picture of what lies within the remit of the Ombudsman.
Following Mr Newman’s proposal on behalf of the Committee
on Petitions (1),
resolution welcoming the
definition.

adopted a

it

To apply the above definition, it is necessary to identify the
rules and principles which are binding. A very useful
contribution to making the rules and principles concrete can
be made by a code of good administrative behaviour.

2.2.2. A CODE OF GOOD ADMINISTRATIVE BEHAVIOUR

A code of good administrative behaviour would be very
helpful
for the staff of Community institutions and bodies
when they deal with requests or complaints from citizens.
Furthermore, if the code is easily accessible to the public (for
instance in the form of a decision published in the Official
Journal of the European Communities), it would provide citizens
with information about
their rights and the standards of
administration they may expect.

conduct

in the public service. The

In the last few years there has been a general tendency to set
up codes and checklists of good administrative behaviour both
in the Member States and through international organisations.
The Ombudsman referred for instance to the recommendation
of 23 April 1998 of the Council of the OECD on improving
International
ethical
Ombudsman
useful
published
Administrative Fairness Checklist. In the law of the Member
States, the Ombudsman drew attention to a recent French draft
law on the improvement of
the relations between the
administrations and the public (2), an administrative ethics
checklist established by the Ombudsman of Ireland in 1996,
and some administrative procedure laws (Belgium, Denmark,
Finland, Portugal).

Institute

1993

in

a

In December 1997,

regards Community institutions and bodies,

As
the only
initiative of which the Ombudsman is aware is that of the
European Commission.
the Secretary
General of the Commission sent to the Ombudsman a first
draft of a Code of Conduct for European Commission Officials in
their relations with the public. In January 1998, the Ombudsman
sent his remarks on the contents and the form of this draft
code and provided the Commission with national examples of
codes of good administrative behaviour.

On the basis of Article C of the Treaty on European Union,
European citizens are entitled to expect a consistent approach
to the matter, which presupposes that arbitrary differences
between institutions and bodies as regards the existence and
the public accessibility of such codes should be avoided.

In November 1998, the Ombudsman therefore began an own
initiative inquiry into the existence and the public accessibility,
for the different Community institutions and bodies, of a code
of good administrative behaviour for officials in their relations
with the public. He asked the different Community institutions,
bodies and decentralised agencies to inform him whether they
had already adopted, or would agree to adopt, a code of good
administrative behaviour for their officials in their relations
with the public, which is easily accessible to the citizens.

As to the contents of a code of good administrative behaviour,
the Ombudsman observed that it could include general rules
on both substantive and procedural principles. As regards
the
substantive principles a code could include,
obligation to:

for instance,

(cid:151) apply the law and the established rules and procedures

(principle of lawfulness),

(cid:151) avoid discrimination (principle of equality of treatment),

(cid:151) take measures which are proportional to the aim pursued

(principle of proportionality),

(cid:151) avoid abuse of power,

(cid:151) ensure objectivity and impartiality (including abstention in

cases of personal interest),

(cid:151) respect legitimate expectations (principle of legal certainty),

(cid:151) act fairly,

(1) A4-0258/98 (OJ C 292, 21.9.1998, p. 168).
(2) Projet de loi relatif aux droits des citoyens dans leurs relations avec
les administrations, AssemblØe Nationale, 1997-1998, No 900.

(cid:151) act consistently.

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regards procedural principles, a code could include the

As
obligation to:

2.3. FREEDOM OF MOVEMENT AND THE MANDATE OF THE

OMBUDSMAN

(cid:151) reply to correspondence in the language of the citizen (see
Article 8d of the EC Treaty, as amended by the Treaty of
Amsterdam),

(cid:151) send an acknowledgment of receipt if an immediate reply
is not possible, and indicate the official in charge of the file
(name and telephone number),

(cid:151) transfer a letter/file to the competent service,

existence of border

The Ombudsman has
received an increasing number of
complaints about the obstacles encountered by many citizens
in exercising their right to move freely across the Union’s
internal frontiers. The problems most frequently raised range
from the
the difficulties
encountered in establishment in another Member State and the
exercise there of an economic activity, to problems in the
delivery of
retired and
non-working persons, and the application of discriminatory
practices on the grounds of nationality. These problems appear
to create confusion and disappointment among citizens.

residence permits

students,

controls,

for

(cid:151) respect

the right

to be heard and to make statements

before a decision is taken (the rights of defence),

Some examples of complaints made in 1998 concerning
freedom of movement

(cid:151) reply/take a decision within a reasonable time limit

(including implied rejection decision),

Entry and residence

(cid:151) take into account all relevant considerations and exclude

irrelevant ones,

Mr K. is a German citizen who complained that he did not
obtain enough assistance from the German administration
when he wished to move from Germany to Ireland.

(cid:151) state reasons for
negative decisions,

(individual) decisions, particularly for

(Case 295/98/VK)

(cid:151) notify the decision to the persons concerned,

(cid:151) indicate the possibilities of remedy/appeal

for negative

individual decisions,

(cid:151) maintain adequate records.

A code could also contain some obligations in dealing directly
with the citizens such as duties to:

(cid:151) provide clear and understandable information/give correct

advice,

(cid:151) deal correctly with telephone calls,

(cid:151) act with courtesy,

(cid:151) apologise for errors,

(cid:151) promote public access to the code (by distributing a leaflet

for the citizens).

The own-initiative inquiry is addressed to 19 Community
institutions and bodies, which are due to reply to the
Ombudsman by 28 February 1999.

The complainant states that he is a German citizen living in
France who is unable to obtain a residence permit because the
French administration claims that it has not been proved that
he actually lives in the country.

(Case 420/98/ADB)

Mrs V. R.
lives in Germany and her husband in Italy. She
complains that every time she, or her friends or relatives
intend to visit her husband, the visit has to be reported to the
police.

(Case 512/98/ADB)

Study and employment

Mrs. F. C., a French national, complained of discrimination
against her daughter who was studying in the Netherlands. As
a foreigner, she was not offered the same facilities as Dutch
students, such as free public transport, and had been placed
under a separate social insurance scheme.

(Case 869/98/ADB)

is a French citizen, who qualified as a
The complainant
primary school
teacher in Belgium. After moving back to
France, the complainant was only allowed to work for three
years, in private schools, with a temporary contract that had to
be renewed each year. In order to be authorised to work like

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Official Journal of the European Communities

18.10.1999

any other French teacher, the complainant was required to
pass an examination and become a civil servant, and also
attend a course of one year.

Obstacles to the exercise of the right to free movement of
persons often result from the incorrect implementation and
application of Community law by national, regional and local
administrations.

(Case 5/98/XD)

The complainant is a Dutch dietician who wanted to practice
in France, but was unable to obtain recognition of the relevant
diploma. Both the French Ministry of Employment and the
Ministry of Education claimed not to have power to deal with
the matter.

(Case 121/98/OV)

Mrs S. is a qualified and experienced physiotherapist. She was
offered a job in the United Kingdom provided she obtained the
recognition of her
for
Professions Supplementary to Medicine in the United Kingdom
refused to recognise her diploma, on the grounds that there
are major differences between Spain and the United Kingdom
regarding this particular profession.

Spanish diploma. The Council

(Case 298/98/XD)

Taxation and administrative formalities

In evaluating the problems unveiled by these complaints and
looking for potential solutions,
the Ombudsman has taken
account of work undertaken in recent years by other
Community institutions; in particular the proposals made by
the (cid:145)High-Level Panel on the Free Movement of Persons (1)(cid:146), a
group of experts gathered by the Commission in January 1996
(cid:151) and the report prepared by the European Parliament on
these proposals (2). The Ombudsman’s experience supports the
conclusions akin to those reached by the High-Level Panel and
the Parliament’s Report.

The European Ombudsman cannot open an inquiry into
complaints against national, regional or local administrations
of
the Statute
provides:

since Article 2(1) of

the Member States,

(cid:145)Within the framework of the Treaties ((cid:133)) the Ombudsman shall
help to uncover maladministration in the activities of
the
Community institutions and bodies ((cid:133)). No action by any other
authority or person may be the subject of a complaint to the
Ombudsman(cid:146).

Mr P.
is a Finnish citizen who worked in Sweden. He
complains that his Swedish pension is taxed both in Sweden
and in Finland.

(Case 97/98/BB)

In accordance with this provision, the Ombudsman has had to
declare most of the complaints relating to the free movement
of persons within the Union which he has received to be
outside his mandate.

The complainant moved from Germany to the Netherlands. He
claims that, in order to register a car in the Netherlands, he
had to provide all the relevant papers as well as the licence
plates of the car to the Dutch authorities. He complains that
this process took several weeks during which it was not
possible to use the car.

(Case 291/98/VK)

Mr C. A.
is a Portuguese national who worked in France.
Having been made redundant, he decided to go back to
Portugal and receive his unemployment benefits there. He
complained of great difficulties
in obtaining the relevant
documents in France.

(Case 393/98/ADB)

Mr A., a Spanish citizen, worked in France and in Switzerland.
Having been made redundant in 1996 he decided to return to
Spain with his parents. To obtain social security benefits in
Spain, he was asked to produce a document (E 301) which can
only be delivered to workers who had their last activity in a
Member State of the Union.

(Case 436/98/ADB)

The practice, however, has been to suggest that the complaints
be forwarded to other institutions able to deal with Member
States’ failure to comply with Community law. Alternatively,
itself has been directly transferred to these
the complaint
institutions, provided that
there had been a previous
agreement by the complainant to such a course of action.
Depending on the situation at stake and its most effective
solution, the Ombudsman has passed the case on to other
the
Community institution such as
guardian of the Treaty, or the Committee on Petitions of the
European Parliament; or alternatively to similar institutions in
the Member States, such as national and regional ombudsmen.

the Commission, as

This type of response has not always been entirely satisfactory,
since most often the problems require a speedy and concerted
levels. Whereas
action at both Community and national
Community institutions generally lack the resources and also
the means to tackle case-by-case problems resulting from

(1) Report of the High Level Panel on the free movement of persons,
chaired by Mrs Simone Veil; submitted to the Commission on 18
March 1997 (C4-181/97).

(2) Report of Mrs Schaffner on the report of the High Level Panel on
the free movement of persons, chaired by Mrs Simone Veil;
Committee on Civil Liberties and Internal Affairs; 19.3.1998
(A4-0108/98).

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occasional administrative decisions, recourse to national bodies
is usually limited when difficult Community considerations
arise.

It would be desirable to design new mechanisms to better cope
with these problems whereby both Community and national
bodies could combine their efforts towards a rapid solution of
individual problems. In this respect, the Ombudsman shares
the point of view put forward by the High Level Panel, which
concluded that
free
(cid:145)satisfactory application of
movement requires the involvement of all those concerned (1)(cid:146),
including as the report itself recognises, both the European
Ombudsman and national Ombudsmen.

the right of

3.

4.

5.

the complaint must be made within two years of the date
is based came to the
on which the facts on which it
attention of the complainant (Article 2(4));

the complaint must have been preceded by appropriate
administrative approaches
to the institution or body
concerned (Article 2(4));

in the case of complaints concerning work relationships
between the institutions and bodies and their officials and
servants,
internal
for
administrative requests and complaints must have been
exhausted before lodging the complaint (Article 2(8)).

the possibilities

submission of

A closer cooperation between the European Ombudsman and
similar institutions in the Member States, either at national,
level, should facilitate a better exchange of
regional or local
information on specific problems concerning free circulation
of persons in Europe, and ultimately, a more effective pressure
on the responsible administrative authorities. Such cooperation
the European Commission and the
could also involve
Committee on Petitions of the European Parliament.

The definition of existing rights under Community law (cid:151) in
particular the scope of the right to the free movement of
persons (cid:151) as well as the means available for their protection
and defence appears also necessary. It would be desirable that
individuals can easily know what are the means to protect the
rights vested in them as European citizens, maybe even
through a new Treaty provision.

these
The Ombudsman intends
complaints relating to the free movement of persons in the
Union, and to monitor developments in this area with a view
to making more specific proposals in the future.

to pursue his

review of

2.4. ADMISSIBILITY OF COMPLAINTS

A complaint that is within the mandate of the Ombudsman
must meet
the
Ombudsman can open an inquiry. The criteria as set out by
the Statute of the Ombudsman are that:

admissibility before

criteria of

further

An example of inadmissibility of a complaint because of
Court proceedings

In February 1998, Mr S., a lawyer, wrote to the Ombudsman
concerning legal proceedings begun by a client company PO.
PO had complained to the Commission in March 1997 about
a proposed merger between two other companies. The
Commission refused to open an examination of the merger.
PO brought proceedings in the Court of First
Instance to
challenge the refusal.

Mr S. requested that the Ombudsman:

(i)

intervene in the proceedings before the Court of First
Instance;

(ii) examine whether

the Commission had acted fairly in

refusing to investigate PO’s complaint.

In relation to the first request, Article 1(3) of the Statute of the
Ombudsman provides that (cid:145)The Ombudsman may not intervene in
cases before courts (cid:133)(cid:146).

In relation to the second request, Article 138e of the EC Treaty
provides for the Ombudsman to conduct inquiries: (cid:145)except where
the alleged facts are or have been the subject of legal proceedings.(cid:146)

The Ombudsman therefore informed Mr S. that he could not
intervene in the proceedings before the Court of First Instance,
nor inquire into the question of whether the Commission may
have acted unfairly in dealing with PO’s complaint.

1.

the author and the object of
identified (Article 2(3) of the Statute);

the complaint must be

(Case 223/98/IJH)

2.

the Ombudsman may not intervene in cases before courts
or question the soundness of a court’s ruling (Article 1(3));

(1) Report of the High Level Panel on the free movement of persons,

pages 80 to 83.

The Ombudsman can deal with complaints that are within his
mandate and which meet the criteria of admissibility. Article
138e of the EC Treaty provides for him to (cid:145)conduct inquiries
for which he finds grounds(cid:146). In some cases, there may not be

2.5. GROUNDS FOR INQUIRIES

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sufficient grounds for the Ombudsman to begin an inquiry,
even though the complaint is technically admissible. Where a
complaint has already been dealt with as a petition by the
Committee on Petitions of
the
Ombudsman normally considers that there are no grounds for
him to open an inquiry, unless new evidence is presented.

the European Parliament

Most of the complaints that led to an inquiry were against the
European Commission (75 %). As the Commission is the main
Community organ that makes decisions having a direct impact
on citizens, it is normal that it should be the principal object
of citizens’ complaints. There were 27 complaints against the
European Parliament and seven complaints against the Council
of the European Union.

An example of a complaint that provided no grounds for
an inquiry

In February 1998 Mrs B., an official of
the European
Commission, complained to the Ombudsman because the
Commission had not started an infringement procedure against
France, further to her complaint in which she alleged that the
French social security authorities had refused to reimburse the
costs of three months of convalescence that her father had
spent in Belgium. According to the complainant this refusal
was contrary to the provisions of Regulation (EEC) No
1408/71.

by

appeared

from the

documents

transmitted

the
It
complainant that the Commission had decided to suspend the
investigation of the complaint of Mrs B., given that it was
waiting for two judgments of
Justice (Cases
C-120/95 and C-160/96), in which the question of the prior
authorisation foreseen by Article 22 of Regulation (EEC) No
1408/71, which conditioned also the issue of the complaint by
Mrs B., had to be resolved.

the Court of

that

It appeared from the complaint
the Commission had
started to examine the complaint, had asked for information
from the French authorities and had informed the complainant
in a detailed manner about the legal questions raised by her
complaint. The Commission had decided to suspend its
investigations until
judgments.
Therefore,
there were no
grounds for him to inquire into the complaint and Mrs B. was
informed accordingly.

the Ombudsman decided that

the Court had given its

(Case 283/98/OV)

2.6. ANALYSIS OF THE COMPLAINTS

Of the 3 693 complaints registered from the beginning of the
activity of the Ombudsman, 15 % originated from France, 13 %
from Germany, 14 % from Spain, 11 % from the United
Kingdom, and 12 % from Italy. A full analysis of
the
geographical origin of complaints is provided in Annex A,
Statistics.

During 1998, the process of examining complaints to see if
they are within the mandate, meet the criteria of admissibility
and provide grounds to open an inquiry was completed in
93 % of the cases. 31 % of the complaints examined appeared
to be within the mandate of the Ombudsman. Of these, 212
met the criteria of admissibility, but 42 did not appear to
provide grounds for an inquiry. Inquiries were therefore begun
in 170 cases.

(69

cases),

discrimination

The main types of maladministration alleged were lack of
transparency
cases),
unsatisfactory procedures or failure to respect rights of defence
(25 cases), unfairness or abuse of power (29 cases), avoidable
delay (17 cases) negligence (38 cases),
failure to ensure
is failure by the European
fulfilment of obligations,
Commission to carry out its role as (cid:145)Guardian of the Treaties(cid:146)
vis-(cid:224)-vis the Member States (11 cases) and legal error (seven
cases).

that

(21

2.7. ADVICE TO CONTACT OTHER AGENCIES AND

TRANSFERS

If a complaint is outside the mandate or inadmissible,
the
Ombudsman always tries to give advice to the complainant
as to another agency which could deal with the complaint.
If possible the Ombudsman transfers a complaint directly
to another competent agency with the consent of
the
complainant, provided that there appear to be grounds for the
complaint.

In 259 cases

During 1998, advice was given in 600 cases, most of which
involved issues of Community law.
the
complainant was advised to take the complaint to a national
or regional Ombudsmen or similar body. In addition, with the
consent of the complainant seven complaints were transferred
directly to a national Ombudsman. 80 complainants were
advised to petition the European Parliament and, additionally,
10 complaints were transferred to the European Parliament,
with the consent of
to be dealt with as
the complainant,
petitions. In 154 cases the advice was to contact the European
Commission. This figure includes some cases in which a
complaint against the Commission was declared inadmissible
because appropriate administrative approaches had not been
made to the Commission. In 107 cases the complainant was
advised to contact other agencies.

2.8. DECISIONS FOLLOWING AN INQUIRY BY THE

OMBUDSMAN

When the Ombudsman decides to start an inquiry into a
complaint, the first step is to send the complaint and any
annexes to the Community institution or body concerned for
an opinion. When the opinion is received,
it is sent to the
complainant for observations. As explained in Section 2.10,
information
take
the Ombudsman cannot

into account

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supplied by one of the parties unless the other party has the
opportunity to comment on it.

In some cases, the institution or body itself takes steps to settle
the case to the satisfaction of the complainant. If the opinion
and observations show this to be so, the case is then closed as
(cid:145)settled by
the
complainant decides to drop the complaint and the file is
closed for this reason.

In some other

institution(cid:146).

cases,

the

the complaint

If
is neither settled by the institution nor
dropped by the complainant, the Ombudsman continues his
inquiries.
of
maladministration, the complainant and the institution or body
are informed accordingly and the case is closed.

inquiries

instance

reveal

the

no

If

an

reveal

instance

the Ombudsman’s

If
of
inquiries
maladministration, if possible he seeks a friendly solution to
eliminate it and satisfy the complainant. At a meeting held in
Strasbourg on 21 October 1997, the Ombudsman and the
Secretary-General of the Commission, Mr Carlo Trojan agreed
that an informal meeting could,
in some cases, provide an
appropriate way to pursue a friendly solution in cases
involving the Commission. One such meeting took place in
1998, leading to a friendly solution.

If a friendly solution is not possible, or if the search for a
friendly solution is unsuccessful, the Ombudsman either closes
the file with a critical remark to the institution or body
concerned, or makes a formal
finding of maladministration
with draft recommendations.

A critical remark is considered appropriate for cases where the
instance of maladministration appears to have no general
implications and no follow-up action by the Ombudsman
seems necessary.

(that

cases

serious

necessary

is, more

In cases where follow-up action by the Ombudsman does
appear
of
maladministration, or cases that have general implications), the
Ombudsman makes a decision with draft recommendations to
the institution or body concerned. In accordance with Article
3(6) of the Statute of the Ombudsman, the institution or body
send a detailed opinion within three months. The
must
of
detailed
the
could
the measures
Ombudsman’s decision and a description of
taken to implement the recommendations.

acceptance

opinion

consist

of

the Ombudsman to send a report

a Community institution or body fails

to respond
If
satisfactorily to a draft recommendation, Article 3(7) provides
for
to the European
Parliament and to the institution or body concerned. The
report may contain recommendations. The possibility for the
European Ombudsman to present such a Special Report to the

Parliament is of inestimable value for his work. Some national
Ombudsmen have had a long struggle to obtain a comparable
possibility. Special Reports should not therefore be presented
too frequently, but only in relation to important matters when
the Parliament can take action to assist the Ombudsman in
accordance with the Statute of the Ombudsman.

The Ombudsman’s first Special Report, made on 15 December
1997, concerned the Ombudsman’s own initiative inquiry into
public access to documents. The Report was discussed by the
Parliament at the plenary session in July 1998 on the basis of
the report on it by the Committee on Petitions (rapporteur
Astrid Thors) (1).

In 1998 the Ombudsman began 171 inquiries, 170 in relation
to complaints and one own-initiative.

51 cases were settled by the institution or body itself.
(As
explained in section 2.9, some cases have been classified in
this category in 1998 which were not so classified in previous
years).
In 96 cases, the Ombudsman’s inquiries revealed no
instance of maladministration.

A critical remark was addressed to the institution in 29 cases.
A friendly solution was reached in four cases. One draft
recommendation to the institutions and bodies concerned was
made. (For further details, see Appendix A, Statistics).

2.9. CASES INVOLVING FAILURE TO REPLY TO

CORRESPONDENCE

A common type of complaint concerns failure to reply to
correspondence. Soon after the beginning of the Ombudsman’s
activity,
from the
Ombudsman’s office to the responsible service often results in
an immediate reply to the citizen.
there is
normally no point pursuing the inquiry further.

that a telephone call

it became clear

In such cases,

The former practice of the Ombudsman in cases in which his
intervention succeeded in obtaining a reply to unanswered
correspondence was to inform the complainant that there no
longer appeared to be grounds to conduct an inquiry into the
complaint under Article 138e of the EC Treaty (see section
2.5). For statistical purposes, such cases were included in the
category (cid:145)no grounds for inquiry(cid:146) in both the 1996 and 1997
Annual Reports. In March 1998, this practice was reviewed,
following a query from Mr Edward Newman (rapporteur for the
Committee on Petitions’ report on the 1997 Annual Report)
about the cases classified as (cid:145)no grounds for inquiry(cid:146). It was
in future, such cases should be classified as
concluded that,
(cid:145)settled by the institution(cid:146). There were 32 decisions of this kind
in 1998.

(1) A4-0265/98 (OJ C 292, 21.9.1998, p. 170).

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Complaints about unanswered correspondence: examples
of cases settled by the institution

questions that arise and how they are dealt with under the
Treaty and the Statute of the Ombudsman.

information about

On 3 March 1998, Mr B. complained to the Ombudsman that
the Commission had failed to reply to his letter of 2 December
1996 in which he
the
asked for
introduction of
the euro. The Ombudsman contacted the
responsible service of the Commission to request that they
reply to the complainant and send him the information which
he had requested. Further to this intervention, the Commission
replied to the complainant on 18 March 1998. Since this step
appeared adequate to settle the matter, the Ombudsman closed
the case.

(Case 269/98/ADB)

In June 1998, Ms V. complained on behalf of the County
Administrative Court of Uusimaa that the Office for Official
Publications of the European Communities (OPOCE) had failed
to reply to two letters. The Court had written to OPOCE in
Finnish on 10 June 1996 to inquire why it had not received
the 1994 Special Edition of the Official Journal of the European
Communities. A reminder letter was sent on 14 April 1997 in
English. No reply was received to either letter.

The Ombudsman contacted OPOCE by telephone to request
that a reply be sent to the County Administrative Court of
Uusimaa. Further to this intervention, OPOCE contacted the
Court and forwarded to it the missing volumes of the Official
Journal of
the European Communities in Finnish and Swedish.
Since this step appeared adequate to settle the matter, the
Ombudsman closed the case.

(Case 615/98/BB)

not

every

about

complaint

unanswered
Naturally
correspondence can be resolved satisfactorily by telephone
enquiries. If the responsible service of the institution concerned
cannot identify the correspondence, or if no-one is willing to
the
for preparing
responsibility
accept
Ombudsman writes
institution
to the President of
concerned to request an opinion on the complaint. The
Ombudsman would also follow this course of action if there
were reason to suspect that the original failure to reply was
anything other than an isolated administrative oversight, or if
the substance of the complaint is an allegation of unjustified
delay in replying to correspondence.

rapid reply,

the

a

2.10. SOME ISSUES CONCERNING ACCESS TO DOCUMENTS

During the course of the year, the Ombudsman considered a
number of different questions concerning access to documents.
Since it appears that the relevant rules and principles are not
always fully understood by the Community institutions and
the different
bodies,

the Report explains

section of

this

2.10.1. COMPLAINTS ABOUT REFUSAL OF ACCESS TO

DOCUMENTS

Most of the Community institutions and bodies have rules on
public access to the documents that they hold. In 1993, the
Commission and the Council adopted a joint Code of Conduct
about access to their documents. The Code was implemented
two institutions (1).
through separate Decisions of
Following an own-initiative inquiry by the Ombudsman in
1996, other Community institutions and bodies have also
adopted rules on public access, most of which are similar to
those of the Council and Commission.

the

If a request for access to documents is refused, the Council and
Commission rules allow the citizen to make a confirmatory
application. The citizen whose confirmatory application is
rejected has
to complain to the
Ombudsman, or to bring proceedings in the Court of First
Instance.

the possibility either

In the case of a complaint to the Ombudsman, the issue is
whether the refusal of access constitutes maladministration.
the
The question for any inquiry,
institution concerned has properly applied its rules on public
access, and whether it has acted within the limits of its legal
authority in exercising any discretionary power.

is whether

therefore,

During 1998, the question arose of what should happen if the
Ombudsman considers that an institution has wrongly applied
its own rules. The appropriate course of action is for the
time
this
institution concerned to reconsider
applying the rules correctly. Of course,
the Ombudsman
cannot order the institution to do this, nor can he annul the
relevant decision. However, by explaining his views in a
critical remark, he gives the institution itself the possibility to
take the necessary action.

the matter,

2.10.2. FAIR PROCEDURE IN THE OMBUDSMAN’S INQUIRIES

Another question which arose during 1998 concerns the
documents which the institution or body concerned sends to
the Ombudsman as part of its opinion on the complaint. In
some cases the institution concerned has forwarded documents
to the Ombudsman containing information which could be

(1) Code of Conduct (OJ L 340, 31.12.1993, p. 41); Council Decision
93/731/EC of 20 December 1993 on public access to Council
documents (OJ L 340, 31.12.1993, p. 43); Commission Decision
94/90/ECSC, EC, Euratom of 8 February 1994 on public access to
Commission documents (OJ L 46, 18.2.1994, p. 58).

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relevant to the Ombudsman’s decision on the case, but has
asked the Ombudsman to keep the documents confidential
vis-(cid:224)-vis the complainant.

necessary to do so as part of an inquiry, including documents
to which citizens cannot have access.

In these cases the Ombudsman has explained to the institution
concerned that it is a basic principle of fair procedure that the
Ombudsman’s decision on a complaint cannot
take into
account information contained in documents provided by one
party, unless the other party has had the chance to respond.
The Ombudsman’s decision on a complaint cannot, therefore,
take
information contained in documents
supplied by the institution or body concerned, unless the
complainant has had a chance to make observations on the
documents.

into account

2.10.3. THE OMBUDSMAN’S POWER TO INSPECT FILES

the
A third issue which arose during 1998 concerns
Ombudsman’s power to inspect
files held by Community
institutions and bodies. The relevant part of Article 3(2) of the
Statute of the Ombudsman is as follows:

(cid:145)The Community institutions and bodies shall be obliged to
supply the Ombudsman with any information he has requested of
them and give him access to the files concerned. They may refuse
only on duly substantiated grounds of secrecy.

They shall give access to documents originating in a Member
State and classed as secret by law or regulation only where that
Member State has given its prior agreement.

is of

since it

importance,

fundamental

This power
is a
guarantee for the citizen that the Ombudsman can make an
independent check on the accuracy and completeness of the
answers given by the administration. For as long as Article
3(2)
to
access
documents,
the restrictions
should be interpreted narrowly and that the burden of proof
should be on the institution or body which seeks to deny
access.

the Ombudsman’s

is important

to restrict

continues

therefore,

that

it

The question of whether
restrictions on the European
Ombudsman’s access to files are appropriate in a European
Union which is committed to democracy, transparency and to
efficient and honest administration could be considered by the
three
and
Commission) involved in the procedure for amendment of the
Statute of the Ombudsman.

institutions

Parliament,

(European

Council

of

power

inspection

the Ombudsman’s

the Ombudsman makes clear

Naturally,
is
complemented by a duty of confidentiality. Article 4 of the
Statute of
that when the
inspect documents held by the
Ombudsman or his
same duty of
administration,
confidentiality as
Inspection of
documents by the Ombudsman does not therefore result in
release of the documents to the complainant, or to anyone
else.

they are bound by the

the administration itself.

staff

They shall give access
Member State
concerned.(cid:146)

to other documents originating in a
the Member State

informed

after having

The normal principle in Member States with a national
Ombudsman system is that the Ombudsman can inspect any
it
document held by the administration,

if he considers

It is therefore a mistake to suggest that the rules on public
access to documents which Community institutions and bodies
have adopted can be used to restrict the Ombudsman’s access
to documents. This suggestion appears to be based on a
fundamental misunderstanding
the
Ombudsman’s power of inspection, which is used to verify the
truth and completeness of the administration’s answers to a
complaint and which does not result in public access to the
documents concerned.

nature

the

of

of

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3. DECISIONS FOLLOWING AN INQUIRY

3.1. CASES WHERE NO MALADMINISTRATION WAS FOUND

The inquiry

3.1.1. THE EUROPEAN PARLIAMENT

RECOVERY OF MEDICAL EXPENSES

Decision
European Parliament

on

complaint 1044/20.11.96/KP/JMA against

The Parliament’s opinion

The complaint was forwarded to the European Parliament. The
Parliament’s opinion stated that the normal procedure in a case
of this type would be appeal to the Court of First Instance.

the

On the substance of the complaint the opinion included, in
summary, the following points:

The complaint

In November 1996 X. complained to the Ombudsman
to
concerning the
reimburse the cost of a cure for delicate children for her
daughter.

the European Parliament

refusal of

The European Parliament rejected her request on the grounds
that
the medical centre concerned (cid:145)was not considered a
competent medical or paramedical institute(cid:146). A second request
was rejected on the basis that the treatment in question did
not seem to correspond to the requirements of a cure for
delicate children.

(i)

(ii)

in reaching its decision, the appointing authority took
due account of the opinion given by the Management
Committee of the Health Insurance Scheme;

in the selected centre was usually given to
treatment
children under 16 years of age, whereas the complainant’s
daughter was already 17 when she started her treatment;

(iii) X.’s request

for reimbursement

for individual medical
expenses incurred during the cure was not in conformity
with the relevant rules, since it was too general and
included
reimbursed.
could
Furthermore, the relevant rules provide that travel costs
cannot be reimbursed.

costs which

not

be

In December 1994 the complainant appealed unsuccessfully
to the Secretary-General of
the Parliament. The Secretary-
General’s response indicated that the complainant had a right
to recover specific medical expenses incurred during the cure.

In her observations, X. stated that she had decided not to
appeal to the Court of First Instance.

The complainant’s observations

In the complaint to the Ombudsman, X. claimed that:

(i)

followed proper
the European Parliament had not
procedures, since the Management Committee of
the
Health Insurance Scheme had not given its advice on the
matter;

(ii)

the treatment should have been considered as the most
appropriate for her daughter;

(iii) her

for

request

specific medical
reimbursement of
expenses had been rejected on the grounds that it had not
stipulated the price and the date of every medical visit
and the name and the quality of doctors.

She claimed that the bill from the medical centre was correctly
filled out and stated that the price of the treatment had been
calculated on a package basis, from which medical costs could
not be
the
Parliament’s refusal to reimburse her showed lack of flexibility
and good will.

considered

separately

identified.

that

She

X. also commented on the procedure followed by the
Ombudsman in dealing with complaints. She considered that it
was not appropriate to begin the procedure by forwarding the
complaint to the institution concerned for an opinion.

The Decision

1.

Powers of the European Ombudsman to make inquiries
into the case

The complainant asked the Ombudsman to take the necessary
steps to compel
the
the European Parliament
expenses for the cure, including travel costs.

to pay all

1.1. The European Parliament

the normal
procedure in a case of this type would be to make an
application to the Court of First Instance.

stated that

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Justice

1.2. Within the constitutional framework of the Treaties, the
authority on the
Court of
law.
interpretation and application of Community
However,
to help
uncover instances of maladministration in the activities
of Community institutions and bodies.

the Ombudsman makes

the highest

inquiries

is

1.3. To be admissible, a complaint to the Ombudsman must
have been preceded by the appropriate administrative
approaches to the institution concerned. Similarly, if the
complaint concerns work relationships between the
Community institutions and bodies and their officials
and other servants, no complaint can be made to the
the
Ombudsman
and
administrative
submission of
complaints,
in particular the procedures referred to in
Article 90(1) and (2) of the Staff Regulations, have been
exhausted by the person concerned (1).

for
requests

possibilities

internal

unless

the

all

specific medical expenses. However,
the Parliament
rejected the bill submitted by the complainant on the
grounds that it did not identify these costs separately,
but referred only to a general sum corresponding to the
medical centre’s daily charges.

4.2. The applicable Rules provide only for reimbursement of
medical
acted
properly in requiring separate identification of medical
expenses as a condition of reimbursement.

expenses. The

Parliament

therefore

4.3. Annex

I, Title XI of

the
reimbursement of medical expenses do not provide for
reimbursement of travel costs.

the Rules

governing

Conclusion

1.4. Once these internal procedures have been exhausted,
Community officials or other
the
possibility either to appeal to the Court of First Instance,
or alternatively, to complain to the Ombudsman.

servants have

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the European Parliament. The Ombudsman therefore closed
the case.

inquiries

2.

The Ombudsman’s procedures

2.1.

In her observations, the complainant considered that it
was not appropriate for the Ombudsman to begin an
inquiry by forwarding the complaint to the institution
concerned for an opinion.

the Ombudsman shall

2.2. Article 3(1) of the Statute of the Ombudsman, requires
that
inform the institution or
body concerned of his inquiries into any suspected
instance of maladministration, so that they can submit
any useful comment to him.

3. Medical considerations on the type of cure to be

followed

3.1. Annex

the Rules

I, Title XI of

the
reimbursement of medical expenses provides that cures
at a health resort must be recognised as
strictly
necessary by the medical officer responsible for settling
claims.

governing

3.2.

In the present case the responsible medical officer,
having reviewed the case, concluded that the cure did
not meet the necessary medical requirements. There was
no evidence that in reaching this decision, the medical
officer had not properly followed the relevant criteria.

4.

Reimbursement of expenses

4.1. Although the Parliament refused to reimburse the whole
cost of the cure for delicate children, it agreed to cover

(1) Article 2(8), Statute of the European Ombudsman.

RULES FOR JOINING EUROPEAN PARLIAMENT PENSION SCHEME

Decision on joined complaints 74/97/PD and 85/97/PD against the
European Parliament

The complaints

In January 1997, Mr M., MEP, complained to the Ombudsman
against the European Parliament, alleging maladministration in
relation to the additional pension scheme for Members of
Parliament. Also in January 1997 Mr B., a former MEP,
informed the Ombudsman that he would like to associate
himself with Mr M.’s complaint.

The background to the complaints was that, by decision of 12
June 1990, the Bureau of the Parliament set up an additional
(voluntary) pension scheme for Members. The rules governing
the pension scheme constitute Annex IX (formerly Annex X)
to the Rules governing the payment of
and
allowances to Members. In the autumn of 1992, a time limit
of six months was laid down for joining the pension scheme.
Neither Mr M. nor Mr B. joined the scheme at that time; they
claimed that they were not informed about the introduction of
the time limit.

expenses

Having been re-elected to the European Parliament in 1994,
Mr M. was allowed to join for the period 1994 to 1999, but
not for the previous period. As Mr B. was no longer an MEP,
he could not apply to join for the period 1994 to 1999, and
he was not allowed to join for the previous period.

Mr M. contacted different instances within the Parliament with
a view to being allowed to join the scheme retroactively, for
the period before 1994. He argued that he had not been

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Official Journal of the European Communities

18.10.1999

informed about the time limit introduced in 1992 and that
in an unfair and
Parliament had applied the time limit
discriminatory way. On 24 July 1995, the Chairman of the
Pension Fund set up under the scheme, who was also Member
of the College of Quaestors of the Parliament, replied. The
letter drew Mr M’s attention to the cut-off date for joining the
scheme, and informed him that the possibility of backdated
contributions had been considered.
It had been concluded,
however, that such backdating was neither practical nor legal.
The letter added:

(cid:145)May I also correct an error you have made concerning the
College of Quaestors’ discussion on 24 April concerning Mr L.
As you will see from the enclosed extract of the minutes of that
meeting that matter concerned the French and Italian pension
schemes administered by the European Parliament on behalf of
the French and Italian Governments. Thus it refers to Annex III
of the Rules on Members’ Expenses and Allowances rather than
Annex X (now Annex IX) which actually contains the rules of
MEPs’ additional voluntary pension scheme. In addition to this,
the request by Mr L. was to receive a pension from, rather than
join, that particular pension scheme.(cid:146)

The abovementioned extract of the minutes of the meeting of
the College of Quaestors read:

(cid:145)(cid:133) under the rules governing the pensions for Members of the
French National Assembly, which applied by analogy to French
Members of the European Parliament, applications to receive a
pension must be made in writing within six months of the date
on which a Member or former Member becomes eligible. A
former French Member, who was unaware of this provision, had
made his application to the European Parliament seven months
after becoming eligible. After a brief discussion, the College:

authorised an exception to the current Rules in favour of Mr L. in
order to enable him to receive the pension notwithstanding his
failure to apply within the six-month time limit;

instructed the Administration to submit a draft amendment with
the aim of clarifying the time limits applicable to Annex III to
the Rules on Members’ Expenses and Allowances.(cid:146)

The inquiry

The European Parliament’s opinion

The complaints were forwarded to the European Parliament. In
its opinion, the Parliament stated that it had examined the
complaints on the basis of an opinion from its Legal Service,
and adopted a decision which rejected the complainants’
allegations. It enclosed a copy of the opinion from its Legal
Service.

the complainants’ claim not

In substance, the opinion from the Legal Service concluded
to have been properly
that
informed of the changes was unfounded. Mr M. had been
given written notice at the Parliament and his home address.
In addition, the minutes of the decisions by the Bureau were
circulated to all MEPs who, moreover, again had six months to
join the pension scheme following their re-election. As for Mr
B., the Legal Service had not been given any evidence to prove
that he had not been aware of the time limit for joining the
scheme. The Legal Service also did not have any evidence that
Mr B. asked to join the scheme prior to the contested decision
by the College of Quaestors or the modifications of
the
regulations by the Bureau.

the Legal Service considered that

As for the decision of 28 October to fix a time limit of six
months,
the College was
bound to respect a general rule set up by itself. To do
treatment.
otherwise would infringe the principle of equal
Accordingly, membership was refused to all MEPs who applied
after 15 December 1992, with one exception. That exception,
however, was specific. It had been based on an agreement of
the College of Quaestors made before the question arose of
limiting membership of the pension scheme in the middle of a
parliamentary term of office.
therefore, be
applied, in the present case, as a general exception to the rule.

It could not,

the opinion of

Finally,
forward the
following additional three points as a basis for their conclusion
that the contested decision was not arbitrary:

the Legal Service put

In their complaints to the Ombudsman,
alleged in substance that:

the complainants

(i)

the time limit for joining the pension scheme was not
properly advertised;

1.

2.

(ii)

it was unfair
complainants to join the scheme with retroactive effect.

and discriminatory not

to allow the

to ensure a healthy financial management and restore a financial
balance in the pension fund which according to a report by
Coopers and Lybrand of 4 August 1992 was deficient at that
moment;

reliable actuarial
to allow the accountants
calculations necessary within the
financial
management, and to allow the budgetary authorities to make
more detailed budgetary forecasts;

to carry out

framework

of

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Official Journal of the European Communities

C 300/23

3.

not to discriminate against the members who had joined the
its very beginning and whose financial situation
scheme at
would in fact be less favourable than the (cid:145)new members(cid:146) who
would be able to make back payments.

1.3.

for

As
the Community institutions’ administrative
frequent use is made of
practices,
general communications to make possible rights known
to servants for which they may have to apply (3).

it appears

that

The complainants’ observations

In their observations
complaints.

the

complainants maintained their

1.4. On this basis, it must be concluded that the question of
information to MEPs is a
proper communication of
lies within the Parliament’s powers of
question that
In exercising these powers, the
internal organisation.
Parliament
the
Community Courts, act in conformity with the interests
of good administration (4). The question is thus whether
Parliament acted accordingly.

shall, according to the case-law of

The Decision

1.

The allegation that the deadline for joining the
pension scheme was not properly advertised

1.1.

1.2.

It appears that there are no regulatory rules governing
the question of what should be considered to be proper
advertisement
the European
Parliament’s Rules of Procedure do not contain any
relevant rules.

In particular,

to MEPs.

In relation to Article 173 of the Treaty and Articles 90
and 91 of the Staff Regulations, the Community Courts
have ruled that the notification of a measure normally
occurs when the measure is communicated to the
addressee and he is able to take knowledge of it (1). The
Courts have also ruled that the burden of proof of due
notification lies with the administration. However, this
case-law does not appear to be transposable to this
individual acts which
case. The case-law concerns
adversely
exact
definition of the moment of notification is of utmost
importance for the calculation of the time limit within
which judicial proceedings can be brought. This case
concerns
information
concerning an offer, of which the addressee can choose
to make use or not. In case the addressee applies and
his application is refused, it is that refusal to which the
time limit for bringing judicial proceedings applies (2).

addressee, where

communication

general

affect

the

the

of

(1) See among others, judgment of 9 June 1994 in Case T-94/92, X v
Commission, [1994] ECR for Staff law II-481,
judgment of 20
March 1991 in Case T-1/90, Casariego v Commission, [1991] ECR
II-143,
judgment of 13 July 1989 in Case 58/88, Olbrechts v
Commission, [1989] ECR 2643 and judgment of 11 May 1989 in
Joined Cases 193/87 and 194/87, Maurissen and Union Syndicale v
Court of Auditors, [1989] ECR 1045.

(2) It is established case-law of the Community Courts that individual
measures which affect the financial situation of individual Members
may be subject to legal review,
judgment of 23 March 1993 in
Case C-314/91, Weber v Parliament, [1993] ECR I-1093.

in this case, Parliament sent out a
It appeared that
communication to the Members concerning the time
limit introduced in the pension scheme through the
internal distribution system of Parliament. As
a
supplementary way of ensuring the communication to
MEPs, the Parliament also sent it by ordinary mail to
each MEP’s home address. Thus, the individual Member
had at least two occasions to get knowledge of the time
limit introduced. This did not appear to constitute an
instance of maladministration.

2.

Unfair and discriminatory treatment

2.1.

As for the question whether the refusal to admit the
complainants to the scheme with retroactive effect was
unfair and discriminatory, it appeared that this question
covered two issues. The first issue is whether it was
unfair that the Regulation in general did not provide
for joining with retroactive effect. The second issue is
whether the time limit for joining the pension scheme
in the complainants’ case should have been waived. In
this context, it seemed to be common ground between
the complainants and Parliament that waiving the time
limit in their case would entail joining with retroactive
effect. Thus, it was clear that if the first question was
answered to the effect that there should be a general
possibility for joining with retroactive effect, the second
question was made redundant.

2.2.

As concerned the first question, it was common ground
the
between the complainants and Parliament

that

(3) See for instance, the Commission’s comments to the Ombudsman
on joined complaints 669/17.6.96/ND/L/VK, 670/27.6.96/KM/L/VK
and 679/1.7.96/CS/L/VK, as reported in the Ombudsman’s Annual
Report for 1997, p. 118, and the Commission’s pleadings in Case
159/86, Canters v Commission; judgment of 22 September 1988,
ECR 4859.

(4) See judgment of 30 April 1996 in Case C-58/94, Netherlands,
supported by the

supported by the Parliament, v Council,
Commission and France, [1996] ECR I-2169, at paragraph 37.

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Official Journal of the European Communities

18.10.1999

2.9.

Regulation did not contain any provision to the effect
the scheme could be joined retroactively. The
that
question was thus whether it was fair that Parliament
had not introduced such a provision. It appeared that
reasons of sound
Parliament had not done so for
it
financial management of the scheme. Furthermore,
shall be noticed that it was within Parliament’s powers
not to set up a scheme at all. Thus, the Parliament must
also be entitled to lay down limitations on the scheme
for the said reasons.

one month after

it shall be noticed that

Secondly, it was put forward that Parliament under the
retirement pension scheme (cid:151) the scheme in Annex III
(cid:151) had waived the time limit in one case, i.e. the case
mentioned in the letter of 24 July 1995 quoted above.
the demand
In this regard,
the
concerned was presented
expiration of
it was
the time limit concerned,
presented under another scheme in a different financial
situation and that the demand concerned entitlement to
a pension to which the Member concerned had already
from the
contributed.
amendment to the rules, for which the administration
was requested to submit a proposal
in the quoted
minutes of the meeting of the College of Questors, that
demands presented outside
limit have no
retroactive effect. The situation thus appeared to be
different from the one in this case.

Furthermore,

appeared

time

that

it

2.10. Consequently, the principle of equal treatment did not
appear to have been violated. However, the question
whether the principle of equal
treatment had been
violated is a question of law and therefore, it shall be
recalled that the Court of Justice is the highest authority
on questions of Community law.

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Parliament. The Ombudsman therefore closed
the case.

3.1.2. THE COUNCIL OF THE EUROPEAN UNION

INSPECTION TO CHECK REASONS FOR REFUSAL OF ACCESS TO
DOCUMENTS

Decision on complaint 1087/10.12.96/Statewatch/UK/IJH against
the Council

The complaint

The complaint concerns four requests for documents which
the complainant addressed to the Council in July and August
1996. His applications were made under the Council Decision
on public access to Council documents (1) (hereafter (cid:145)Decision
93/731/EC(cid:146)).

On 30 July 1996, he requested copies of 71 reports considered
at meetings of the (cid:145)K4(cid:146) Committee held in September, October
and November 1994. On 31 July 1996 he requested six
documents dating from 1992 and 1993. On 13 August 1996
he sent two letters to the Council. The first requested a copy
of a single report produced in 1992. The second requested
copies of 26 reports considered at the JHA Council held in
Luxembourg on 4 June 1996, 23 of which had been produced
in 1996 and three of which bore earlier dates.

(1) Council Decision 93/731/EC (OJ L 340, 31.12.1993, p. 43).

Therefore, the Ombudsman found that the fact that the
Parliament had not provided for a general possibility
for joining the scheme with retroactive effect did not
constitute an instance of maladministration.

As concerned the question whether the time limit for
joining the scheme in the complainants’ case should
have been waived, the examination of this question fell
into various parts. Firstly it had to be examined
whether the refusal to waive the time limit was unfair
and subsequently whether it was discriminatory.

As for the fairness, it shall firstly be observed that the
Regulation governing the pension scheme does not
contain any provision allowing for waiving the time
limit on grounds of equity. The relevant provision of
the Regulation simply provides that Members shall have
a (cid:145)maximum period of six months following their
election or re-election(cid:146) for joining the scheme.

In the absence of an explicit provision allowing for
waiving the time limit, the question was whether under
Community law there exists a general principle to the
effect that a time limit shall be waived on grounds of
equity. There appears to be no such general principle.

Against this background and taking into account the
reasons of sound financial management indicated by
the Parliament, it could not be considered unfair that
the time limit was applied strictly to the complainants.

As for the allegation about discrimination, it shall be
recalled that the principle of equal treatment requires
that identical situations are treated identically and that
different situations are not treated identically.

It was put forward that another MEP was allowed to
join the scheme in spite of being outside the time limit.
It appeared from the Parliament’s opinion that
this
Member, prior to the introduction of the time limit,
received assurances that she could join the scheme.
Thus, her situation was not identical to the one in this
case.

2.3.

2.4.

2.5.

2.6.

2.7.

2.8.

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Official Journal of the European Communities

C 300/25

On 26 September 1996,
the Council’s General Secretariat
replied to the complainant. The reply stated that his requests
(cid:145)in this regard are repeat applications which equally relate to a very
large number of documents(cid:146) and that the General Secretariat had
found a
solution under Article 3(2) of Decision
93/731/EEC by considering only the documents produced in
1996 (i.e. 23 of the 26 documents requested in the second
letter dated 13 August 1996). The General Secretariat provided
the complainant with 16 of the 23 documents, but denied
access to the seven others.

fair

On 10 October 1996, the complainant made a confirmatory
application for all
the documents to which he had been
refused access. On 20 November 1996, the Presidency of the
Council replied upholding the original decision to apply a (cid:145)fair
solution(cid:146) and therefore considering only the seven documents
produced in 1996.

In relation to these seven documents, the Council stated that it
had carefully balanced the complainant’s interest in seeking
in keeping its
access against
deliberations
interest
latter
outweighed the former. It gave further details as follows:

the interest of
and
confidential

the Council
the

that

(cid:145)Documents 7574/96, 6982/2/96 and 7753/96 contain
detailed national positions on a Convention on external frontiers,
on a recommendation on illegal employment of
third-country
nationals and on a Convention of extradition, respectively. These
issues are still under discussion or have been adopted only very
recently.

Documents 7717/1/96 and 7718/1/96 contain
detailed
national positions on the budget of the Europol Drugs Unit and
the Europol computer system.

Finally, documents 7788/96 and 7791/96 contain references to
opinions of the Council Legal Services on the issue of
judicial
interpretation of the Europol Convention, as well as comments
made by some delegations on this matter.(cid:146)

In his complaint to the Ombudsman, the complainant claimed
that
the Council’s treatment of his requests for access to
documents was unfair and possibly unlawful.

The inquiry

The Council’s opinion

The complaint was forwarded to the Council, together with
five other complaints made by the same complainant.
In
March 1997, the Council sent a reply which contested the
competence of the Ombudsman to deal with the complaints.
On 15 April 1997, the Ombudsman wrote to the Council
confirming his original decision that
the complaints were
within his mandate and renewing his request for an opinion
on the substance of the complaints.

On 20 June 1997 the Council
the
Ombudsman’s request. As regards the application of a (cid:145)fair
solution(cid:146), the Council remarked that its opinion on another
complaint
(1053/25.11.96/
complainant
Statewatch/UK/IJH) also applied in this case.

complied with

same

the

by

The complainant’s observations

In his observations, the complainant claimed that:

(cid:151) the Council was not entitled to apply a (cid:145)fair solution(cid:146) to his

four requests for documents,

(cid:151) the Council is not entitled to refuse access to documents
on the grounds that they have been recently adopted, or
that they include the views of Member States.

The Ombudsman’s inspection of documents

The Ombudsman considered it necessary to inspect the seven
documents to which the Council had refused access under
Article 4(2) of Decision 93/731/EC.

The Ombudsman informed the complainant of the inspection
which, in conformity with Article 4(1) of the Statute of the
Ombudsman, could not involve release to the complainant of
the documents themselves, or any information contained in
them.

The inspection was carried out in the Justus Lipsius building of
the Council
in Brussels on 2 October 1998. As well as
providing access to the documents, the Council services offered
to supply copies to the Ombudsman’s services if required.
After inspection of the documents, the Ombudsman’s services
considered that it was unnecessary to take copies.

The Decision

1.

The jurisdictional point

1.1. The

Council’s

objection

to

the Ombudsman’s

competence appeared to be based on two propositions:

(a)

the competence of the Ombudsman does not extend
to actions
in relation to
cooperation in the fields of Justice and Home Affairs
(the (cid:145)third pillar(cid:146)); and

taken by the Council

(b) the subject matter of the complaints concerns action

taken by the Council under the third pillar.

1.2. The Ombudsman’s decision that he can deal with the
complaints is based on his view that the second of these
propositions is mistaken. It is therefore unnecessary for
him to take a position on the first proposition.

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Official Journal of the European Communities

18.10.1999

1.3. The subject matter of

the complaints concerns

the
Council’s response to requests for access to documents.
The requests were made under Decision 93/731/EC and
were dealt with by the Council accordingly. Decision
93/731/EC was made under Article 151 of
the EC
Treaty. In its judgement in Netherlands v Council (1), the
Court of Justice confirmed that the Decision has legal
effects vis-(cid:224)-vis third parties as a matter of Community
law.

documents. Given

1.4. The Decision was interpreted and applied by the Court
of First Instance in Carvel and Guardian Newspapers v
Council (2), a case which also involved access to third
the
pillar
jurisdiction of the Court of Justice imposed by Article L
of the Treaty on European Union, the Court of First
Instance would have had no jurisdiction to deal with this
aspect of
to third pillar
documents was itself a third pillar matter.

the Carvel case if access

limitations

the

on

3.

The refusal of access under Article 4(2)

3.1. The Council refused access to seven documents under
Article 4(2) of Decision 93/731/EC, which reads as
follows:

(cid:145)Access to a Council document may be refused in order to
protect the confidentiality of the Council’s proceedings.(cid:146)

According to the established case-law, the application of
this provision requires the Council to strike a genuine
balance between, on the one hand, the interest of the
citizen in obtaining access to documents and, on the
its own in maintaining the
other, any interest of
confidentiality of its deliberations.

1.5.

From the above, it appears that the correct interpretation
and application of Decision 93/731/EC on public access
to documents is a matter of Community law and not a
third pillar matter, even if the documents in question
concern actions under the third pillar. The Ombudsman
informed the Council of this decision on 15 April 1997.
(NB: In its judgment of 17 June 1998, the Court of First
the Council’s
Instance rejected, on similar grounds,
objection to the jurisdiction of
in the
Tidningen Journalisten case (3)).

the Court

3.2. The complainant claims that,

in applying Article 4(2),
the Council is not entitled to refuse access to documents
on the grounds that they have been recently adopted, or
that
they include the views of Member States. The
Ombudsman is not aware of any legal rule or principle
which would require the Council, when balancing the
interests under Article 4(2), to exclude either of these
elements from consideration.

2.

The application of a (cid:145)fair solution(cid:146)

3.3. The Ombudsman’s inspection of documents confirmed
in question

that
correspond to the reasons given by the Council.

the documents

contents of

the

2.1. The complainant has claimed that Article 3(2) of
to
Decision 93/731/EC does not entitle the Council
apply a (cid:145)fair
for
four applications
documents.

solution(cid:146)

to his

2.2. As the Council noted in its opinion, the issue in relation
to this aspect of the complaint is identical to that raised
in another complaint by the same complainant: 1053/
25.11.96/Statewatch/UK/IJH. The Ombudsman’s decision
of 28 July 1998 in the above case therefore also applies
to the present case.

2.3. Applying the above decision, in particular as regards the
meaning of the terms (cid:145)repeat applications(cid:146) and (cid:145)very large
documents(cid:146), it is clear that the Council was not entitled to
apply a (cid:145)fair solution(cid:146) under Article 3(2) of Decision
93/731/EC to the four requests for documents in this
case.

(1) Case C-58/94 [1996] ECR I-2169.
(2) Case T-194/94 [1995] ECR II-2765.
(3) Svenska Journalistf(cid:246)rbundet

judgment of 17 June 1998,
judgment).

(Tidningen Journalisten) v Council,
the
(see paragraphs 70(cid:151)87 of

3.4. There appears, therefore, to be no maladministration by

the Council in relation to this aspect of the case.

Conclusion

As regards the application by the Council of a (cid:145)fair solution(cid:146),
the Ombudsman’s
1053/25.11.96/
Statewatch/UK/IJH (decision of 28 July 1998) applies also to
the complainant’s requests for documents in the present case.

remark

critical

in

the

regards

refusal of

As
to seven documents
under Article 4(2) of Decision 93/731/EC, on the basis
to be no
inquiries,
of
maladministration by the Council.

the Ombudsman’s

there appears

access

The Ombudsman therefore closed the case.

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Official Journal of the European Communities

C 300/27

3.1.3. THE EUROPEAN COMMISSION

which are summarised in the section on further remarks
below.

COMPETITION: REPLY TO A SUBMISSION (cid:151) OMBUDSMAN’S
COMPETENCE

Decision on complaint 449/96/20.02.96/HKC/PD against
European Commission

the

The complaint

for

competition rules

In February 1996, HKC, a Danish law firm, complained to the
Ombudsman on behalf of LF, a Danish trade union. The
complaint concerned the Commission’s decision to grant an
exemption from the
an alliance
agreement between two airlines, whose employees were
the agreement
In the complainant’s view,
members of LF.
would lead to job losses amongst LF members. According to
the Commission had an obligation to take effects on
LF,
unemployment
into account when considering whether to
grant competition exemptions. The complaint also concerned
the fact that LF’s observations, which the Commission had
invited LF to submit
to it under the applicable exemption
Regulation, were neither acknowledged nor replied to.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission claimed that the Ombudsman was
not competent to take a stand on the question of whether
effects on unemployment should be taken into account when a
competition exemption was granted, as the matter concerned
an alleged failure in applying the law, as opposed to
maladministration. The Commission furthermore contended
that it was not obliged to reply to observations which it had
invited third parties, such as LF, to submit, as the observations
were merely intended to assist the Commission in its analysis.

The complainant’s observations

In its observations, the complainant maintained the complaint
and considered the Ombudsman competent to deal with all its
aspects.

The Decision

1. The Ombudsman considered that he was competent

to
deal with the question of whether the Commission was
into account
obliged to take effects on unemployment
when
competition
grant
exemptions. Further remarks on this issue were made in a
letter to the President of the Commission, the contents of

considering whether

to

2. On the substantive issue the Ombudsman found that, on
the basis of the applicable rules and the case-law of the
Court of Justice, there appeared to be no obligation upon
the Commission to take such considerations into account.

3. As for the Commission’s failure to acknowledge and reply
to LF’s observations,
the Ombudsman observed that
the applicable Regulation contained no such obligation.
However, by inviting third parties to submit observations,
intended to assist it in its analysis, the Commission had
placed itself
in a situation where the citizens could
reasonably expect a reaction from it: all the more so in
this case, as LF had an interest in the decision by virtue of
the fact that its members were possibly affected by it. The
Commission’s failure to give a reaction to LF had been,
therefore, an instance of maladministration.

this aspect of

the case concerned procedures
Given that
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

Further remarks

to the President of

In a letter
accompanied
summary, the following further remarks:

the Decision,

the Commission, which
in

the Ombudsman made,

The Commission is always welcome to give its views on the
admissibility of a complaint, whilst acknowledging that it is for
the Ombudsman to decide the question. In this case, however,
a fundamental misunderstanding should be corrected. The
service responsible for drafting the Commission’s replies to the
Ombudsman in this case appeared to have assumed that
(cid:145)wrong application of the law(cid:146) cannot be (cid:145)maladministration(cid:146). In
fact, the opposite is true: it can never be good administration
to fail to act in accordance with the law. The first and most
essential task of the Ombudsman when conducting inquiries
into possible instances of maladministration in the activities of
a Community institution or body is to establish whether the
institution concerned has acted lawfully. In carrying out this
task, the Ombudsman is always mindful of the fact that the
highest authority on the meaning and interpretation of
Community law is the Court of Justice.

In other cases in which a complaint has expressly raised a
question concerning the interpretation or application of the
law, the Commission has supplied an opinion on the matter,
which has been forwarded to the complainant. It is normal
the Commission should respond in this way and the
that
Ombudsman trusts that it will continue to do so. The office of
the European Ombudsman was set up in order to enhance
relations between the Community institutions and bodies and
European citizens. This is impossible if an institution does not
give its opinion on all the issues presented by a complainant.

C 300/28

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Official Journal of the European Communities

18.10.1999

In cases where the institution explains that
it has acted
correctly in accordance with the rules and principles that are
binding upon it, the citizen is sometimes satisfied with the
explanation, or at
the
institution’s actions. More generally, it is always helpful for the
Commission’s opinions to explain its position on the legal
elements in a case, in order to ensure that its views can be
taken into account in the Ombudsman’s inquiry.

least has a better understanding of

The Ombudsman concluded by requesting the President of the
Commission to ensure that responsible Commission services
take these further remarks into account when preparing the
Commission’s replies to the Ombudsman.

Finally, the Commission stated that all those sums were subject
to the internal financial monitoring by the institution itself,
and also by the external control of the Court of Auditors.

The complainant’s observations

In her observations, Mrs A. stated that her requests were still
unanswered. In her view, the Commission had merely referred
to a Regulation which was unknown to her. Those comments
also referred to a total amount of ECU 1 300 000 paid in
expenses to all members of the Commission, but without any
indication related to the two Commissioners mentioned in the
request.

COMMISSIONERS’ SALARIES: REQUEST FOR INFORMATION

The Ombudsman’s efforts to achieve a friendly solution

Decision on complaint 586/3.5.96/MCA/ES/JMA against
European Commission

the

The complaint

On behalf of the (cid:145)Asociaci(cid:243)n Amigos de BenalmÆdena(cid:146), Mrs A.
lodged a complaint with the Ombudsman in April 1996,
concerning the failure of the European Commission to reply to
its
and other
emoluments of two members of the Commission in 1993 and
1994.

information on the

requests

salaries

for

The complainant stated that the Commission had failed to
reply to two previous letters sent to its Madrid office, on 17
October and 17 December 1995 respectively. In these letters,
she
(salary plus
allowances) earned in 1993 and 1994 by the Spanish members
of the Commission, at the time, Messrs Mar(cid:237)n and Matutes.

requested information on the

income

The inquiry

The Commission’s opinion

original

The complaint was forwarded to the Commission.
In its
opinion, the Commission apologised for its failure to answer
that
the
for
salaries
Commissioners
cases by Council
Regulations No 422/67/EEC, No 5/67/Euratom of 25 July
1967, as amended on a number of occasions.

and
governed

indicated
in all

letters,
are

With regard to mission and travel expenses, it stated that the
total amount paid to all Commissioners for this type of
In addition,
expenses
Commissioners
of
representation expenses,
sums being
ECU 341 000 in 1993 and ECU 335 000 in 1994.

ECU 1 300 000.
the

in 1994 was
are

to
corresponding

entitled
the

reimbursement

In accordance with Article 3(5) of the Statute and with a view
of seeking a friendly solution to the case, the Ombudsman
wrote again to the Commission. He referred to the fact that
the reply given by the institution was still unsatisfactory for
the complainant.

He also suggested that the Commission’s answer would have to
be reviewed in the light of the European Union’s commitment
towards transparency and public access to information. In view
of those principles, he proposed that a satisfactory solution
could be found if the Commission, after balancing the interests
at stake, were to provide some clearer and more precise
information, thereby justifying a clear conclusion as to the
information which could be made available.

In its reply, the Commission indicated that it had tried to
strike a balance between the need for transparency and the
protection of privacy. In order to reach this compromise, it
had disclosed information on salaries and other allowances
related to the whole of
the Commission rather than that
concerning specifically two of its members.

regards

representation expenses,

the Commission stated that

Then,
its members’ monthly
salaries plus other allowances were last established by the
Council on December 1996, and explained how they were
they were
calculated. As
reimbursed after the invoice had been issued. They were
reimbursed up to a maximum of ECU 11 347 per year (for the
Commissioner
the sum is
ECU 17 023). Officials who have to travel, in compliance with
their duties, receive a reimbursement for travel expenses and
daily subsistence allowances which are related to the country
in which the mission takes place.

responsible for

foreign affairs,

reply of

the Commission was

forwarded to the
The
complainant with an invitation to consider
the solution
proposed by the Commission. In the reply, the complainant
expressed her satisfaction with the efforts undertaken by the
European Ombudsman to find a friendly settlement of this
matter. Nevertheless, she still believed that the reply of the
Commission had not answered her questions clearly and
specifically. In her view, the control of public expenditure is a
paramount objective which should take precedence over any
privacy right.

18.10.1999

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Official Journal of the European Communities

C 300/29

The Decision

3. Failure to answer correspondence

1. Right to the Community’s information

The requests for information sent by the complainant to the
Commission in her letters of 17 October and 17 December
1995 raise questions relating to the right of all Community
citizens
the
informed on important
administrative workings of the Commission.

aspects of

to be

In order to weigh up the legal implications of this request, it is
necessary to start out from the European Union’s undertaking
the Community institutions and
to make the workings of
bodies more transparent and more open to the public. This
commitment was spelt out in the Final Act of the Treaty on
European Union, which includes Declaration No 17 on the
right of access to information. Similarly, it was reaffirmed in a
number of European Councils, such as those at Birmingham
and Edinburgh.

At present, there are only rules to foster greater public access
to information as regards access to documents. In relation to
this institution adopted on 2 June 1993
the Commission,
communication 93/C 166/04 on transparency
in the
Community (1), and, on the basis of the guidelines set out in
adopted Decision
that
94/90/ECSC/EC/Euratom on public access
to Commission
documents (2). In the absence of more general rules concerning
general
information, existing rules on access to documents
could provide an appropriate surrogate to decide on citizen’s
requests for information sent to the institutions.

text, on 8 February 1994 it

2. Conflict between transparency and privacy rights

The Commission has stated in its comments that specific
information on the salaries and other emoluments, mainly
travel allowances, concerning individual members of
the
rights.
Commission
Accordingly the information which this institution has made
public in this case referred only to the entire Commission.

impinge

privacy

could

their

on

for

The Commission acknowledged that there was a failure to deal
promptly with the request
information sent by the
complainant to its Madrid office. However, the institution has
offered an explanation for the long delay and apologised for it.
Since a reply has also been given, there were no grounds for
the European Ombudsman to pursue this aspect of the case
further.

4. Control of public expenditure

In the complainant’s view, the failure of the Commission to
respond to her questions on the salaries and other emoluments
of two Commissioners, made evident the lack of control on
this type of expenditure.

accounts,

including

its personnel

All Community
and
functioning expenditures, are periodically audited by the Court
of Auditors. As established in Article 188c of the Treaty, this
institution (cid:145)shall examine whether all
revenue has been
received and all expenditure incurred in a lawful and regular
manner and whether
the financial management has been
sound(cid:146).

The European Ombudsman, noted that
there were no
indications in the 1993 and 1994 Reports by the Court of
Auditors (4)
irregularities might have taken place as
regards salaries or other allowances received during those
periods by the members of the Commission.

that

these

appeared to be no
In view of
maladministration and the Ombudsman therefore closed the
case.

findings,

there

DANISH TAXATION ON IMPORTED SECOND-HAND CARS

the

Public release of information could come into conflict with
other important values, such as the right of privacy. In the
the Commission Decision on public access to
context of
Commission documents, protection of
individual or
privacy is considered a mandatory exception which bars the
disclosure of the requested document by the institution.
In
interpreting this provision,
Instance has
stated that:
(cid:145)[(cid:133)] the Commission is obliged to refuse access to a
document falling under any one of the exceptions contained in this
category once the relevant circumstances are shown to exist(cid:146) (3). In
view of
the European
Ombudsman does not consider that the Commission violated
principles of good administration when it disclosed only
information related to the whole of the Commission.

the Court of First

circumstances of

case,

the

the

(1) OJ C 166, 17.6.1993, p. 4.
(2) OJ L 46, 18.2.1994, p. 58.
(3) Case T-105/95, WWF UK v Commission [1997], ECR II-313,

paragraph 58.

Decision
European Commission

on

complaint 764/9.7.96/TH/DK/PD against

the

The complaint

Mr H., a Danish citizen lodged a complaint with the European
Ombudsman in July 1996 concerning the Commission’s
dealing with and assessment of a complaint that he had lodged
with the Commission, alleging that Denmark had failed to
fulfil its obligations under Community law.

for years he had
In his complaint Mr H.
been corresponding with the Commission concerning the

stated that

(4) OJ C 327, 24.11.1994, p. 1.
OJ C 303, 14.11.1995, p. 1.

C 300/30

EN

Official Journal of the European Communities

18.10.1999

just:

(hereinafter

calculation of VAT on second-hand cars imported to Denmark
imported
from another Member State
second-hand cars). He put forward that the answers that he
had received from the Commission were untrue. From the
Annexes to the complaint it appeared that this correspondence
to Danish registration fees on imported
also related
second-hand cars. Consequently, the Ombudsman asked the
Commission to address both questions when giving its
comments on the complaint.

for

the

concerning VAT,

complainant’s grievance

As
it
appeared that he considered that Danish VAT rules on
imported second-hand cars were discriminatory to Danish
dealers like him. He stated that the Danish rules imply that a
private person residing in Denmark can import a second-hand
car from Germany without paying VAT in Denmark, if VAT
has been paid in Germany on the profit margin of the dealer.
On the other hand, the Danish dealer who imports the same
car will have to pay Danish VAT on the full price of the same
car and can get the German residual VAT reimbursed. The
consequence is that the price that the Danish dealer can offer
the private person on the same car will be significantly higher
than the price the German dealer can offer. Therefore the
complainant considered that the rules led to a discriminatory
distortion of competition and were contrary to Directive
94/5/EC concerning VAT on second-hand
the
fundamental principle of which is that VAT shall be paid on
the dealer’s profit margin.

goods,

lawyer and a Danish Member of

Mr H. addressed the Commission on this question, and as he
was not satisfied with the Commission’s initial response, he
had his
the European
Parliament pursue the matter vis-(cid:224)-vis the Commission. In its
answer to the lawyer of 3 March 1995 as well as in its answer
of 23 October 1995 to the MEP, the Commission maintained
that the Danish rules were not contrary to the Community
Directives in this field. In his letter of 23 October 1995 the
Commissioner responsible stated:

(cid:145)You (your MEP) point out the distortions of competition that
the Danish dealers of second-hand cars
seem to exist against
because of
regimes applicable in Denmark and
Germany.

the different

At this stage of the harmonisation of national laws, I am afraid
there is no way, in legal terms, to cope with that inconvenience.
fact, Article 28o(2) of Directive 94/5/EC
As a matter of
concerning
to
applicable
second-hand goods, expressly allows Denmark to derogate from
the margin scheme.

arrangements

special

inter

alia

Should you however still have comments or new information,
please do not hesitate to contact the services of DG XXI (cid:151) unit
01.(cid:146)

for

As
registration fees,

the

complainant’s

other

grievance

the background was,

in summary,

concerning
the

cars

amounted

for
to discriminatory

following: By judgment of 11 December 1990 in Case
Justice ruled on the
the Court of
C-47/88 (ECR I-4509),
imported
question whether Danish registration fees
second-hand
taxation,
prohibited by Article 95 of the EC Treaty. The Danish tax
system implied that imported second-hand cars were subject to
a motor vehicle registration fee of 90 % of their value as new
cars, while second-hand cars originating in Denmark were not
subject to a registration fee. In order to justify this, Denmark
argued that, as it has no car industry, all second-hand cars
originating in Denmark had, at a certain moment, been
imported as new cars. New cars were submitted to a
registration fee of 105 % of their price, including VAT, up to
the price of DKK 19 750,00 and 180 % of the rest of the price.
Thus, a considerable part of the price of second-hand cars
originating in Denmark would consist of a residual registration
fee. Consequently, registration fees for imported second-hand
cars should be fixed at a level to take account of the residual
registration fee in second-hand cars originating in Denmark.
Although the Court of Justice accepted this consideration in
principle, it found that generally, the Danish system led to a
manifestly excessive taxation of
imported second-hand cars.
The system was therefore contrary to Article 95 of the EC
Treaty. After
the Danish authorities
established a system which in principle aims at ensuring that
imported second-hand cars are not submitted to registration
fees to a further extent so that the total value of the car will
equal the value of an identical second-hand car originating in
Denmark. The system is administered so that before the
import of a second-hand car, the importer, whether private or
professional, can obtain a provisional indication of what the
registration fee will be. After import, the authorities fix the
final registration fee to be paid, possibly after inspecting the
imported second-hand car.

the Court’s

ruling,

Mr H. considered that
the new system operated in a way
which continued to be contrary to Article 95 of the Treaty.
According to him, the final registration fees fixed after import
of the car could be so high that the car could not be sold; the
fees were not
fixed in an objective way; and there was
considerable delay involved in the procedures one had to go
through in the context of importing a second-hand car.

Against this background Mr H. lodged a complaint with the
Commission. By letter of 29 November 1994 the Commission
replied to his complaint in the following terms:

(cid:145)With reference to the complaint you lodged with the Commission
on 28 October 1993 and your telex of 24 February 1994, the
Commission’s stance is as follows:

You state that the Danish system of VAT and registration duty
makes it difficult to import used cars from another Member State
into Denmark for the purpose of selling them since the duty on
imported used cars is so high that they cannot compete with used
cars originally registered in Denmark; you allege that this practice
conflicts with Article 95 of the Treaty.

18.10.1999

EN

Official Journal of the European Communities

C 300/31

As regards registration duty on used cars imported into Denmark,
the Danish rules on used cars were amended following the
judgment of the European Court of Justice of 11 December 1990
in Case 47/88. The Court found then that the duty on imported
used cars was discriminatory and conflicted with Article 95 of
the Treaty.

stated that it was still studying Mr H.’s allegation that the
Danish rules, although in compliance with Article 28o of
Directive 94/5/EC, were
to Article 95. The
Commission stated that this argument concerning a Directive’s
incompatibility with the EC Treaty raised problems that
it
would have to analyse in detail. By letter of 26 June 1997 the
Commission informed the Ombudsman about the results of its
analysis. It stated:

contrary

Even though you may be acquainted with the new Danish rules
on the registration of used cars, I would point out that they can
be found in the Regulation pursuant
to law No 665 of 16
August l993 on registration duty for motor vehicles which states
that the basis for calculating the fee is assessed by three assessors
appointed by the Minister
for Inland Revenue. The assessors
include a technical expert and a trade expert appointed on the
recommendation of
car owners.
Complaints about the dutiable value set by the customs and excise
authorities may be lodged with the assessors.

the main organisations of

The abovementioned Regulation contains a detailed description of
the procedure, and indicates that the duty on an imported used
car is based on its real value. On the basis of the information
provided, the Commission is of the view that this is not a duty
that in general is higher than what corresponds to the residual
value of the duty involved in the value of a used car of the same
type and age registered in Denmark when new. The basis for
assessing a vehicle is the normal price of a similar vehicle or a
vehicle that, so far as possible, is a similar make and model in a
normal state of repair at the time of registration. Deductions are
made or
repair,
improvements and other characteristics. The final price may thus
differ from the various trade lists depending on the individual
assessment. The estimated dutiable value of used cars may not
lead to deviations from the list prices officially applied to cars
originally registered in Denmark if
they are
identical in all respects.

extra charges added for mileage,

is proved that

state of

it

If you find that the dutiable value finally established is too high
compared with the residual dutiable value for similar vehicles
registered for the first time in Denmark, I urge you to contact my
department again with details of the assessment.(cid:146)

satisfied by either answer

As Mr H. was not
from the
Commission, he lodged the complaint with the Ombudsman,
alleging that
the Commission’s answers were untrue and
contrary to Community law.

The inquiry

The Commission’s opinion

(cid:145)1. First of all, we find that,

in cases where the (cid:147)special tax
arrangements(cid:148) referred to in Article 28o of the sixth VAT
Directive apply (notably in Denmark pursuant to the option
granted it by paragraph 2 of the said Article) by way of
derogation from the normal system of taxing the resale of
second-hand goods introduced by Directive 94/5/EC the
difference in the tax charge stems from the differences which
exist between the rate of VAT in force in Denmark (25 %)
and those in force in other Member States. It can even be
stated that pursuant to the deduction mechanism laid down,
or even imposed by Article 28o(1)(b) and the third indent of
(c), the difference in the tax charged on second-hand vehicles
resold in Denmark and which varies on the basis of
the
vehicles’ Member State of origin, is a direct consequence of
the difference in the rates of VAT applied by the various
Member States. It may even be noted in passing that this
difference in VAT rates is the result of a deliberate choice by
the Community legislator who, within a broadly harmonised
system of taxation such as the VAT system, confined himself
to laying down, in Article 12(2)(a) of the sixth Directive, a
minimum rate of 15 %, thus implicitly leaving the Member
States free to set VAT rates which are higher than the said
floor (cid:147)rate.(cid:148)

2. The situation consisting of a difference of treatment between
products or
traders of different Member States (cid:151) a
difference which is entirely attributable to differences between
national laws which are not (or not completely) harmonised
(cid:151) was very recently dealt with by the Court in its Perfili
judgment of 1 February 1996 (1),
stated
(paragraph 17 of the judgment):

in which it

the Court has

consistently held that,

(cid:147)However,
in
prohibiting every Member State from applying its law
differently on the ground of nationality, within the field
of application of the Treaty, Articles 6, 52 and 59 are
not concerned with any disparities in treatment which
may result, between Member States,
from differences
existing between the laws of the various Member States,
so long as they affect all persons subject to them in
accordance with objective criteria and without regard to
their nationality (see, to that effect, the judgments in
Case 1/78 Kenny v Insurance Officer [1978] ECR
Joined Cases C-251/90 and
1489, paragraph 18;
[1992] ECR I-2873,
252/90 Wood and Cowie

In its comments the Commission put forward that it had dealt
appropriately with Mr H.’s case and it maintained its analysis
of the case, set out in the letters quoted above. Furthermore, it

(1) Case C-177/94, Criminal proceedings against Gianfranco Perfili

[1996] ECR I-161.

C 300/32

EN

Official Journal of the European Communities

18.10.1999

paragraph 19; and Joined Cases 185/78 to 204/78
Van Dam en Zonen and others (1979) ECR 2345,
paragraph 10).(cid:148)

in

question,

the very general

that
the Court

interpretative principle
3. We consider
expressed by
in the abovementioned Perfili
judgment and in many earlier judgments may be applied,
while adapting it to the circumstances of the case, to the
a
problem
non-discrimination rule (cid:151) Article 95 (cid:151) broadly similar in
spirit to the Articles 6, 52 and 59 of the Treaty explicitly
mentioned by the Court. If the rate of VAT was directly set
by the Community legislator at a uniform percentage of the
price of the goods supplied throughout the Community, the
disadvantages indicated by certain Danish dealers would
automatically disappear.

comes

which

under

It should also be noted that even at the present time the
problem of a heavier tax charge in respect of second-hand
vehicles resold in Denmark and purchased in other Member
States arises only in respect of vehicles coming from Member
States which apply a rate of VAT which is lower than the
Danish rate, whereas no difference in taxation could affect
second-hand vehicles purchased in a Member State which
applies the same rate of VAT as Denmark (e.g. Sweden). A
vehicle coming from a Member State which, for argument’s
sake, had set its rate of VAT at more than 25 % would
actually receive more advantageous tax treatment than the
same second-hand vehicle purchased within Denmark.

4.

the difference in the tax charge which,

In the light of the foregoing considerations, we are of the
opinion that
in
Denmark, stems from the different rates of VAT which the
dealer has to deduct as (cid:147)input tax(cid:148) from the (cid:147)output tax(cid:148) for
which he is liable pursuant to Article 28o(1) of the sixth
Directive, (cid:147)results(cid:148)(cid:151) to use the same words as the Court (cid:151)
(cid:147)from differences existing between the laws of
the various
Member States(cid:148).

that

(cid:147)input VAT(cid:148)

is deducted in
It would also appear
(cid:147)the rate
accordance with an objective criterion, namely,
applicable in the Member State within which the place of the
supply to the taxable dealer, determined in accordance with
Article 8, is deemed to be situated(cid:148), a criterion which has no
regard to the origin of the product and is applied without
distinction to all dealers subject to Danish VAT legislation
and to all used vehicles resold in Denmark.

In these circumstances, we conclude that Denmark is not in
infringement of Article 95 of the Treaty.(cid:146)

The complainant’s observations

In his observations Mr H. maintained that the Commission had
not dealt with his case. Furthermore, as for his grievance

fee and that the staff

related to registration fees, he put forward that in some cases
the Danish authorities’ establishment of the final fee varied
considerably from the provisional
in
charge of the evaluation of imported second-hand cars was not
competent. He furthermore stated that before importing a
second-hand car, one was required to produce the registration
papers of the car in order to know the provisional fee and that
this requirement implied in practice that one had to buy the
car without knowing the amount of the final fee, the reason
being that no car dealer would hand out registration papers
without first having sold the car in question. He furthermore
stated that the Danish rules entailed a problem in the leasing
of imported second-hand cars and that imported second-hand
taxis were not put on an equal footing with second-hand taxis
originating in Denmark. Furthermore, he stated and evidenced
that a person resident in Denmark who worked for a German
company in Germany could not fully use the company car in
Denmark that the company put at his disposal.

The Decision

As for both grievances, it has to be recalled that the European
Ombudsman cannot
inquire into the activities of national
authorities. The Ombudsman can therefore only inquire into
Mr H.’s original allegation that the Commission had not dealt
with and properly assessed the case that he had brought
forward.

thus whether

As for his grievance concerning registration fees, it appeared
that the Commission had dealt with it and assessed it. The
outstanding question was
the Commission’s
assessment was right. The system that the Danish authorities
set up after the abovementioned ruling of the Court of Justice,
was aimed at ensuring that the registration fees were set so
that the total value of the imported second-hand car, including
registration fee, did not exceed that of a second-hand car
originating in Denmark, including the residual registration fee
paid when the car was new. The Commission found that this
system as such complied with the Court’s ruling. If Mr H. had
proof of the contrary, the Commission invited him to submit
that proof. There were no elements at hand which indicated
that this assessment was wrong. However, it shall be recalled
that the Court of Justice is the highest authority on questions
of Community law.

for

the

the rules

thus
right.

concerning VAT,

complainant’s grievance

equally whether
It

and uncontested between Mr H.

crucial question was
assessment was

it
As
appeared that the Commission had dealt with it and assessed
it. The
the
appeared to be
Commission’s
the
established
Commission that
in question could lead to a
competitive disadvantage in certain situations between Danish
dealers and German dealers. Furthermore, there appeared to be
agreement between Mr H. and the Commission that
the
Danish rules were allowed under Directive 94/5/EC. The
question was thus whether the regime allowed under Directive
94/5/EC was contrary to the Treaty. The Commission had
found that
stemmed from the
differences in the rate of VAT which are allowed under
Community law as it stands. It appeared that the disadvantages

said disadvantages

and

the

18.10.1999

EN

Official Journal of the European Communities

C 300/33

would in fact disappear if the same VAT rate was applicable in
assessment
and Denmark. The Commission’s
Germany
therefore appeared to be right. However,
it shall be recalled
that the Court of Justice is the highest authority on questions
of Community law.

procedure. The consequence was to give an advantage to
firms with lower quality personnel and in particular to
the current contractor.

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Commission. The Ombudsman therefore
decided to close the case.

The inquiry

The Commission’s opinion

TENDERING PROCEDURE FOR SUPPLY OF TECHNICAL SERVICES
TO THE COMMISSION

Decision on complaint 817/19.8.96/0KA/NL-EN/IJH against the
European Commission

The complaint

In August 1996, Dr. O. d. K complained to the Ombudsman
about a call for tenders organised by the Commission. His
consultancy company submitted a tender to supply technical
assistance to the Directorate for Public Health and Health and
Safety at Work (DG V F). The Commission then informed him
that it had cancelled the call for tenders because of translation
errors in the tender documents and that it intended to proceed
with a new limited accelerated procedure. He participated
unsuccessfully in the new procedure.

The complaint was forwarded to the Commission. As regards
the alleged procedural errors,
the Commission’s opinion
included in summary the following points:

(i)

(ii)

the Commission sent
the
companies selected to tender at the same time and by
registered post;

the tender documents to all

the closing date for the receipt of tenders was 14 June
1996. The Commission replied to the faxed queries from
the complainant by telephone on 10 June 1996, one and
a half working days following receipt of the fax. The
Commission acknowledged that
reply in
writing;

it did not

(iii) Article 11(2) of the Services Directive is relevant only
is awarded using the negotiated
restricted

accelerated

case,

the

a

contract

where
In this
procedure.
procedure was used.

He claimed that
requirements of the Services Directive (1) by failing to:

the Commission had violated procedural

The Commission’s response to point (iv) of the complaint was,
in summary, as follows:

(i)

supply documents for the second tender by the most
rapid means, as required by Article 20(3) of the Directive;

(ii)

respond to his faxed requests for clarifications within four
days of the closing date for tenders, as required by Article
20(2) of the Directive;

(iii)

respond to his request for negotiations, as foreseen by
Article 11(2) of the Directive.

(a) when the bids from the first call for tenders were opened it
was discovered that there were differences in the tenderers’
interpretation of
the specifications for human resources
because, as the result of a translation error, the French
version of
referred to (cid:145)man/months(cid:146)
whereas the German and English versions referred to
(cid:145)hours/month(cid:146). Since the bids were not comparable, the
Commission cancelled the procedure;

the specifications

(b)

in view of the urgency, the Commission organised a new
call for tender using the restricted accelerated procedure;

He also claimed:

(iv)

that the real reason for cancelling the first tender was not
translation errors, but an illegitimate purpose. Specifically,
the requirements for quality of personnel specified in the
first procedure were rendered inoperative in the second

(1) Council Directive 92/50/EEC of 18 June 1992 relating to the
the award of public service
for

coordination of procedures
contracts (OJ L 209, 24.7.1992, p. 1).

(c) apart from adapting the invitation to tender to the new
procedure
the
technical specifications in the second invitation to tender
were identical to those in the first;

translation error,

and correcting

the

(d) unlike

the open procedure,

restricted procedure
comprises two distinct stages: selection of participating
firms, followed by award of the contract. Requirements for
quality of personnel were applied at the selection stage;

the

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Official Journal of the European Communities

18.10.1999

(e)

the procedure was properly followed and the award report
showed that the accusation that the previous contractor
was given preference is quite unfounded. The various lots
were awarded to the companies that put in the lowest
bids.

The complainant’s observations

The complainant’s complementary observations

In his observations, the complainant made a detailed criticism
of the Commission’s reply and insisted that the Commission
had violated the rules of public procurement and practised
maladministration.

In his observations, the complainant made detailed criticism of
the Commission’s opinion, and gave further detail of his
claims. The observations included, in summary, the following
additional points:

He claimed that the Commission should prove that the criteria
for quality of personnel were actually applied by providing
him with detailed information and documents concerning the
successful tenderer’s bid and the quality of his personnel.

(i) use of the negotiated procedure under the Directive would
have been appropriate given the irregularities in the bids
made under the original procedure, including differences in
interpretation of the amount of translation work to be
tendered for;

(ii) the complainant questioned whether the Commission had
actually used the criteria for quality of personnel contained
in the tender documents in comparing the bids received
and whether the Commission could demonstrate that the
successful tenderer actually met the criteria.

Further inquiries

The Decision

1.

The allegations of procedural violations of the Services
Directive

1.1. Article 56 of

the

Financial Regulation (1)

requires
Community institutions to comply with the obligations
of
the Services Directive when concluding service
contracts for which the amount involved is equal to or
greater
than a threshold. The Commission has not
contested the complainant’s assertion that the Directive
applied to the tenders in question.

In view of the fact that the complainant’s observations made
new claims, they were forwarded to the Commission with a
request for a further opinion.

The Commission’s reply

The Commission’s reply included, in summary, the following
points:

1.2. The complainant claimed that the Commission breached
Article 20(3) of the Directive by failing to supply the
tender documents by the most rapid means. According
to evidence supplied by the Commission, which the
complainant has not contradicted, documents were sent
to all the companies selected to tender at the same time
and by registered post. Furthermore,
it is not obvious
that the Article of the Directive cited by the complainant
is intended to impose obligations on the contracting
authority as well as the tenderer.

(i)

an error of

the complainant had no reason to request a negotiated
procedure because there were no irregularities, only at
most
regards
translation costs, the Commission carefully compared the
tenders relating to this item in order not to discriminate
the differences in the
against any tenderer in spite of
tenders received;

interpretation. As

textual

(ii) at

the

selection stage of

restricted accelerated
the
procedure,
the Commission checked the quality and
qualifications of the personnel proposed on the basis of
the details provided by the various tenderers. Only those
tenderers who satisfied the selection criteria were sent the
specifications to enable them to submit a tender.

it did not

1.3. The complainant claimed that the Commission breached
the Directive by failing to supply
Article 20(2) of
additional information within the period prescribed. The
reply in
Commission acknowledged that
writing to the complainant’s
for additional
information. However, it is common ground that there
was communication by telephone. Furthermore, Article
20(2) only applies when additional information has been
requested by the tenderer (cid:145)in good time(cid:146). On the basis of
the factual circumstances of this case as they appeared
from the Ombudsman’s
it was
questionable whether any breach of the requirements of
Article 20(2) occurred.

therefore,

inquiry,

request

(1) As amended by Council Regulation (EC, Euratom, ECSC) No

2333/95 (OJ L 240, 7.10.1995. p. 1).

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Official Journal of the European Communities

C 300/35

to the requirements of

1.4. The complainant claimed that the Commission should
have used the negotiated procedure. The choice of
procedure is a matter for the contracting authority,
subject
the Services Directive.
Apart from the claims which are considered in Section 3
of this decision, no argument has been presented to the
Ombudsman that the requirements of the Directive were
breached by use of the accelerated restricted procedure
instead of the negotiated procedure.

1.5. The Ombudsman’s

inquiries
maladministration in relation to this aspect of the case.

therefore

revealed no

2.

The allegation of an illegitimate purpose

2.1. The Commission denied the allegation that translation
errors were not the real reason for the cancellation of
the first tender procedure. Comparison of the different
language versions of the Official Journal of the European
Communities confirms that the differences identified by
the Commission exist.

2.2. The Commission denied that

the

put

bids.

lowest

Furthermore,

the previous contractor
was given preference and asserted that the various lots
involved in the tender were awarded to the companies
that
the
in
the criteria for quality of
Commission insisted that
the
the selection stage of
personnel were applied at
accelerated restricted procedure. This account of events
is
and consistent with the documentary
evidence which the Commission has supplied and on
which the complainant has had the opportunity to make
observations. Although the complainant disputes the
accuracy of
the Commission’s account, he has not
provided evidence to substantiate his allegations.

coherent

2.3. The Ombudsman’s

inquiries
maladministration in relation to this aspect of the case.

therefore

revealed no

3.

The claims for information and documents

3.1. The complainant claimed that the Commission should
supply him with information and documents to prove
that it applied the quality criteria.

3.2. Article 12 of

the Services Directive makes

specific
provision for the supply of information and reasons to
unsuccessful
to Commission
by Commission Decision
documents
94/90/ECSC, EC, Euratom (1). The complainant has made

tenderers. Public access
is

governed

(1) Commission Decision 94/90/ECSC, EC, Euratom of 8 February
1994 on public access to Commission documents (OJ L 46,
18.2.1994, p. 58).

no allegation of violation of
either of the Directive, or of the Decision.

the relevant provisions

3.3.

In view of the findings in Section 2 of this decision, the
Ombudsman did not consider it necessary to ask the
Commission to supply further information or documents
as part of his inquiry into this case.

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

ALLEGED INFRINGEMENT OF COMPETITION RULES

Decision on complaint 829/22.8.96/FDR/D/PD against
European Commission

the

The complaint

In July 1996, Mr R. petitioned the European Parliament about
the Commission’s handling of his complaints concerning
alleged infringements of Community competition rules by
certain car manufacturers and car importers.

the same matter.

In August 1996, Mr R. made a complaint to the Ombudsman
about
the European
Parliament took the view that Mr R.’s petition concerned an
alleged instance of maladministration in the activities of the
Commission. It therefore transferred it to the Ombudsman, to
be dealt with as a complaint.

In September 1996,

for

According to the complainant, cars produced by German
manufacturers are often more expensive in Germany than in
some other Member States,
the
Netherlands and Finland. Given this fact, some consumers
living in Germany address car dealers in other Member States
in order to buy their car there. When they do so,
they
sometimes run into problems such as for example refusal to
sell to consumers resident in Germany, excessive delivery times
or artificially increased prices.

example Denmark,

On a number of occasions, Mr R., who lives in Germany,
addressed individual car dealers in other Member States, with a
view to buying a car.
It appeared that he met with some
problems of the kind mentioned. Considering that refusals or
reluctance to sell cars to consumers on the grounds that they
live in another Member State are contrary to the Community
the Commission.
competition
Subsequently, there was considerable correspondence between
him and the Commission, from which it appeared that the
Commission did not
the complainant’s
perception of law that the reported instances were contrary to
the competition rules, including Commission Regulation (EC)

in principle contest

rules, Mr R.

addressed

C 300/36

EN

Official Journal of the European Communities

18.10.1999

considered that

No 1475/95 (1). However, Mr R.
the
Commission had not taken steps to enforce the competition
rules. He expressed in particular discontent with a letter that
the Commission had addressed to him on 28 June 1996. In
the letter,
the Commission referred to the exchange of
correspondence between Mr R. and the Commission and
sought
to explain its policy on the matter. The relevant
paragraphs read as follows:

(iv)

the Commission did not take seriously proven violations
of the law;

(v)

the Commission wrongly assessed whether procedures
the car manufacturers who
should be initiated against
allegedly violate the relevant competition rules;

(cid:145)(cid:133) The Commission, as the responsible administrative authority
acting in the public interest, is required to ensure compliance with
EC competition policy and, when infringements occur, take the
requisite organisational measures and,
in particular, determine
priorities. In making that choice the Commission gives precedence
to those cases which are particularly significant from the political,
economic or legal point of view. This principle also applies, of
course,
In this
receipt and handling of
connection I must point out, however,
the European
competition rules do not enable the Commission to help private
persons to enforce their subjective rights. This is basically the
function of national courts which (cid:151) unlike the Commission (cid:151)
are also able to determine entitlement to damages (cid:133)

complaints.
that

to the

(cid:133) The Commission is aware that in individual cases there may
be difficulties with purchasing a car in Finland or Denmark, the
possible reasons for which have already been explained to you in
writing by the relevant department. The fairly comprehensive
exchange of correspondence to date arising from your case shows
that the Commission has taken action within the sphere of its
responsibilities. In view of the understandable desire of millions of
drivers in the European Union to buy their cars as cheaply as
possible, and also in view of the difficulties that sometimes occur
when they do so, the Commission cannot take action in each
individual case involving a personal interest (cid:133)(cid:146).

The complainant considered the Commission’s reference to
cases of personal
interest inappropriate, as he pursued this
matter in the interest of the general public.

Against this background, Mr R. put forward six grievances in
his complaint:

(i)

the Commission was inactive in pending procedures;

(ii)

the Commission tolerated illegal practices and continuous
and systematic violation of Regulation (EC) No 1475/95;

(iii)

the Commission failed to monitor the applicable rules;

(1) Commission Regulation (EC) No 1475/95 of 28 June 1995 on the
application of Article 85(3) of the Treaty to certain categories of
motor vehicle distribution and servicing agreements (OJ L 145,
29.6.1995, p. 25), which replaces an earlier Regulation on the
matter, Commission Regulation (EEC) No 123/85 (OJ L 15,
18.1.1985, p. 16).

(vi)

the Commission ignored the citizen’s right to complain.

In brief, the complaint was to the effect that the Commission
had been passive in the matter complained of or that the
course of
action taken by the Commission had been
inappropriate.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
issue
the overall
the Commission explained that
opinion,
concerns alleged obstacles to parallel exports of new motor
vehicles
implied in
Commission Regulation (EC) No 1475/95 that a dealer may
not reject a consumer’s offer to buy, or ask for a higher price,
simply because the consumer is a resident of another Member
State.

from certain Member States.

is

It

letter

In one

issue under

consideration.

the same time,

As regards the present complaint, the Commission submitted a
thorough account of its correspondence with Mr R. Mr R. had
addressed 30 letters to the Commission since 1994, in which
he complains about
the conduct of six main German car
manufacturers. He also complained about the conduct of the
importers of these manufacturers in five other Member States.
The Commission investigated all Mr R.’s complaints about
these allegedly unlawful practices. At
the
Commission repeatedly explained to Mr R. its attitude towards
from the
the
Commissioner for Competition Mr R. was informed that in
cases of infringements the Commission would not hesitate to
take the necessary organisational measures, though it would
have to do so in accordance with its priorities. However, the
Commissioner also informed Mr R. that it could not be the
Commission’s duty to help private persons in enforcing their
subjective rights (or their so-called (cid:145)Partikularinteresse(cid:146)) which
jurisdictions. The Commission’s
is a task for the national
the approach chosen by the
comments also stated that
Commission corresponds to the principles confirmed by the
Court of First Instance. The Commission explained that the
judgment in question confirmed that the Commission has a
duty to act in the public interest. This implies, among other
its
things,
administrative resources when prioritising complaints about
infringements of Community law. The Commissioner also
emphasised that it is for the Commission to assess whether
there is evidence on the basis of which an infringement of
competition can be stipulated.

the Commission should take into account

that

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Official Journal of the European Communities

C 300/37

Finally the Commission observed that the issue is of a general
car distribution in the
about
nature. Many complaints
European Union are submitted to the Commission which
devotes considerable time and resources to the follow-up and
investigation of these complaints, among which have been the
complaints by Mr R.

(cid:145)Pursuant to Article 3(2) of Regulation No 17, natural or legal
persons who claim a legitimate interest may submit complaints.

Even on the assumption that you have a legitimate interest, the
points set out below need to be borne in mind.

In light of these circumstances, the Commission considered Mr
R.’s allegations to be unfounded.

The complainant’s observations

In his observations, the complainant emphasised that he had a
right to complain and that he not only represented his own
personal interest; that the Commission was not replying to his
correspondence nor acknowledging receipt of his letters; that
infringements were taking place and that both the Commission
and the European Parliament could easily establish them
through investigations; that the Commission however was not
investigating the infringements but rather displaying almost
complete inactivity; that the free movement of goods in fact
was not protected anywhere in the Union; and finally, he
specified various actions that the Commission, in his opinion,
should be obliged to take.

in his opinion, evaded its responsibility,

The complainant further recalled his allegations concerning the
Commission’s inactivity and tolerance towards the alleged
infringements of the competition rules, and the ways in which
the institution,
to
some extent even by means of fraud, for the upholding of
competition rules. According to Mr R.,
the Commission
supported the infringements and was completely biased in
favour of the car industry. Furthermore, he attached material,
mainly newspaper articles and price lists from some of the
companies complained of, which in his opinion show that
infringements are taking place.

Mr R. also asked the Ombudsman to investigate directly the
car manufacturers and car importers and complained to the
Ombudsman of Regulation (EC) No 1475/95 as such.

Subsequent developments

After lodging his complaint with the Ombudsman, Mr R.
continued to address
the Commission directly. On 16
December 1997 the Commission addressed a letter to Mr R.
under Article 6 of Regulation (EEC) No 99/63, informing him
that it did not intend to open formal investigations with regard
to four of the files concerning his complaints, as the matters
complained of were not of sufficient Community interest to
invited to submit
merit
observations
the
Commission within a time limit of six weeks, if he so wished.
The letter was divided into two titles, the first one called (cid:145)Your
submissions(cid:146) and the second one (cid:145)The Commission’s opinion(cid:146).
The latter read as follows:

such investigations. Mr R. was

preliminary

conclusion

this

on

of

implementing the Community’s

The opening of a formal investigation by the Commission would
entail disproportionate expenditure in relation to the limited
significance of the case. As the Community authority responsible
for
the
Commission must serve the general interest. It has only limited
administrative resources at its disposal to carry out its function,
and it cannot deploy them in every case that is brought to its
notice.

competition policy,

In your letters to the Commission you complain about the alleged
general refusal of dealers authorised by various car manufacturers
in the Community Member States referred to sell you a car for
the purpose of immediate re-export, or about the fact that they
were only prepared to do so at an allegedly excessive price.

In your letters you claim that your subjective rights have been
violated. You are free to bring an action claiming violation of
those rights before the national courts of the Member States. The
national courts can apply the European competition rules and (cid:151)
unlike the Commission (cid:151) may award damages.

In addition, since 1985 the sale of motor vehicles has been
subject to a group exemption Regulation. Commission Regulation
(EEC) No 123/85 of 12 December 1984 was in force from 1
July 1985 to 30 June 1995. It was replaced on 1 July 1995 by
Commission Regulation (EC) No 1475/95 of 28 June 1995.
The purpose (cid:151) and one advantage (cid:151) of group exemption
Regulations
to apply
European competition law. Article 6(1)(7) of Regulation (EC) No
for instance, provides that the benefit of exemption
1475/95,
automatically lapses where
consumers,
the
authorised intermediaries or dealers to buy a motor vehicle from
an undertaking belonging to the network of their choice within
the common market is indirectly or directly restricted.

to enable national

freedom of

in part,

courts

final

is,

Consequently, there is insufficient Community interest to warrant
the Commission opening an investigation.(cid:146)

In reply to this letter, Mr R. submitted observations to the
Commission to the effect that it was wrong to consider that
the complaints represented insufficient Community interest,
and he submitted observations to the same effect
to the
Ombudsman. In his observations, Mr R. repeatedly stated that
by this letter, the Commission had rejected all his complaints.

However, it appeared that the letter only concerned four of the
to his
files which the Commission had opened pursuant
complaints. Following Mr R.’s observations, the Commission
was to reach a final conclusion whether to close those four
files. Furthermore, it appeared that the Commission was still
investigating two other files that it had opened pursuant to Mr
R.’s complaints.

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Official Journal of the European Communities

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Other facts

It shall be recalled that the Commission publishes a yearly
report on competition policy.
the
Commission stated in paragraphs 54 to 55, concerning the car
sector that it received numerous complaints from consumers
who experience major problems in buying a car outside their
Member State.

In its report

for 1996,

In accordance with normal practice, the European Parliament
adopted a resolution on the Commission’s report, in which it:

(cid:145)deplores the lack of a genuine internal market relating to the
distribution and servicing of motor
vehicles, as numerous
complaints from consumers prove; calls on the Commission to
ensure once and for all a free market where consumers can
without any problems buy a car outside their own Member State
and where no obstacles to parallel trade exist.(cid:146) (1)

in January 1998,

competition rules,

it shall be noted that

the
Furthermore,
Commission adopted a Decision (2) establishing infringement of
the
committed by Volkswagen and
imposing a fine of ECU 102 million on the company. In the
press release that the Commission issued, when adopting the
decision, it was stated:

(cid:145)Commenting on the Decision, Mr Van Miert said that
the
Commission would not hesitate to take the necessary measures
against motor manufacturers who did not
comply with the
Regulation (EC) No 1475/95 governing motor trade (cid:133)

The size of the fine is an indication that the Commission will not
this kind and will act with similar
tolerate practices of
determination against other manufacturers who set out
to
partition the market.(cid:146)

The Decision

The Ombudsman’s competence

In his observations, Mr R.
asked the Ombudsman to
investigate directly the car manufacturers and car importers
concerned and to scrutinise the merits of Regulation (EC) No
1475/95. According to Article 2(1) of
the
Ombudsman:

the Statute of

(cid:145)Within the framework of the Treaties ((cid:133)) the Ombudsman shall
help to uncover maladministration in the activities of
the
Community institutions and bodies ((cid:133)). No action by any other
to the
authority or person may be
Ombudsman.(cid:146)

subject of a complaint

(1) OJ C 358, 24.11.1997, p. 55.
(2) OJ L 124, 25.4.1998, p. 60.

the Ombudsman cannot

Thus,
inquire into infringements
allegedly committed by the car manufacturers and importers,
but only into the Commission’s
those
infringements.

investigations of

Furthermore, Article 2(2) of the Statute provides:

(cid:145)Any citizen of the Union ((cid:133)) may ((cid:133)) refer a complaint to the
Ombudsman in respect of an instance of maladministration (cid:133)(cid:146).

As stated in the European Ombudsman’s report for 1995, this
means that is it not the task of the Ombudsman to examine
the merits of
the Communities such as
Regulations and Directives. Thus, the Ombudsman could not
deal with Mr R.’s
allegation concerning the merits of
Regulation (EC) No 1475/95.

legislative acts of

The Commission’s alleged passivity and the adopted course of
action

1.

it was necessary to recall

Firstly,
within which Mr R.’s complaint was to be assessed.

the legal

framework

(EEC) No

agreements

anti-competitive

the Commission

2. As for the substantive law, Article 85(1) of the Treaty
and behaviour
prohibits
which can affect trade between the Member States. Article
85(3) provides that under certain circumstances, Article
can be declared inapplicable. Under Council
85(1)
is
19/65,
Regulation
empowered to make such a declaration of inapplicability
by means of a general Regulation, a so-called exemption
Regulation. The effect of such a general Regulation is thus
that agreements that meet the conditions laid down by
the Regulation, are not prohibited by Article 85(1) of the
Treaty. On the contrary, if an agreement does not meet
the conditions or violates these, it is in principle caught
by the prohibition in Article 85(1). As concerns the
motor
the Commission has, under
Regulation (EEC) No 19/65, adopted Regulation (EC) No
1475/95 on the application of Article 85(3) of the Treaty
to certain categories of motor vehicle distribution and
servicing agreements. Article 6 of Regulation (EC) No
a
1475/95 entails
manufacturer, the supplier or another undertaking directly
or
final
consumers to obtain a new motor vehicle from whichever
authorised dealer they choose within the Community.
Thus, such a behaviour is in principle prohibited by
Article 85(1) of the Treaty.

the freedom of

indirectly seeks

apply where

it does not

to restrict

vehicle

sector,

that

3. As

for

the procedural

law laid down to make the
substantive law operational,
shall be recalled that
Article 85(1) can be applied both by the Commission and
national authorities,
jurisdictions. On
the contrary, Article 85(3) can only be applied by the
Commission. The relation between the Commission and

including national

it

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Official Journal of the European Communities

C 300/39

Journal of

national authorities is the object of a Commission notice
on cooperation between national competition authorities
and the Commission in handling cases falling within the
scope of Articles 85 and 86 of the EC Treaty, which has
been published in the Official
the European
(OJ C 313, 15.10.1997, p. 3) and the
Communities,
cooperation with national courts is likewise the object of
a Commission notice, published in (OJ C 39, 13.2.1993,
p. 6). As for the Commission’s procedures,
the main
provisions are to be found in Council Regulation No 17
and under Article 24 of this Regulation, the Commission
has adopted more detailed Regulations, among others
Regulation No 99/63/EEC. Article 3 in Regulation No 17
provides:

(cid:145)1. Where the Commission, upon application or upon its
own initiative, finds that there is infringement of Article 85
or Article 86 of the Treaty, it may by decision require the
undertakings or associations of undertakings concerned to
bring such infringement to an end.

2.

Those entitled to make application are:

(a) Member States;

(b)

natural or legal persons who claim a legitimate interest.(cid:146)

under Article 6 of Regulation No 99/63/EEC (cid:151) a
so-called Article 6 letter (cid:151) and has the right to submit
observations but cannot challenge the letter before the
Community Courts. If the Commission, after considering
the observations, persists in its view, it takes a definitive
stand which the complainant may challenge (1).

It shall be noted that in case the complainant considers
it
the Commission fails to act on his complaint,
that
follows from the case-law that the Article 6 letter brings
this failure to an end (2).

it

lacks

the Commission’s
form part of
the Treaty,

4. However, this briefly described system is complemented
by the case-law of the Community Courts, according to
which the Commission may abstain from pursuing a
complaint on the
sufficient
ground that
Community interest (3). The reasoning of the Courts is
in competition
that
responsibilities
its general obligation, as
matters
the
to monitor the application of
guardian of
the
Community law;
Commission is obliged and entitled to give different
degrees of priority to the matters before it; within the
field of competition, the criterion (cid:145)Community interest(cid:146) is
a relevant and lawful criterion. There appears to be a
general understanding that in case the Commission rejects
a complaint because of lack of Community interest, the
rights of defence of the undertaking complained of bar
the Commission from taking a stand on whether there is
an infringement or not.

in discharging this obligation,

Article 6 of Regulation No 99/63/EEC is related to this
provision. Article 6 provides:

5.

(cid:145)Where the Commission, having received an application
pursuant to Article 3(2) of Regulation No 17, considers
that on the basis of the information in its possession there
are insufficient grounds for granting the application, it shall
inform the applicants of its reasons and fix a time limit for
them to submit any further comments in writing.(cid:146)

it

Thus,
is clear that persons who have a legitimate
interest may lodge a complaint with the Commission
about supposed infringements of Article 85 of the Treaty.
Bearing in mind that the Court of Justice has held that
the complainant is not entitled to request the Commission
to reach a final decision whether there is an infringement
or not, the procedure following a complaint can roughly
be summed up like this:

investigations, the Commission finds the
If, after initial
complaint justified and the undertaking concerned is not
disposed to resolve the matter, the Commission may start
a formal
infringement procedure, which involves strict
observance of the rights of defence of the undertaking
concerned.

If, after initial
the complaint unjustified,

investigations, the Commission considers
is informed
the complainant

Thus,
in summary, the Commission has to act upon a
complaint lodged by a person having a legitimate interest.
It may find that the complaint shall be dismissed on the
grounds that it lacks sufficient (cid:145)Community interest(cid:146) and
shall then inform the complainant in a so-called Article 6
letter. This letter puts to an end a possible failure to act
submit
on the
observations on the Article 6 letter, maintaining the
complaint. If the Commission persists in its view that the
complaint lacks (cid:145)Community interest(cid:146), it shall adopt a final
stand to that effect. When assessing the (cid:145)Community
interest(cid:146), the Commission shall act within the limits of its
legal authority. The Commission’s final stand may be
challenged by the complainant.

complainant may

complaint. The

6. Hereafter, Mr R.’s complaint could be assessed.

7.

It
is common ground that over some years, Mr R.
brought suspected infringements to the Commission’s
the Commission considered
attention.

It appeared that

(1) See judgment of the Court of Justice of 18 March 1997 in Case

C-282/95 P, Guerin Automobiles, [1997] ECR I-1503.

(2) See among others judgment of the Court of Justice of 18 October
1979 in Case 125/78, GEMA v Commission [1979] ECR 3173.
(3) See judgment of the Court of First Instance of 18 September 1992

in Case T-24/90, Automec II, [1992] ECR II-2223.

C 300/40

EN

Official Journal of the European Communities

18.10.1999

that Mr R. qualified as a person with a legitimate interest
in lodging complaints within the meaning of Article 3(2)
of Regulation No 17.

It appeared that one of the alleged infringements was
resolved pursuant to the Commission’s intervention and
that the other ones were investigated.

that

task implies

the European citizens. This
the
Ombudsman should also help secure the position of
citizens by promoting good administrative practices and
encourage administrative authorities to seek solutions that
will
improve their relations with citizens. Against that
background, the European Ombudsman shall make the
following suggestions:

8. During the investigations, the Commission addressed the
abovementioned letter of 1996 to Mr R.,
in which it
referred to cases of personal interest. This letter appeared
to be in line with the Commission’s general policy as it is
among others described in the abovementioned quote
from its annual report on competition policy, which in
turn rests upon the case-law of the Community Courts.
The
constitutes maladministration did
therefore not appear warranted.

claim that

it

9.

10.

The investigations initiated in some of Mr R.’s complaints
were still on-going. For the time being, there were no
elements at hand indicating that the Commission should
in
not be investigating these complaints with due care,
accordance with principles of good administration.

represent

In four of the files opened by the Commission pursuant
to Mr R.’s complaints, the investigations initiated led the
conclusion that his
Commission to the provisional
complaints did not
sufficient Community
interest, and it
informed him correspondingly in the
so-called Article 6 letter of 16 December 1997. As stated
above, it follows from the case-law of the Court that such
a letter puts an end to a possible failure to act on a
complaint.
to be seen which final
conclusion the Commission was going to reach in due
course, after having studied the complainant’s extensive
observations. Under these circumstances,
it would not
have been appropriate for the Ombudsman to enter into
an assessment of the merits of the letter. However, the
letter led the Ombudsman to formulate below further
remarks to the attention of the Commission.

remained still

It

justified to claim that

11. Thus, as things stood, the Ombudsman found that it was
the Commission had been
not
passive or
taken an inappropriate course of action.
Although Mr R. may have wanted the Commission to
deploy more resources to this matter, which was of high
concern to him, there appeared to be no grounds for the
claim that the Commission had been inactive or taken an
inappropriate course of action.

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the European Commission. The Ombudsman therefore
closed the case.

inquiries

2. Without prejudice to the non-binding nature of

the
so-called Article 6 letter, the Commission could on its
own initiative seek to give comprehensive and adequate
reasons for its intention to close the file on a complaint
in the
citizen to fully
enabling
comprehend the position of the Commission and to lodge
to be in
adequate observations. This would appear
accordance with principles of good administration.

letter,

thus

the

3.

Furthermore, in matters which may be of general interest,
the Commission could take account of
that
European citizens may only have limited time and
resources for bringing court proceedings in defence of
their rights, and this even more when proceedings would
have to be brought in another Member State than the one
where the citizen lives.

the fact

SELECTION OF CANDIDATES FOR A TRAINEESHIP

Decision on complaint 846/29.8.96/AISR/ES/JMA against
European Commission

the

The complaint

In August 1996, Ms S. made a complaint to the Ombudsman
concerning the alleged failure of the Commission to reply to
her letters.

Not having been selected after a first application in 1995, Ms
S. applied again in March 1996 for a training period with the
Commission. In spite of her high academic and professional
the European
qualifications, mostly related to the work of
Union, Ms S.’s application was excluded at the first stage of the
selection procedure. She wrote to the Commission in May and
July 1996 asking both for the reasons for her exclusion at the
first stage and for information about the general criteria used
in the selection procedure.

Since Ms S. received no reply to her letters, she lodged a
formal complaint with the Ombudsman.

The inquiry

Further remarks

The Commission’s opinion

1.

The European Ombudsman was created among others to
enhance relations between the European institutions and

The complaint was forwarded to the Commission.
In its
opinion, the Commission firstly apologised for the failure to

18.10.1999

EN

Official Journal of the European Communities

C 300/41

reply to Ms S.’s letters. It also stated that the letter of July
1996 had not been received by the Training Office.

taken by the institution. There was no reply to this letter.

According to the Commission, 936 applications from Spanish
candidates had been received by the Commission for the
training period beginning in October 1996. After the first
stage of the procedure, 157 of them had been included in the
pre-selection list ((cid:145)Blue Book(cid:146)).

The Commission stated that all
the applications had been
examined on the basis of objective criteria laid down in the
applicable rules.

The Commission agreed that Ms S.’s qualifications were
extremely good and equivalent to those of candidates who had
been selected. However, no candidate had the right to obtain a
traineeship and because of the high number of applicants, it
was unavoidable that some very good candidates could not be
chosen.

The Commission stated that in order to minimise the exclusion
of very valuable candidates for traineeships,
it had recently
introduced a more rigorous and systematic procedure for
checking applications.

The complainant’s observations

In her observations, Ms S. pointed out that the system adopted
by the Commission for the selection procedure of candidates
was very unclear. The complainant was still unsatisfied with
the Commission’s
too
general.

in her opinion, was

reply which,

Further inquiries

the complaint were not
Since some important aspects of
the
sufficiently dealt with in the Commission’s opinion,
the new selection
Ombudsman requested further details of
procedure. Moreover, in order to review the correctness of the
selection procedure
in which Ms S. had
trainees
participated, the Ombudsman requested some further elements,
such as the applications of the selected Spanish candidates.

for

In reply,
the Commission explained that the new selection
procedure involved the creation of pre-selection groups of
Commission officials for each nationality. These groups were a
mixture of Commission staff with experience in personnel and
recruitment matters, as well as recently recruited civil servants.
Their task is to screen applications on the basis of the criteria
laid down in the applicable rules, and the preferences indicated
by the candidates.

The Ombudsman forwarded the documents submitted by the
Commission related to the new selection process
to the
complainant with an invitation to comment on the initiatives

The Commission’s reply also included a number of confidential
documents to be inspected by the Ombudsman, namely the
applications of the candidates chosen in the October 1996
training period. These documents had been used by the
Commission as the basis for its final selection.

The Decision

(Decision of

On the basis of Articles 15 and 16 of the rules governing
in-service training with the Commission of
the European
the Commission of 16 March
Communities
1976), applicants are to be selected on the basis of
the
qualifications obtained during their studies, provided that an
appropriate geographical balance is maintained. Priority in the
selection process is to be given to applicants who have
undertaken studies in, or have some professional knowledge
of, European integration.

the nature of

Because of
the
appointing authority enjoys a margin of discretion. In using its
discretion, the Commission has to consider the merits of the
candidates as set out in the above rules.

selection procedure,

this

the exercise of

the Commission’s
In order to ensure that
discretion in this process had followed principles of good
administration, the Ombudsman inspected the applications of
the successful Spanish candidates
the October 1996
training period. In view of the high professional experience
the selected candidates,
and good qualifications of all
the
Ombudsman considered that
there was no instance of
maladministration.

for

As regards the general criteria employed by the Commission
services for the vetting of candidates, the Ombudsman noted
that
the institution had implemented a new procedure to
ensure a more efficient and objective selection.

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

FRAUD INVOLVING THE EUROPEAN SOCIAL FUND: ALLEGED
FAILURE TO ACT BY UCLAF

Decision
against the European Commission

on

complaint 943/14.10.96/Open

Line/GR/BB/OV

The complaint

In October 1996, Mr I. complained to the Ombudsman against
the Commission’s anti-fraud unit UCLAF, alleging lack or
refusal of information relating to allegations of fraud in the
administration of European Social Fund (ESF) programmes in
Greece. Mr I. complained on behalf of a Greek initiative group
which has its seat in Athens.

C 300/42

EN

Official Journal of the European Communities

18.10.1999

three

letters

to the UCLAF Directorate

Between September 1995 and June 1996 the complainant
alleging
wrote
irregularities in the management of ESF resources in Greece
from between 1994 to 1996. He asked for immediate action
by the Community authorities. In reply to his first letter, he
received a standard reply from the UCLAF Directorate,
thanking him for his interest and stating in general terms that
investigations would be carried out.

received no reply. Mr

Mr I. wrote a second letter to UCLAF providing additional
detailed information. This
I.
letter
therefore sent a third letter to UCLAF in which he repeated the
information in the second letter and added new information
In reply to this third
concerning the alleged irregularities.
letter, the complainant received a new standard letter from the
UCLAF Directorate dated 7 August 1996 stating that it was
investigating the
appropriate
measures.

and would take

case

the

to the Ombudsman, Mr

In his complaint
I. asked the
Ombudsman to put an end to the alleged mismanagement of
ESF activities in Greece. He also complained that his letters had
not received an adequate response.

with, as a result,
certifications of
(KEK) and a demand to reform the Greek certification system.

the Greek centres for professional

rejection of

totality of

the
training

the

the

it had not been inactive further

On basis of the above information the Commission concluded
that
to the information
received from the complainant, but that the mission and the
tasks of the UCLAF Directorate did not permit a disclosure of
details of its activities.

The complainant’s observations

the

stated

complainant

In his observations,
the
Commission had not taken into account all his allegations and
that its conclusions were incomplete. More particularly, the
complainant observed that the audit carried out by the UCLAF
Directorate had failed to examine all the cases for which he
had made allegations. He enclosed a memorandum concerning
all his allegations.

that

The inquiry

The Commission’s opinion

The Decision

1.

Request to the Ombudsman to put an end to the
alleged mismanagement of ESF funds

receipt had been sent

The complaint was forwarded to the Commission.
In its
opinion, the Commission first observed that a first and later a
second acknowledgment
to the
the information received from the
complainant and that
complainant had immediately been examined within the
UCLAF Directorate. The Commission further stated that,
in
November 1995,
its services asked the Greek authorities for
information concerning the ESF projects in which irregularities
had been alleged. The Greek authorities provided this
information in March 1996.

On the basis of this information, the Commission carried out
an on-the-spot investigation from 29 to 31 October 1996,
which also took account of
information
forwarded by the complainant. A visit to one of organisations
named by the complainant was organised in order to evaluate
the role of this body in the management and the follow-up of
ESF projects and to check the allegations made by the
complainant.

the additional

The investigation revealed some non-eligible expenditures for
the projects checked. The national authorities agreed with the
results of this investigation and promised to proceed to the
necessary corrections and to extend their control to all the
programmes of the beneficiary concerned.

interests of

1.1. The responsibility to counter fraud affecting the financial
interests of
the Community falls primarily to the
Member States, which, according to Article 209a of the
EC Treaty, shall take the same measures to counter fraud
affecting the financial
the Community as
they take to counter fraud affecting their own financial
interests. This responsibility of
the Member States is
shared with the Commission in the framework of its
general task of ensuring that the Community budget is
properly implemented. As regards more particularly the
operations
the
the
responsibilities of both the Member States and the
Commission with regard to the financial control are set
out
in Article 23 of Council Regulation (EEC) No
2082/93 (1).

financed by

Structural

Funds,

all

revenue has

1.2. The final financial control of operations financed by the
Structural Funds falls to the Court of Auditors which,
according to Article 188c(2) of the EC Treaty, examines
all
whether
expenditure of the Community has been incurred in a
lawful and regular manner and whether the financial
management has been sound.
In this context, Article
188c(3) of
the EC Treaty particularly empowers the
Court of Auditors to carry out audits on the spot in the
Member States. According to Article 188c(4) the Court

been received

and

The Commission further observed that its services carried out
a series of controls in Greece during the years 1995 to 1996

(1) Council Regulation (EEC) No 2082/93 (OJ L 193, 31.7.1993, p.

20).

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Official Journal of the European Communities

C 300/43

of Auditors may also, at any time, submit observations,
particularly in the form of special reports, on specific
questions.

2.4.

1.3. The EC Treaty empowers the European Ombudsman to
inquire into possible instances of maladministration only
in the activities of Community institutions and bodies.
The Ombudsman has no mandate to inquire into
possible instances of maladministration by national
authorities, such as the Greek public and private bodies
involved in the present case.

1.4.

regards

the above reasons, as
complainant

the request of
For
alleged
the
mismanagement
the
Ombudsman has no power to inquire into a possible
instance of maladministration at the national level.

an end to the
funds

to put
ESF
of

in Greece,

2.

The alleged failure of adequate response from the
UCLAF Directorate

3.1.

2.1. The complainant sent three letters to UCLAF between
September 1995 and June 1996: the first and third letter
were acknowledged by letters thanking the complainant
for his
that
investigations were going on and that appropriate
measures would be taken. The complainant considered
that his letters had not received an adequate response.

interest and stating in general

terms

2.2. The Commission observed that a first acknowledgment
receipt had been sent for the letter dated 6 September
1995 and a second acknowledgment receipt for the two
other letters. It also indicated that, upon receipt of the
allegations, the UCLAF Directorate immediately started
information received from the
to investigate
the Commission concluded that the
complainant. But
mission and the tasks of the UCLAF Directorate did not
permit a disclosure of
information concerning the
actions it had undertaken.

the

is

covered

Structural

2.3. The Ombudsman noted that the information which the
investigations
Commission obtained in the context of
financed by
into fraud with regard to operations
by professional
Funds
the
confidentiality. Reference can be made, in particular, to
Article 10 of the UCLAF Regulation (1), which deals with
the exchange of information between the Member States
and the Commission. This provision foresees
that
take all
Member States and the Commission shall
necessary precautions to ensure that
the information
which they exchange remains confidential. Article 10(2)
stipulates that
to
persons other than those in the Member States or within
the Community institutions whose duties require that
they have access to it.

this information may not be sent

(1) Commission Regulation (EC) No 1681/94 (OJ L 178, 12.7.1994,

p. 43).

to the

complainant, because of

It appeared from the above provision that the UCLAF
Directorate was entitled not to disclose the results of its
investigations
the
requirements of its mission and tasks. It appeared to the
Ombudsman that providing information to third parties
about ongoing Commission investigations into alleged
fraud in a Member State and the results thereof might
jeopardise
the UCLAF
Directorate.

investigations

ongoing

of

2.5.

For those reasons, the fact that the UCLAF Directorate,
in its response to the complainant,
informed only in
general terms about the ongoing investigations and gave
into the alleged
no details concerning its
mismanagement of
the funds did not constitute an
instance of maladministration.

inquiries

3.

The alleged failure of UCLAF to act on the
complainant’s allegations

It appeared from the information presented in the
Commission’s opinion that, upon receipt of
the
allegations of mismanagement of ESF funds contained in
the complainant’s first letter, UCLAF immediately started
It also appeared that
to examine those allegations.
UCLAF investigated the matter and carried out an on the
In
investigation and a series of other controls.
spot
observations
the
the Commission’s
complainant claimed that the audit carried out by the
UCLAF Directorate had been incomplete and had failed
to examine all the allegations.

opinion,

on

3.2. The Ombudsman’s

services

contacted

new allegations

of mismanagement

the UCLAF
Directorate and were informed that the complainant had
sent
be
investigated, which were currently being dealt with by
UCLAF. In this context, the Ombudsman also sent to the
UCLAF Directorate a copy of the memorandum which
the complainant had attached to his observations. On
the basis of the above information, there appeared to be
no evidence of an instance of maladministration in the
way that UCLAF had dealt with the complainant’s
allegations.

to

3.3. The Ombudsman however wished to draw the attention
of the complainant to the fact that the final financial
control of
the operations financed by the Structural
Funds would fall within the competence of the Court of
Auditors. According to Article 188c(2) of the EC Treaty,
the Court of Auditors examines whether all revenue has
been received and all expenditure of the Community has
been incurred in a lawful and regular manner and
whether the financial management has been sound.

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

C 300/44

EN

Official Journal of the European Communities

18.10.1999

TENDER PROCEDURE

Decision on complaint 1040/21.11.96/Hydroplan/D/VK against the
European Commission

procedures the Commission is not obliged to offer a contract
at the end of the tender procedure. The Commission is neither
obliged to reimburse unsuccessful participants in the procedure
when it decides not to offer any contracts. (Annex III, No 7).

The complaint

The complainant’s observations

On 18 November 1996, Mr F. made a complaint
to the
European Ombudsman concerning a call for tender for service
contracts of the Commission (94/C 173/17) in which Mr F.
had applied for participation. This call for service contracts
included studies, consultancy work and technical assistance to
be carried out mainly in non-member countries.

On 29 March 1995, Mr F. received an invitation to participate
in a restricted tender. He sent an offer to the Commission, for
which he received an acknowledgement on 15 May 1995. Mr
F.
the elaboration of his offer had involved
considerable costs as well as extensive cooperation with no less
than 13 companies in eight Member States.

stated that

In summary, the complainant made the following main points:

the sudden interruption of

The Commission is not obliged to award contracts. In view of
the
careful public spending,
procedure does however not seem logical. There were 157
bidders of 1 570 enterprises and 16 560 experts involved. The
interruption after the assessment of the bids appeared to cause
avoidable economic damage. The action of the selection board
became even less understandable as the Commission had
afterwards decided to offer contracts in a direct negotiation
procedure.

By letter of 15 February 1996, Mr F. was informed that the
selection procedure had been unfruitful, but the standard letter
did not give any reasons for this.

The Decision

On 26 August 1996, Mr F. asked DG I of the Commission for
the reasons for the closure of the procedure. In its reply of 28
October 1996, the Commission stated that the procedure was
closed because none of the bids complied with the tender
requirements.

Mr F. complained to the Ombudsman that:

(i)

reasons which he was

the
insufficient;

eventually

given were

(ii) his expenses should be reimbursed by the Commission.

The inquiry

The Commission’s opinion

In relation to the relevant points, the Commission stated the
following:

The complainant was informed on 15 February 1996 that the
selection board had examined all offers received and that it
it was
decided
had
unsuccessful.

the procedure because

to close

1.

It is good administrative behaviour to inform the tenderers
about the procedure within an appropriate time limit. On
15 February 1996, all tenderers were informed that the
selection procedure had been unfruitful and therefore
then contacted the relevant
would be closed. Mr F.
Commission services by telephone in order to receive
further information on the matter. He stated that
the
Commission had failed to provide him with an appropriate
reply.

for

the

the

about

In his letter of 26 August 1996, Mr F. requested to be fully
closure. The
reasons
informed
Commission replied on 28 October 1996 that
the
procedure was closed and declared fruitless because none
of the bids complied with the tender requirements. The
letter also emphasised that a written notification had been
the
sent
Commission had appropriately replied to Mr F.’s written
request. From the information given to the Ombudsman, it
seemed that
the Commission had complied with the
principles of good administrative behaviour by notifying
the tenderers and by explaining the reasons to those who
requested it in writing.

It appeared therefore,

to all bidders.

that

2. From the information given to the Ombudsman,

it
appeared that the Commission was neither obliged to offer
contracts nor did it have to reimburse the unsuccessful
participants.

Annex II, Article 8 of the description of the services provides
that according to the provisions for tenders in non-public

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the European Commission. The Ombudsman therefore
decided to close the case.

18.10.1999

EN

Official Journal of the European Communities

C 300/45

FINANCIAL SUPPORT TO SPANISH CUSTOM AGENTS AFTER
ENTRY INTO FORCE OF THE INTERNAL MARKET

(b) actions from the Regional Development Funds,

in

particular Interreg;

Decision on complaint 1048/21.11.96/FPR/ES/JMA against
European Commission

the

(c) other initiatives contained in Regulation (EEC) No
3904/92, with a budget of ECU 30 million, of which
ECU 3 516 991 was allocated to Spain.

The complaint

In November 1996, Mr P. complained to the Ombudsman
concerning the implementation by the Commission of Council
Regulation (EEC) No 3904/92 (1) on measures to adapt the
profession of customs agent to the internal market.

Mr P.’s firm of customs agents suffered large losses as a result
of the entry into force of the internal market on 1 January
1993 and the consequent removal of border controls. He
therefore submitted an application to the Spanish authorities
responsible for the vetting and selection of projects to be
funded in the framework of Regulation (EEC) No 3904/92.

course of

the proceedings, Mr

In the
P. had some
correspondence with members of the Spanish Parliament and
with the cabinet of
the then Spanish Commissioner, Mr
Matutes. A letter from a member of Mr Matutes’ Cabinet to a
Spanish parliamentarian, dated 24 February 1994,
indicated
that Mr P.’s project was likely to obtain a grant of ECU
100 000. Otherwise,
the
the
information being forwarded to him by the Commission was
generally unclear and insufficient.

complainant’s

view,

in

He alleged that application of Regulation (EEC) No 3904/92 by
the Commission had been deficient and that this constituted an
instance of maladministration.

The inquiry

The Commission’s opinion

complaint was

In
the Commission’s opinion made the following

forwarded to the Commission.

The
summary,
points:

(i) Whilst

the internal market

recognising the negative consequences of

the
completion of
for customs and
commission agents, of whom more than 25 % had lost
their jobs after 1993, the Commission considered that the
restructuring of this sector was a responsibility of the
Member States,
in accordance with the principle of
subsidiarity. Because of the importance of the problem,
however, the Commission decided to support the efforts
of Member States through accompanying measures:

(a)

those financed through the European Social Fund;

(1) OJ L 394, 31.12.1992, p. 1.

(ii)

Proposals
to assist Spanish enterprises and services
affected by the entry into force of the internal market had
to be submitted by the Spanish agency responsible for the
implementation of Regulation (EEC) No 3904/92, namely
the Internal Revenue Service ((cid:145)Agencia Tributaria(cid:146)).

(iii) Following

the

technical

evaluation of 82 Spanish
proposals by a committee of the Agencia Tributaria, 20
projects were accepted. The evaluation was carried out in
full independence by the evaluators, and was based on the
objective criteria laid down in the Regulation and in the
relevant budgetary provisions.

(iv) By fax of 16 December 1994,

the Agencia Tributaria
information from the complainant
requested further
regarding his project. No further information was received
and the project was not selected because its definition was
vague and imprecise and its cost amounted to the whole
Spanish allocation of funds under Regulation (EEC) No
3904/92.

(v) As

for

cabinet

could have

of
correspondence with the
the
been a
there
Commissioner Matutes,
misunderstanding in the letter of 24 February 1994
between two firms with identical names ((cid:145)C.(cid:146)), one located
in Spain and the other in France. The latter had obtained
some Community funding. The misunderstanding was
created by the fact that the President and Director-General
of the French company (cid:145)C.(cid:146) was also a business partner of
the complainant. The Commission had written to Mr P.
apologising for the confusion.

(vi) The Commission denied that there had been deficiencies
in the application of Regulation (EEC) No 3904/92, which
had been monitored by both its own financial services
and the Court of Auditors.

The complainant’s observations

In summary, Mr P. made the following observations:

(i) Although Regulation (EEC) No 3904/92 was published on
31 December 1992, the Commission communicated with
him for the first time only 22 days before the deadline of
31 March 1993 for the presentation of proposals.

(ii) As regards the failure to reply to the request for further
information
complainant
indicated that he did not understand the aim of such a
request since a decision had been taken in February 1994
and his project had already been excluded.

of December

1994,

the

C 300/46

EN

Official Journal of the European Communities

18.10.1999

(iii) As

for

the sum requested, when he submitted his
application he had no information about the total amount
of European Community funds to be granted to Spain
within this particular programme.

(iv) The Commission should have disclosed the name of the

customs agents whose projects had been selected.

The Decision

1.

Allegedly deficient measures adopted by the
Commission

situation of

1.1. The allegedly deficient response by the Community to
and commission agents
customs
the
following the entry into force of the internal market, had
already been the subject-matter of several complaints
addressed to the European Ombudsman (1).

1.2. Articles 7b and 7c of the Treaty required a number of
actions to be taken by the Commission and the Council
to ensure a balanced progress of all sectors affected by
the entry into force of the internal market. Although the
Commission considered that assistance for the sector was
the Member States,
primarily a responsibility of
it
undertook several
contained in a 1992
initiatives
vade-mecum on the restructuring of the customs sector.
Specific measures of assistance were also contained in
Regulation (EEC) No 3904/92.

1.3.

It is not the task of the Ombudsman to examine the
merits of legislative acts or legislative proposals of the
Communities. This type of judgment goes beyond the
boundaries of maladministration, and instead concerns
considerations of a political nature. In this context,
it
the European Parliament has
should be recalled that
adopted several very critical resolutions on this matter,
such as those of 17 September and 20 November 1992
as well as the Jackson Report of 4 November 1992.

2.

Project selection

2.1. The complainant criticised the selection of the projects
made jointly by the Commission and the Spanish
Agencia Tributaria, and the exclusion of his project from
the 20 finally selected. In his view, the time period for
the submission of proposals had been unduly short; and
the request for further information at a late stage of the
selection procedure had been inappropriate.

2.2. Although the complainant only received information
about the possibilities of Community assistance on 8
March 1993, the contents of the programme and its

time schedule were set out
in Regulation (EEC) No
3904/92 which was published in the Official Journal of
the European Communities of 31 December 1992. A
reasonable amount of time had therefore been given for
the presentation
there
appeared to be no grounds to justify the claim of an
unduly short deadline.

of projects. Consequently,

2.3. The Commission

the

justified

exclusion

the
complainant’s project on the grounds of its vagueness
and its excessive financial request. The complainant had
not responded to a request for further information since
he believed that the decision had already been taken in
February 1994.

of

2.4.

2.5.

In assessing the relevant factors to be taken into account
for
the purpose of deciding to award a contract
following an invitation to third parties, Community
institutions enjoy a large degree of discretion (2). That
discretion cannot justify, however, any misuse of powers
or
selection
procedure (3).

and manifest

in the

serious

errors

From the information available to the Ombudsman,
there appeared to be no evidence to suggest that the
Commission did not act within the limits of its legal
authority in adopting its decision on the applications for
assistance to be funded under Regulation (EEC) No
3904/92.
of
maladministration in relation to this aspect of the case.

There was

therefore

evidence

no

3.

Allegedly misleading information from the
Commission’s services

3.1.

It appeared that the Cabinet of former Commissioner
the complainant’s
Matutes indicated in a letter
grant. This
project would
communication could have been misleading for
the
complainant.

that
a Community

receive

3.2. The Commission explained that there could have been a
misunderstanding between two firms with the same
name. The Commission sent to the complainant a letter
in which it apologised. Since the Commission recognised
potential
for
apologised
the mistake
the
misunderstanding,
there was no
appeared that
evidence of maladministration in relation to this aspect
of the case.

and

it

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

(2) Case T-19/95 Adia Interim SA v Commission [1996] ECR II-321,

paragraph 49.

(1) Complaints 189/18.10.95/SP/GR/KT and 262/27.11.95/APF/PO/

(3) Case 56/77 Agence EuropØenne d’Interims v Commission [1978]

EF-po.

ECR 2215, paragraph 20.

18.10.1999

EN

Official Journal of the European Communities

C 300/47

GERMAN STATE AID FOR RENEWABLE ENERGIES

alteration of the Commission Decision which may only
be made by way of another Commission decision.

Decision on joined complaints 1086/11.12.96/HK/D/VK, 1092/
11.12.96/JS/D/VK, 1095/12.12.96/FS/D/VK, 1097/12.12.96/
KS/D/VK, 1104/16.12.96/FP/D/VK, 1112/31.12.96/SB/D/VK,
1134/
1113/31.12.96/GS/D/VK,
31.12.96/HS/D/VK, 1135/31.12.96/AD/D/VK, 1139/31.12.96/
MS/D/VK, 1/97/VK, 4/97/VK, 9/97/VK, 12/97/VK, 13/97/VK,
28/97/VK, 34/97/VK, 43/97/VK, 58/97/VK, 72/97/VK, 88/97/
VK, 161/97/VK against the European Commission

1124/31.12.96/KPS/D/VK,

The complaints

Between December 1996 and January 1997 the Ombudsman
received a total of 23 complaints from German citizens,
concerning a letter which Commissioner Karel Van Miert had
addressed to the German Minister of Economic Affairs, Mr
the
Rexrodt, concerning the German law in favour of
production of renewable energies (Stromeinspeisegesetz). In order
to deal with the complaints as effectively and promptly as
possible, the Ombudsman decided to treat them jointly.

The Stromeinspeisegesetz was also the subject of petitions to the
European Parliament. The Ombudsman does not usually deal
with a matter pending before the Committee on Petitions of
the
the European Parliament unless, with the consent of
petitioner, that committee transfers it to the Ombudsman to
be dealt with as a complaint.
the
Ombudsman also received many complaints from citizens who
had not addressed petitions to the Parliament.

In this case, however,

The Stromeinspeisegesetz entered into force on 1 January 1991.
It imposes on electricity supply companies an obligation to
purchase electricity generated from renewable energy sources
and to pay a guaranteed minimum price depending on the
nature of
the law
the renewable source. Article 3(2) of
prescribes the minimum price of electricity generated from
wind power to be 90 % of the average revenue per kWh of
electricity which the supply companies generated by sale of
electricity in the penultimate calendar year.

(ii) Commissioner Van Miert had wrongly assessed the legal
and economic situation of wind energy producers in
Germany because the Commissioner had apparently based
his position only on data and figures provided by the
German electricity suppliers, without verifying whether
these figures were correct. According to the complainants,
the Commissioner’s proposal would be
the effects of
disastrous for the wind energy producers, as the reduction
of the remuneration level would jeopardise wind energy
plants and with them, the current employment situation.
Research in this field would also suffer and this would
the
consequently
environmental and technical developments. Competition
in fact would be distorted and a monopolistic structure
would arise.

negative

impact

have

on

a

The inquiry

The Commission’s opinion

The complaints were forwarded to the Commission.
In
summary the Commission’s opinion made the following
points:

the

energy.

support

for wind

(i) As from July 1995 the Commission started receiving
from German electricity suppliers
several complaints
concerning
The
complainants claimed that the guaranteed price for wind
energy was no longer justified and that they would face
the guaranteed price for wind
considerable losses,
the
energy remained the same, and if
German L(cid:228)nder
to extend wind power capacity up to
4 000 MW in the year 2000 were to be pursued. The
Commission considered it necessary to reassess
the
situation after it had received these complaints.

the plans of

if

The German authorities notified the Stromeinspeisegesetz to the
Commission in 1990 as a State aid, in accordance with Article
93(3) of the EC Teaty. The Commission decided that the law
was compatible with the common market under Article
92(3)(c).

(ii)

On 25 October 1996, Commissioner Van Miert wrote to
Minister Rexrodt proposing the reduction of
the minimum
price for wind power energy from 90 % per kWh to 75 % per
kWh.

Taking the complaints sent to the Ombudsman as a whole,
there were in substance two allegations:

(iii)

(i)

Commissioner Van Miert was not entitled to send the
letter in question, because the Stromeinspeisegesetz had
been approved by the Commission in a binding Decision
under Article 92(3)(c) of the EC Treaty. The complainants
considered that the contents of the letter amounted to an

to the
received

amendments
had
among

In November 1995 the Commission asked the German
Government
for its comments on the matter. After a
hearing in the German Parliament to discuss whether or
the
not
all
Commission
participants,
the
governments of
the German L(cid:228)nder, of energy supply
companies and of associations in favour of renewable
In addition to this, several meetings with all
energies.
concerned parties,
including representatives of wind
energy producers, had taken place.

law were necessary,
of
of

comments
them representatives

the

It appeared that both the real and the legal conditions
had changed between 1990, the time of approval of the
Stromeinspeisegesetz by the Commission, and October
1996. The support mechanism for wind energy in the
Stromeinspeisegesetz had led to a very considerable increase
of wind energy production, particularly in the coastal
regions of Germany. Since
the
Stromeinspeisegesetz the amount of plants as well as their
capacity had considerably increased, thus raising costs for

enactment of

the

C 300/48

EN

Official Journal of the European Communities

18.10.1999

energy suppliers. Another factor for the Commission’s
the technology for new wind
reassessment was
power plants had been improved. New plants were
therefore more efficient and the production of wind
power was less costly.

that

(iv)

It was against this background that Commissioner Van
Miert sent a letter to Minister Rexrodt asking him to
examine whether the support mechanism in favour of
wind energy in the Stromeinspeisegesetz should be amended
in a way which would, on the one hand, consider the still
existing need of wind energy producers
to receive
support, but on the other hand be less trade distortive.
Among other things, he proposed the reduction of the
remuneration for wind power from 90 % per kWh to
75 % per kWh as a relatively simple and quick change of
the present situation.

(v) The

the German Government.

in question did not have

any
legal
letter
consequences for
It was a
non-binding recommendation to modify the law. It was
considered that a non-legal action would be the best
solution since it would allow the German Government to
solve the problem of competition internally. The letter
was fully within the measures that the Commission may
take pursuant to Article 93 of the EC Treaty.

(vi) The data concerning the number of wind power stations,
their capacity and their production used by DG IV were
based on the information provided to the Commission by
the German Government. Furthermore, the Commission
received information from a hearing held in the German
Bundestag with representatives from both sides, the wind
energy producers as well as the main energy suppliers. In
addition to this, several extra meetings with all parties
concerned were held. The Commission took the opinions
of all parties into account.

The complainants’ observations

Taking the observations sent to the Ombudsman as a whole,
the complaints were maintained. The complainants expressed
dissatisfaction with the Commission’s observations.

The Decision

1.

The complainants’ first claim

1.1. The complainants’ first claim, in substance, was that the
Commission had infringed the Treaty by using the
wrong procedure. According to the complainants, the
to the German Government amounted to an
letter
the Commission’s Decision, made under
alteration of
Article
the
92(3)(c)
of
Stromeinspeisegesetz
is compatible with the common
market. They claimed that such an alteration could only
validly be made by way of a further Commission
Decision.

Treaty,

that

the

EC

1.2. The provisions of the EC Treaty concerning State aids
require a Member State which proposes to grant a new
aid, to give prior notification to the Commission, which
then makes a decision as to whether it considers the aid
common market. The
to be
this
Stromeinspeisegesetz
procedure in 1990 and thus became an existing system
of aid.

compatible with the

approval

received

through

1.3. Article 93 of the EC Treaty provides two procedures
through which the Commission may seek modification
of an existing scheme of aid. The first procedure is by
proposing measures to the Member State concerned
under Article 93(1). Such proposals have no binding
force. The second procedure is to address a binding
decision to the Member State concerned, requiring it to
abolish or alter the aid,
following the procedure of
Article 93(2).

1.4. There is no legal basis for considering that the Article
93(1) procedure cannot be used in cases where the
Commission has previously approved aid under Article
92(3).

1.5. The letter in question did not purport to be binding on
the
the Member State, nor did it purport
Commission’s
the
1990
Stromeinspeisegesetz. The letter did not therefore appear to
contain any element which exceeded the competence of
the Commission under Article 93(1).

concerning

to alter

decision

1.6. The Ombudsman’s inquiry into the complainants’ first
claim did, therefore, reveal no maladministration.

2.

The complainants’ second claim

2.1. The complainants’ second claim was, in substance, that
the Commission had wrongly assessed the legal and
economic situation of wind energy producers because it
relied on unverified data supplied by the German
electricity industry.

2.2. Article 93(1) does not lay down specific requirements
concerning the Commission’s cooperation with Member
States to keep under review existing systems of aid.
However, as a matter of good administrative practice,
the Commission should base its technical and economic
assessments on accurate information and ensure, when
critical
appropriate,
appraisal of relevant data and that different opinions are
heard.

is opportunity

there

that

for

2.3.

In its opinion the Commission had provided an account
its activities which was not contradicted by the
of
complainants. According to the Commission,
it had
informed the German Government about complaints it
had received concerning the system of aid for wind
energy and had asked for its comments. After a hearing

18.10.1999

EN

Official Journal of the European Communities

C 300/49

in the German Parliament
to discuss whether or not
amendments to the law were necessary, the Commission
had received the comments of all participants, among
them representatives of the governments of the German
L(cid:228)nder, of energy supply companies and of associations
In addition to this,
in favour of renewable energies.
several meetings with all concerned parties,
including
representatives of wind energy producers, had taken
place.

2.4. On the basis of

the above,

it appeared that

the
Commission had taken reasonable steps to ensure that
its technical and economic assessments were based on
accurate information and that there was opportunity for
critical appraisal of
relevant data and that different
opinions were heard. The Ombudsman’s inquiry into the
complainants’ second claim did,
therefore, reveal no
maladministration.

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

DEADLINE FOR THE PRESENTATION OF PROPOSALS IN A CALL
FOR TENDERS

Decision on complaint 1101/16.12.96/CFUI/IT/JMA against
European Commission

the

The complaint

In its complaint, CFUI claimed that the time limit was too
short, and that it appeared that not all the potential tenderers
had received the application forms at the same time.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission explained the different steps involved
in the selection procedure of
for tenders, and its
timetable, as well as the exchanges with the complainant.

this call

As regards the launching of this initiative, since the process
required the agreement of the ESF Committee, the first step
could only be taken after the meeting of the committee at the
end of September 1996. Thereafter, the Commission had to
conclude its internal consultations before any proposal could
appear in the Official Journal of the European Communities. As a
result, the call for tenders was published only on 29 October
1996.

As for the setting of
the deadline for the submissions of
proposals, the Commission stated that because of budgetary
reasons, it was imperative to have the process concluded by
the end of 1996. Because the evaluation of proposals would
take
fixed 30
November 1996 as the deadline.

the Commission services

several weeks,

The Commission also indicated that
for
application forms which it had received from the complainant
was the fax dated 26 November 1996. The Commission also
pointed out that its services had replied expeditiously to this
fax.

the only request

In December 1996, the Association CFUI complained to the
Ombudsman concerning the short deadline for the submission
of proposals in a call for tenders.

The Ombudsman forwarded the Commission’s opinion to the
complainant with an invitation to make observations. No reply
was received.

The Commission published a notice on 29 October 1996 (1)
inviting the presentation of proposals to be funded through
the European Social Fund (ESF) concerning innovatory actions
for the creation of jobs. Submission of applications in 1996
had to be postmarked by 30 November 1996.

Because of
Official
Journal of
November 1996.
application forms from the Commission services (DG V).

the usual delay in the post, CFUI received the
the European Communities only on 15
immediately requested the necessary
It

Since the documents had not arrived by 26 November 1996,
CFUI asked the Commission to send the forms by fax. This
was done on 27 November 1996. However, CFUI was unable
to submit an application to the Commission in due time.

(1) OJ C 323, 29.10.1996, p. 13.

The Decision

the Regulation which
In accordance with Article 102 of
implements the Financial Regulation,
the deadline for the
submission of tenders (cid:145)shall be fixed according to the nature of the
contract and shall be dependent on the length of time necessary for
the preparation of the reply to the invitation to tender(cid:146) (2).

On 29 October 1996, the Commission published a deadline
for the submissions of proposals of 30 November 1996. In its
opinion, the Commission gave several reasons for the short
time
the ESF
Committee at the end of September 1996; the length of the
subsequent internal Commission procedures and the need to

the need to consult

in particular:

limit,

(2) Commission Regulation (Euratom, ECSC, EC) 3418/93 of 9
December 1993 laying down detailed rules for the implementation
of certain provisions of the Financial Regulation of 21 December
1977 (OJ L 315, 16.12.1993, p. 1).

C 300/50

EN

Official Journal of the European Communities

18.10.1999

commit expenditure before the end of 1996. This reasoning
the criteria laid down in the
did not appear to contradict
above Regulation.

The inquiry

The Commission’s opinion

(complaint
The Ombudsman stated in a previous
154/02.10.95/SF/IT) that where a short deadline is established
for the submission of applications, it is a good administrative
practice to consider whether the postal services alone are an
adequate means of communication to inform interested parties.

case

In the context of that case, the Commission had acknowledged
that, in the future, deadlines should be longer and that, if this
was not possible, telefax ought to be used as a complementary
means of communication. This procedure was used in the
present case.

complaint was

forwarded to the Commission.

The
In
summary, the Commission’s opinion stated that it had dealt at
great length with Mr L.’s complaint about the protection of
forests in Italy. It decided to close the file because Regulation
(EEC) No 3529/86 does not provide any specification as to the
equipment
to be used by fire-fighters and the choice of
equipment is therefore a question which falls within the remit
of the Member States.

into this
the Ombudsman’s
On the basis of
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

The complainant’s observations

In his observations, Mr L. maintained his complaint.

PROTECTION AGAINST FOREST FIRES: INTERPRETATION OF
REGULATION (EEC) No 3529/86

The Decision

Decision on complaint 26/97/VK against the European Commission

The complaint

In January 1997, Mr L. complained to the Ombudsman that
the Commission had failed to ensure that Italian authorities
comply with the Regulation on protection of the Community’s
forests against fire (1).

According to the complaint, the Italian authorities have made
contracts with companies to fight forest fires in Calabria. Mr L.
considered the companies’ equipment to be insufficient and
to the Italian authorities, without
complained about
success.

this

He then complained to the Commission, claiming that the
Commission had a duty to ensure the adequacy of
the
equipment of the companies. The Commission replied, that
under the Regulation, it did not have competence as to the
adequacy of equipment. According to the Commission, this
question lies entirely within the competences of the Member
States.

this

background, Mr

Against
the
Ombudsman. He alleged that the Commission had failed to
ensure the application of the Regulation.

complained

to

L.

(1) Council Regulation (EEC) No 3529/86 (OJ L 326, 21.11.1986,

p. 5).

(cid:145)the

and

forest

roads(cid:146)

provision

1. The question raised by the complaint was whether the
Commission’s
interpretation of Regulation (EEC) No
3529/86 was correct. The content of the Regulation is
mainly as follows: According to Article 1, the Regulation is
aimed at setting up a Community scheme for protection
against forest fires. According to Article 2, the scheme
shall mostly concern preventive measures, such as for
instance
(cid:145)the
of
organisation of information campaigns(cid:146). Article 3 provides
that Member States shall inform the Commission of any
programme or project they may have to increase forest
protection. Article 4 describes the role to be played by a
consultative committee on Forest Protection. Articles 5 and
6 concern the Community financial
contribution to
measures involved in the scheme. Articles 7 and 8 provide
that Member States shall designate bodies for the purposes
of the Regulation and adopt the measures necessary to
ensure that Community funding is correctly applied.
Article 9 obliges the Commission to submit an annual
report and Article 10 provides the date of entry into force
of the Regulation. Thus, there appeared to be no provision
concerning
equipment.
the
there appeared to be no element at hand
Therefore,
indicating that
the
Regulation was wrong. However, it must be recalled that
the highest authority on questions of Community law is
the Court of Justice.

the Commission’s

interpretation of

adequacy of

control of

2. On the basis of

complaint,

the Ombudsman’s

into
this
been no
maladministration by the Commission. The Ombudsman
therefore closed the case.

to have

appeared

inquiries

there

18.10.1999

EN

Official Journal of the European Communities

C 300/51

CANCELLATION OF FINANCIAL ASSISTANCE TO A PROJECT

Decision
Commission

on

complaint 120/97/JMA against

the European

the withdrawal of the Spanish partner, since it was unaware of
it. Mr C. claimed that no other changes had been made to the
original proposal.
the Commission could not
cancel its financial contribution, but only reject changes to the
project.

In his view,

The complaint

The Decision

In February 1997, Mr C. complained to the Ombudsman on
behalf of the firm C., concerning the Commission’s decision to
cancel its financial assistance to a project.

firms

The firm C. responded to the Commission’s call for proposals
for projects of a transnational character in December 1995. In
order to qualify, C. set up a transnational partnership including
from different Member States. The
a number of
Commission (DG XXIII) agreed to bear half the total costs of
the project (ECU 159 000). One of the partner firms later
withdrew from the project. The Commission then informed Mr
C. that it had decided to cancel its financial assistance, because
the original
there had been substantial modifications of
proposal.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission stated that the call for proposals was
concerned only with projects of a transnational character. In
August 1996, the Commission had agreed to contribute to the
it had a balanced
firm C.’s project on the basis
participation of Greek, Spanish and Portuguese partners.
In
October 1996, the Commission learnt that there had been
the
fundamental changes in the scope and conditions of
original proposals. In particular, following the withdrawal of
the Spanish partner in July 1996, changes had been made in
the role and financial participation of the remaining partners.

that

the project

After seeking further information from Mr C., the Commission
took the view that the departure of the Spanish partner had
reduced the transnational character of the proposal,
limiting
to the region of Calabria. As a
the scope of
consequence of the substantive changes to the original project
and the failure of the firm to notify them, the Commission
considered that
the contract had not been
respected by the firm C. which had modified unilaterally the
the Commission
its consent. Accordingly,
proposal without
had decided to cancel all
its financial participation in the
project.

the basis of

The complainant’s observations

In his observations, Mr C. claimed that the firm C. had acted
in good faith. It could not have informed the Commission of

According to the case-law of the Court of First Instance, the
obligation to comply with the conditions attached to a
Decision granting Community financial assistance constitutes
is
an essential duty for
therefore a condition for the award of Community aid (1).

the beneficiary. Their

fulfilment

In the present case, the call for proposals stated that:

(cid:145)[(cid:133)] the actions shall be of an innovative and transnational
nature(cid:146).

Following the withdrawal of
transnational aspect of the project was substantially affected.

the Spanish partner,

the

Clause 10 of
established that the:

the Declaration signed by the complainant

(cid:145)beneficiary undertakes
contents, partners, budget,
obtain the authorisation to proceed(cid:146).

to notify any project

(object,
funding (cid:133)) to the Commission to

change

Although the contract was signed in August 1996, changes
involving the partners and their participation in the project
had already taken place in July 1996. Those changes were
communicated to the Commission only three and half months
later and after the institution had requested further information
the
on the implementation of
contractor to communicate those changes promptly to the
Commission and obtain its previous authorisation do not
correspond with the obligations laid down in clause 10 of the
Declaration of the beneficiary.

the project. The failure of

On the basis of the above facts, the Ombudsman considered
that the Commission had acted reasonably when it decided
that the conditions governing its financial participation in the
complainant’s project had not been complied with, and
accordingly cancelled its
the project. There
appeared therefore to have been no maladministration and the
Ombudsman closed the case.

support of

(1) Case T-331/94, IPK-M(cid:252)nchen GmbH v Commission, 15.10.1997,
paragraph 38;
Joined Cases T-551/93, T-231/94, T-232/94,
T-233/94 and T-234/94, Industrias Pesqueras Campos and Others
v Commission [1996] ECR II-247, paragraph 160.

C 300/52

EN

Official Journal of the European Communities

18.10.1999

TARIFF ON DEER MEAT

Decision on complaint 133/97/VK against the European
Commission

The complaint

of

the

In February 1997, Mr R. complained to the Ombudsman on
Farmers
of
behalf
Associations. The complaint concerned Mr R.’s correspondence
with the Commission about the customs tariff applied to deer
meat imported into the European Union.

European Deer

Federation

deer meat

the Commission to recognise

the low rate of
import duty
According to the complaint,
makes
from agricultural production
imported deer meat
comparatively cheap and this competition created difficulties
for European deer farmers. The complainant had therefore
asked
from
agricultural production as domestic animal meat, which would
imply a much higher rate of import duty. The complainant
claimed that deer meat from agricultural production should be
considered as meat from domestic animals, because the deer
are kept like domestic animals as regards food, breeding and
the treatment of the meat. The complainant also claimed that
this would be in line with a decision of the Court of Justice
where it held: (cid:145)The expression (cid:147)game(cid:148) as it appears at subheading
02.04-B of the Common Customs Tariff 1970 is to be interpreted
as applying to animals living in the wild state which are hunted(cid:146) (1).
As the deer in question are not hunted, but brought to the
slaughterhouse like sheep or cattle, the complainant considered
it to be fair that they would be treated for customs purposes
as domestic animals. Thereafter there was an exchange of
correspondence between the complainant and the Commission,
from which it emerged that the Commission did not share the
complainant’s point of view.

Against this background, the complainant complained to the
Ombudsman. He alleged that the Commission had wrongly
interpreted the current provisions on the customs
tariff
applicable to deer meat.

The inquiry

The Commission’s opinion

The Commission assessed the complainant’s grievance which
letters and came to the following
he had stated in several
conclusion: it is necessary to obey the instructions given in the
Common Customs Tariff which states that meat of animals
which are normally hunted (like deer), remains classified as
meat of game, even when such animals have been raised in
captivity (2). This
the
explanations which Commissioner Monti
the
complainant.

line with
to

argumentation

gave

in

is

Furthermore, point 3 of the judgment of the Court of Justice
cited by the complainant states that the expression (cid:145)game(cid:146) in its
ordinary meaning designates those categories of animals living
in the wild and which are hunted. Deer are undoubtedly
included in this description.

it has to be recalled that

Finally,
the protection which is
granted to different agricultural products is principally decided
by political and not administrative action.

The Commission was of
the opinion that, after thorough
assessment, the complainant had been informed correctly and
sufficiently about the matter.

The complainant’s observations

In his observations, the complainant maintained his complaint.

The Decision

The question raised by the complaint was whether
the
Commission had wrongly interpreted the provisions governing
the tariff applicable to deer meat.

is not hunted can be declared as (cid:145)game(cid:146).

The relevant Common Customs Tariff states that deer meat,
It
even when it
appeared therefore that the Commission had rightly assessed
the relevant provisions and that deer meat of animals which
remain in captivity can be imported into the Union as game.
However, it shall be recalled that the Court of Justice is the
highest authority on questions of Community law.

The complaint was forwarded to the Commission.
opinion, the Commission stated in substance the following:

In its

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

(1)

Judgment of 12 December 1973 in Case C-149/73, Otto Witt KG
v Hauptzollamt Hamburg-Ericus [1973] ECR 1587.

(2) OJ C 342, 5.12.1994, p. 23.

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Official Journal of the European Communities

C 300/53

COMMISSION DECISION NOT TO INITIATE INFRINGEMENT OF
THE PROCEEDINGS UNDER ARTICLE 169 OF THE EC TREATY

The complainant’s observations

Decision on complaint 175/97/JMA against the European
Commission

The complaint

In February 1997, Mr D. complained to the Ombudsman on
behalf of his client Mr P., alleging that the Commission had
application of Directive
correct
the
failed
91/533/EEC in Portugal.

ensure

to

Mr P. had been working for the firm (cid:145)Casinos do Algarve(cid:146),
which was taken over by an Administrative Commission set
up by the Portuguese authorities. Following a labour-related
dispute, Mr P. brought a legal action against his employer.
However,
the administrative agency in charge of Casinos
declared in Court that it was not responsible for the firm’s
management. The situation appeared to contravene the criteria
laid down in Directive 91/533/EEC, which regulates
the
employer’s obligation to inform employees of the conditions
applicable to the contract or to the employment relationship.

Mr P. took the case to the Portuguese courts. Since the case
was related to the application of a Community Directive by
the Portuguese authorities, he also sent a complaint and several
letters to the Commission. Mr P. complained that none of his
letters had received a reply from the Commission.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission stated that the first letter from Mr P.
had been registered by its Secretariat-General. On the basis of
the facts as presented in the letter, the Commission concluded
that the Portuguese authorities might not be correctly applying
Directive 91/533/EEC as well
as Directive 77/187/EEC
concerning the safeguarding of employees’ rights in the event
of transfers of undertakings.

In his observations, Mr P. stated that the case was still on
appeal before the Portuguese courts, and thus far from being
interpretation of
settled. There had even been a divergent
Directive 91/533/EEC between the judge who dealt originally
with the case, and the Supreme Court of Portugal.
In the
complainant’s view, since the national authorities had not
respected Community law,
to have
the
intervened. By not using its powers under the Treaty,
Commission had failed to act as the guardian of the Treaty and
had allowed the violation of a European citizen’s rights by a
Member State.

the Commission ought

The Decision

1. Decision not to take up a complaint

Under Article 155 of the Treaty, the Commission’s duty as
the (cid:145)guardian of the Treaty(cid:146) is to ensure that Community
law is applied.

possible

investigates

infringements

In carrying out its duty as guardian of the Treaty, the
Commission
of
Community law which come to its attention as a result of
complaints, or at its own initiative. The investigation may
lead to the sending of a letter of formal notice to the
Member State concerned, which has the opportunity to
submit its observations. If the Commission then considers
that the Member State has failed to fulfill an obligation
under the Treaty, Article 169 provides for it to deliver a
reasoned opinion on the matter.

If the Commission chooses not to pursue an inquiry into
the matter, there must be some reasoning supporting this
course of action. Those reasons should provide the basis
for any potential inquiry by the Ombudsman in order to
ensure that no maladministration has taken place.

the

that

The Commission justified its inaction in Mr P.’s case on the
grounds
complaint was
assessment of
dependent on the interpretation of Portuguese law and that
the facts in dispute were already the object of two legal
proceedings before the national courts.

the

However, the Commission deemed it inappropriate to carry
out an inquiry into the matter, in view of the fact that the
assessment of the case was dependent on the interpretation of
Portuguese law, and also that the facts in dispute were already
the object of two legal proceedings before the national courts.
Nevertheless,
further
Commission
information from the Portuguese authorities in May 1997.

requested

had

the

The Commission also made reference to its discretionary
powers to start infringement proceedings against a Member
State, as recognised by the Court of Justice.

National courts could handle cases involving the incorrect
application of Community law in an expeditious way, and
the preliminary reference procedure of Article 177 allows
for questions of Community law to be referred to the
Court of Justice.

course of

In reviewing the
action chosen by the
Commission, the Ombudsman found that the institution
had acted within the limits of
its legal authority and
therefore that no instance of maladministration had been
established.

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Official Journal of the European Communities

18.10.1999

2. Prompt reply to letters from complainants

The Commission stated in its opinion that Mr P.’s
complaint to the Commission had been registered as such.
the
However, Mr P. was never informed in writing of
registration.

the Ombudsman has

stated in similar cases,

the
As
Commission as a public administration has
the duty
properly to reply to the queries of citizens. By not doing
so in the present case, the Commission had not abided by
principles of good administrative behaviour (1).

The European Ombudsman noted, however,
the
Commission had recognised this failure and apologised to
the complainant. No further remark by the Ombudsman
therefore appeared to be necessary.

that

On the basis of the inquiries of the European Ombudsman
into this complaint, it appeared that the Commission chose
not to take any action against a Member State following
the complaint sent by Mr P., taking into account that the
assessment of
the complaint was dependent on the
interpretation of Portuguese law, and also that the facts in
dispute were already the object of two legal proceedings
In reviewing the course of
before the national courts.
action
European
the
Ombudsman found that the institution had acted within
the limits of its legal authority and therefore no instance of
maladministration was established.

the Commission,

chosen

by

first

letter

In his
the complainant
to the Commission,
explained that his client Mr K., originally a national of Finland,
had been arrested by the Portuguese authorities following an
extradition request from the Finnish authorities. However, in
the course of the legal process, it was revealed that Mr K. had
the Dominican Republic. The
also taken the nationality of
competent Portuguese judicial authorities considered that, by
taking the nationality of the Dominican Republic, Mr K. had
lost his original Finnish nationality, and accordingly applied
the rules concerning third country nationals, rather than those
for European Union citizens. This approach was confirmed by
the Portuguese Supreme Court. The complainant considered
that this legal interpretation breached Article 8 and 8A of the
Treaty. Furthermore he claimed that the Portuguese Supreme
Court had a duty to refer the matter to Court of Justice for a
the
preliminary ruling,
Treaty.

in accordance with Article 177 of

Mr D. therefore asked the Commission to intervene, in its role
of guardian of
the Portuguese
the Treaty,
authorities properly applied Community law.

to ensure that

In his second letter to the Commission of 11 December 1996,
Mr D. provided additional documentation to his complaint.

The inquiry

The Ombudsman therefore closed the case.

The Commission’s opinion

REFUSAL BY A NATIONAL COURT TO REQUEST A PRELIMINARY
RULING: COMMISSION’S DECISION NOT TO PURSUE A RELATED
COMPLAINT

Decision
Commission

on

complaint 176/97/JMA against

the

European

The complaint

In February 1997, Mr D. complained to the Ombudsman on
behalf of his client, Mr K. The complaint concerned the
Commission’s failure to reply to letters which he had addressed
to it on 7 August 1996 and 11 December 1996.

These letters had been sent
to the Commission as formal
complaints against alleged infringements of Community law by
the Portuguese authorities.

the Commission stated that

The complaint was forwarded to the Commission.
In its
opinion,
it was only after a
submitted in the
thorough evaluation of
complainant’s letters that the Commission was able to draft a
reply in June 1997. The Commission recognised the long
delay, and apologised for not having replied to the letters in a
more reasonable time.

the documents

complainant. However,

As regards the factual situation, the Commission confirmed the
it
position as described by the
considered that no infringement of Community law had
occurred. Since none of
the documents forwarded in the
complainant’s letters proved that Mr K. still held Finnish
nationality, the Commission considered the approach taken by
the Portuguese Supreme Court was justified. Furthermore the
it had not used
Commission stated that, until now,
infringement proceedings under Article 169 of
the Treaty
against any ruling rendered by a national court.

(1) See Commission Manual of Operational Procedures (Section 15(4), p.

45).

The Ombudsman forwarded the Commission’s comments to
the complainant with an invitation to make observations. No
observations were received.

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EN

Official Journal of the European Communities

C 300/55

The Decision

1.

Failure to answer correspondence

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

1.1. The Commission acknowledged that there was a failure to
deal promptly with the letters sent by the complainant. It
offered an explanation and apologised for the delay.

MUTUAL ACCEPTANCE OF CIVIL AVIATION LICENCES

1.2. In view of these facts,

it appeared that there were no
grounds for the European Ombudsman to pursue further
this aspect of the case.

2. Decision not to take up a complaint

2.1. Under Article 155 of the Treaty, the Commission’s duty
that

(cid:145)guardian of

the Treaty(cid:146)

to ensure

is

the

as
Community law is applied.

possible

investigates

infringements

2.2. In carrying out its duty as guardian of the Treaty, the
of
Commission
Community law which come to its attention as a result of
complaints, or at its own initiative. The investigation may
lead to the sending of a letter of formal notice to the
Member State concerned, which has the opportunity to
submit its observations. If the Commission then considers
that the Member State has failed to fulfill an obligation
under the Treaty, Article 169 provides for it to deliver a
reasoned opinion on the matter.

2.3. If the Commission chooses not to pursue an inquiry into
the matter,
there must be some reasoning supporting
such course of action. Those reasons should provide the
the European
basis
Ombudsman in order to ensure that no maladministration
has taken place.

any potential

inquiry by

for

Decision
Commission

on

complaint 260/97/JMA against

the European

The complaint

In April 1997, Mr M. complained to the Ombudsman about
the alleged failure of the Commission to ensure the proper
application by the British authorities of Council Directive
91/670/EEC (1) on the mutual acceptance of civil aviation
licences.

to

the

the

complainant,

According
competent British
authorities did not recognise pilot licences, such as the one
that he had obtained in Spain. They explained their refusal on
the basis that some additional requirements had to be satisfied
before mutual recognition could be granted. The complainant
also claimed that his practical experience had not been taken
into account.

that

In the belief
the British authorities were breaching
Directive 91/670/EEC, Mr M. sent letters about the matter to
the Commission Representation in Madrid in February and
March 1997.

In his complaint to the Ombudsman, Mr M. claimed that the
Commission was not ensuring the proper application of
Directive 91/670/EEC in the United Kingdom, and had not
given any reply to his letters to its Representation in Madrid.

2.4. The Commission justified its inaction in this case on the
the approach taken by the Portuguese
grounds
that
Supreme Court was
the
documents forwarded by the complainant proved that his
client still held Finnish nationality.

justified because none of

The inquiry

The Commission’s opinion

The Commission also pointed out that until now it had
not used infringement proceedings under Article 169 of
the Treaty against any ruling rendered by a national
court.

2.5. In reviewing the

course of action chosen by the
Commission, the Ombudsman found that the institution
had acted within the limits of
its legal authority and
therefore no instance of maladministration had been
established as regards this aspect of the case.

the Commission apologised for the failure of

The complaint was forwarded to the Commission.
In its
its
opinion,
Representation in Madrid to answer the complainant’s letters
in a timely fashion. The Commission explained that a recent
change in staff had taken place in its (cid:145)Eurojus(cid:146) section in
Madrid. As a result, the dispatching of its correspondence had
suffered some delays.

(1) Council Directive 91/670/EEC of 16 December 1991 on mutual
licences for the exercise of functions in

acceptance of personnel
civil aviation (OJ L 373, 31.12.1991, p. 21).

C 300/56

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Official Journal of the European Communities

18.10.1999

The Commission also stated that it had given clear instructions
to its Representations in all Member States to avoid any similar
delay occurring in the future.

the Commission stated that

As regards the application of Directive 91/670/EEC in the
United Kingdom,
in order to
clarify the situation,
its services had contacted the United
Kingdom Civil Aviation Authority. The complainant had been
informed of
initiative and had been asked by the
Commission services to forward to them details concerning his
licence and experience.

this

2.3. From the available information,

the
Commission had acted with due diligence in the handling
of this complaint. The Ombudsman therefore found no
evidence of maladministration in relation to this aspect of
the case.

it appears

that

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

The Ombudsman forwarded the Commission’s comments to
the complainant with an invitation to make observations. No
observations were received.

PRICE OF COMMISSION PUBLICATIONS

Decision
Commission

on

complaint

269/97/PD against

the

European

The Decision

1.

Failure to answer correspondence

1.1. The Commission acknowledged that there was a failure to
deal promptly with the letters sent by the complainant to
its Representation in Madrid.
It offered an explanation
and apologised for the delay.

1.2. Furthermore,

the Commission

its
Representations in the Member States to take all necessary
measures to avoid such delays occurring in the future.

instructed

had

1.3. Since it appeared that a reply to the complainant’s letters
had been given, and that measures had been taken to
avoid a similar situation, there were no grounds for the
Ombudsman to pursue further this aspect of the case.

The complaint

In March 1997, Mr B., a Member of the European Parliament,
complained on behalf of Mr K., a Greek scientist. Mr B. stated
that for some European Union citizens, European Commission
publications are very expensive. In his opinion, some citizens
to these publications,
almost
are
something which
from the
problematic
perspective of transparency.

excluded from access

considers

he

Annexed to Mr B.’s complaint was a letter which he had
received from Mr K.
In his letter, Mr K. stated that some
Commission publications were almost unaffordable for Greek
nationals. He stated as an example that a publication of 300 to
400 pages might cost the equivalent of five days pay for a
Greek scientist.

The inquiry

2. Due diligence in ensuring compliance with Community

The Commission’s opinion

law

2.1. In ensuring that Member States comply fully with
Community law,
the Commission should work in
accordance with principles of good administration, and
act with due diligence. This implies that the Commission,
as the guardian of the Treaty, should actively seek that
the concerned Member State puts an end to the alleged
infringement and duly inform the complainant of
its
actions.

to

2.2. Following the letters of the complainant, the Commission
services contacted the responsible national authorities in
order
of Directive
91/670/EEC by the responsible British authorities. The
Commission also requested more information on the
complainant’s problem, in particular as regards his pilot
licence and professional experience.

application

proper

ensure

The complaint was forwarded to the Commission.
In its
opinion, the Commission described the criteria used for the
pricing of documents:

Institutions.

(cid:145)The pricing policy of the Office for Official Publications of the
European Communities is based on principles established by all
the
the price of a
Institutional authors decide
publication following the recommendation of the Office, by taking
into consideration the policy objectives, the production costs and
the minimum prices required by the sales networks. Very often,
particularly for small print runs in some languages, the price does
not even cover
the costs incurred. Following the principle of
non-discrimination, prices are in ECU and are the same in all
member countries.(cid:146)

The Commission further pointed out
it operated several
networks, such as the European documentation centres, which provide

that

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EN

Official Journal of the European Communities

C 300/57

free access to its publications and that the Community institutions
free information
were currently making a considerable amount of
available on the Internet.

information concerning problems
unemployment benefits in Switzerland.

in the payment of her

No observations on the Commission’s opinion were received from the
complainant.

The complainant was the recipient of a fellowship from the
Community RTD (cid:145)Human capital and mobility(cid:146) programme.
She moved to Duebendorf, Switzerland in December 1994 in
order to complete scientific research for a 20-month period.

The Decision

from having access

An exorbitant or arbitrary pricing policy could be inconsistent
with the principle of transparency, by preventing European
to information published by
citizens
Community Institutions. However, it appears that the current
pricing policy as described by the Commission is based on
objective criteria with the legitimate aim of covering the costs
of the production and distribution of publications. Thus, the
policy does not constitute maladministration.

The pricing policy should also be considered in relation to the
principle of equal treatment. According to the case law of the
Court of Justice, this principle implies that identical situations
shall not be treated differently and different situations shall not
be treated identically. The crucial question in applying this
principle is to establish what is an identical or a different
situation.

Beneficiaries of this type of assistance were required to ensure
their own social security scheme. Accordingly, the complainant
paid her unemployment insurance during all that period. After
completing her research in July 1996, she moved to Zurich
find employment. The complainant
where she could not
requested then the payment of unemployment benefits from
the Swiss Social Security office in that city. She did not obtain,
however, any positive response from the Swiss authorities to
her request.

On 23 October 1996, she wrote to, among others,
the
Commission, requesting information but received no reply to
her query.

In her complaint, Mrs L. asked the Ombudsman to make the
necessary inquiries to ensure that the Commission clarify the
situation.

On the one hand, the Commission could take into account
in income distribution in the Community in
differences
establishing its pricing policy. This could lead to a situation
where the same publication appeared with different prices in
different Member States. On the other hand, one could
consider that the same publication should have substantially
the same price wherever it is offered for sale. It appears that
the Commission
be
appropriate. It appeared to be entitled to do so. Thus, the fact
that
the same publication
should in principle have the same price did not infringe the
principle of equal treatment. Consequently there appeared to
be no instance of maladministration. The Ombudsman
therefore closed the case.

the Commission considered that

considers

second

option

the

to

(See also decision on complaint 1077/4.12.96/WG/D/VK/OV
against
the European
Communities).

for Official Publications of

the Office

The inquiry

The Commission’s opinion

complaint was

The
summary, the Commission’s opinion was as follows:

forwarded to the Commission.

In

for

incoming mail,

there was no trace of

investigation in the various

registration
Despite a careful
systems
the
complainant’s letter dated 23 October 1996 in the files of the
Commission. The letter, the Commission pointed out, was not
institution, but only
addressed to any specific person or
indicated that
to
it was
(cid:145)Commission EuropØenne (Directorat GØnØral)(cid:146).

copied, among others,

to be

COMMISSION FELLOWSHIP: SOCIAL SECURITY CONTRIBUTIONS

Decision
Commission

on

complaint 340/97/JMA against

the European

The complaint

On the substance of the case, the Commission explained that
under
the general conditions governing research training
fellowships applicable to this case, social security contributions
and taxes had to be paid by the researcher out of
the
fellowship. The complainant had been duly informed of this
condition by the host institution. Moreover, the researcher in
this type of grant is solely responsible to ensure compliance
with the national tax provisions.

In March 1997, Mrs L. complained to the Ombudsman that
for
the Commission had failed to reply to a

request

The Commission also explained that
there was no EC
legislation applicable to this case, since the relevant rules,

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EN

Official Journal of the European Communities

18.10.1999

namely Regulation (EEC) No 1408/71, extend their application
only to the European Economic Area, and therefore not to
Switzerland which is not part of the EEA.

3.

In its opinion, the Commission gave a thorough reply to
the problems posed by the complainant, and also the
means to find a potential solution.

In order to help the complainant, the Commission stated that
it would rapidly contact the relevant national authorities to
seek additional
information towards a possible resolution of
this case and that the complainant would be kept informed of
the results.

Additional information from the complainant

4. Since it appeared that a reply to the complainant’s request
the

there were no grounds

had been given,
Ombudsman to pursue this case further.

for

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

Before
the Ombudsman had received the Commission’s
opinion, the complainant sent additional information by letter
of 10 June 1997. In the letter, the complainant explained that
she had been informed of a bilateral agreement on recognition
of unemployment rights between France and Switzerland. On
the basis of
its provisions she had been able to have her
unemployment contributions recognised as of October 1996.
Nevertheless she claimed that her first social security payments
dated back to August 1996.

FAILED RECRUITMENT OF AN EXPERT

Decision on complaint 376/97/PD against the European
Commission

The complaint

Without any information on this bilateral agreement,
the
complainant had lost the opportunity to take advantage of a
minimum salary for reintegration in the labour market.
In
summary, she claimed that the failure of the Commission to
fully explain the consequences of her fellowship had cost her a
substantial amount of money.

In May 1997, X made a complaint to the Ombudsman against
the Commission, holding it responsible for the fact that he was
not recruited for a post as executive director of a development
project which concerned three countries.

As they were not presented in the original complaint,
Ombudsman did not pursue these questions further.

the

The Ombudsman forwarded the Commission’s opinion to the
complainant, who did not make any observations.

The Decision

1. As

the Ombudsman has

the
Commission as a public administration is under a duty to
properly reply to the queries of citizens.

stated in similar cases,

2.

In this case, however, the Commission had justified its
request on the
failure to reply to the complainant’s
grounds that no trace of her letter was found in any of the
various registration systems of the institution. Since the
letter had merely been copied to the Commission, and no
address had been included, it is conceivable that the postal
services were not able to deliver the letter.

The Commission funded the post in question and provided
the recruitment. The Commission
financial assistance for
enlisted the help of a specialist consultant for the recruitment
procedure.
In May 1996 the consultant notified X that he
should meet the managing body of the project, composed of
representatives from the countries concerned. Subsequently X
was informed that he had been selected for the post. He was
called to Brussels in July 1996 to attend a meeting as future
executive director of the project with Commission officials and
the Ambassadors of the countries concerned. He was supposed
to take up his duties as executive director on 1 November
1996.

However, by November 1996 X’s contract had still not been
signed. X stated that every time he contacted the Commission
about the matter he was told that he had to wait because there
were problems with the signature of the funding agreement
between the European Union and the managing body.

On 15 December 1996, X received a draft contract from the
managing body. He was informed at the same time that the
draft had been approved by the Commission. On 16 December
1996, X proposed a number of amendments to the draft
contract. On 6 February 1997, he received a letter from the
managing body
the
amendments and that it wanted to break off negotiations with
him.

could not

stating

accept

that

it

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Official Journal of the European Communities

C 300/59

After addressing the Commission on this issue without success,
the
X complained to the Ombudsman. The substance of
complaint was
role as
intermediary, was responsible for the fact that the recruitment
procedure came to nothing and consequently the complainant
demanded compensation.

the Commission, given its

that

also interviewed by European Community officials. The fact
that the Commission approved the final choice also made it
liable.

X contested the Commission’s claim that any terms of the
contract had already been agreed.

The inquiry

The Decision

The EC Treaty empowers the European Ombudsman to inquire
into possible instances of maladministration only in the
activities of Community institutions and bodies. The Statute of
the Ombudsman specifically provides that no action by any
other authority or person may be the subject of a complaint to
the Ombudsman. The Ombudsman’s
into X’s
complaint were therefore directed towards examining whether
the
there had been maladministration in the activities of
Commission.

inquiries

The Commission’s opinion

the Commission stated that

In its
The complaint was forwarded to the Commission.
opinion,
the
managing body addressed the Commission seeking Community
financing. The Commission agreed to fund the selection
procedure for the post of executive director of the project and
to fund the post.

in March 1995,

The Commission submitted a short list of four candidates to
the managing body, which selected X. Afterwards,
the
managing body addressed the Commission with a view to
securing its approval of the appointment and asking it to act
as an intermediary in agreeing the remuneration terms with
the successful candidate. The Directorate-General concerned
approved the appointment and forwarded the terms and
conditions to be included in the contract to the managing
body.

The Commission stated that the managing body decided to
break off negotiations because X’s demands were in excess of
what had been agreed and because he had called into question
terms that had already been agreed.

Finally, the Commission stated that the financial assistance by
the European Communities to the project did not constitute
any commitment on the part of the Commission vis-(cid:224)-vis the
candidates, given that it was the managing body which was
the contracting institution, and not the Commission.

The complainant’s observations

In his observations, the complainant claimed that there was a
contractual link between himself and the Commission arising
from the fact that the Commission contracted the selection of
candidates to a European company and that candidates were

of

an

for

project

instance

constituted

to the post of

the
The question raised by this complaint was whether
executive
complainant’s non-recruitment
of
the
director
maladministration attributable to the Commission. It appeared
that the Commission assisted the managing body in finding
the post and in funding the recruitment
candidates
procedure and that
the Commission never concluded a
the
contract with the complainant.
procedure was set in motion on the initiative of the managing
body, that the final choice of the successful candidate was
made by it without any intervention by the Commission and
that the contract to be signed was to be concluded between
the complainant and the managing body. The decision whether
to sign the contract or to break off negotiations was thus its
responsibility.

It also appeared that

to incite

The fact that the managing body asked the Commission to
approve the appointment of X (cid:151) which the Commission did
immediately (cid:151) did not alter this responsibility. There were no
elements at hand indicating that the Commission unduly took
to break off
measures
negotiations with X. Nor were there any elements at hand
indicating that the Commission at any moment assumed legal
responsibility for the actions of the managing body, or that the
Commission behaved in such a way towards the complainant
to be under a
that he could legitimately consider himself
contract with the Commission.

the managing body

Thus, it appeared that the fact that the complainant was not
recruited to the post as executive director of the project did
not constitute an instance of maladministration in the activities
of
the Commission. The Ombudsman therefore closed the
case.

RESERVE LIST FOR RECRUITMENT

Decision
Commission

on

complaint

385/97/PD against

the

European

The complaint

In May 1997, Mr G. made a complaint to the Ombudsman
alleging that the Commission’s recruitment policy constituted
In 1993 the Commission
an instance of maladministration.
organised two general competitions
for nationals of all
Member States, COM/A/764 and COM/A/770, with a view to
establishing reserve lists for administrators. Mr G. applied
under the latter competition and passed the examinations

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Official Journal of the European Communities

18.10.1999

interviewed by

examination and to be

successfully. His name was therefore entered on the reserve list
established in the autumn of 1994. In June 1995, Mr G. was
invited to Brussels by the Commission in order to undergo a
medical
those
Commission services which might possibly be interested in
recruiting him. However, after having passed the medical tests
and having been interviewed, Mr G. did not receive a job offer.
Meanwhile, he obtained knowledge of
the
Commission recruits as temporary agents persons who have
never passed a general competition. Mr G. considered it to be
an instance of maladministration that persons who had passed
a competition were not offered jobs, while persons who had
never passed a competition were recruited.

the fact

that

The inquiry

The Commission’s opinion

In its
The complaint was forwarded to the Commission.
opinion, the Commission firstly pointed out that it follows
from the Staff Regulations and the case-law of the Court of
Justice that persons who have passed a competition do not
have an automatic right to be offered a job. The Commission
also indicated that the notice of competition clearly explained
this situation. The notice in fact stated that the number of
names on the reserve list would be around 50 % more than the
number of available posts.

It

transmits

The Commission then explained how it normally proceeded
the reserve lists with the
with reserve lists.
curriculum vitae of each applicant to the Commission services,
which can then request the recruitment of an applicant when
they have a vacant permanent post. However, in the case of
this specific competition, on the initiative of the Commission’s
for
staff department applicants were invited to Brussels
interviews
the
an information meeting about
recruitment procedure. Following the interviews that Mr G.
had, the staff department did not receive any requests for his
recruitment.

and for

The Decision

The question that the complaint raised was whether it can be
considered to be an instance of maladministration that the
Commission in general allows for the recruitment of staff
other than permanent staff, while persons on a reserve list are
not offered a permanent job. In this respect it shall firstly be
observed that the Commission is not legally obliged to recruit
a person whose name is on a reserve list. Secondly, as was
from the explanation given in the Commission’s
apparent
opinion,
the Commission carries out a wide variety of
functions and acts under the budgetary constraints that the
budgetary authority imposes upon it. Some functions may by
their very nature be temporary, while others may require a
specific expertise which nobody on the reserve list possesses.
Therefore, the mere fact that the Commission proceeded to the
recruitment of staff other than permanent staff during a time
when it had not exhausted existing reserve lists did not
constitute an instance of maladministration.

On the basis of the European Ombudsman’s inquiries into this
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

ALLEGED DISCRIMINATION IN CALL FOR TENDER

Decision
Commission

on

complaint

564/97/PD against

the

European

The complaint

for

into

French,

translation

the tender notice stated that

In June 1997, Mr D. made a complaint to the Ombudsman
concerning the Commission’s handling of a restricted call for
tender
97/S36-18547/FR,
published by the Commission on 20 February 1997. Point 6
the number of applicants
of
invited to bid would be between 5 and 30, so as to cover the
operational needs of the contracting authority and to ensure
genuine competition. Point 13 in the call for tender laid down
the conditions that the applicants had to comply with. Point
14 provided that the contracting authority would select the
applicants who would be invited to bid on the basis of the
information they had submitted in relation to point 13.

temporary

concerned the

recruitment of

the
As
staff,
Commission observed that sometimes it happens that
the
profiles of the applicants on the reserve list do not fit the
needs of the service concerned. Furthermore, the Commission
to budgetary constraints which may lead to a
is subject
situation where it has appropriations available for employment
of
services, but none for
recruiting staff to permanent posts. Thirdly, the Commission
observed that since 1995 it had to assign a large part of its
recruitment to nationals of the new Member States.

temporary agents or external

Mr D. applied under this call for tender. On 29 May 1997 the
Commission informed him that he would not be invited to
bid, although his application was in conformity with the
tender notice. By letter of 2 June 1997, Mr D. asked the
Commission to review this decision, but without success.

Against
the
Commission had discriminated against his company and, with

this background, Mr D.

complained that

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Official Journal of the European Communities

C 300/61

a view to supporting this allegation, he asked the Ombudsman
to request the Commission’s reply to the following questions:

Against this background the Commission concluded that it had
operated properly and that there had been no discrimination
against Mr D.’s company.

1. Which criteria did the Commission use in order to select
the number of candidates invited to bid under point 6 of
the tender notice?

The complainant’s observations

2. What does

the Commission understand by (cid:145)genuine

competition(cid:146)?

In
In his observations Mr D. maintained his complaint.
that
particular he
Commission services other than the ones in charge of this
tendering procedure had been pleased with his work.

to documentation showing

referred

3. What advantage does the Commission gain from excluding
candidates which fulfilled the conditions in the tender
notice, in particular in point 13?

The Decision

Finally, Mr D. claimed that the fact that, under other calls for
tender, his company was invited to bid for translation into
English and German was
inconsistent with the decision
concerning the call for tender for translation into French.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission explained the procedure followed in
selecting applicants who would be invited to bid. In particular,
the Commission called attention to the fact that the procedure
in question was a so-called restricted procedure, governed by
the provisions of Article 27 of Council Directive 92/50/EEC (1).
Under such a procedure, the contracting authority has a right
and even an obligation to select between the applicants who
fulfil the criteria laid down in the tender notice.

In reply to the first question, the Commission indicated that
this selection of applicants was made by comparing their
respective merits. The Commission annexed evidence to its
opinion from which it appears that in the past, the quality of
the translations provided by Mr D.’s company had not been
considered sufficient.

As concerned the second question, the Commission explained
that under a previous tendering procedure, 307 companies had
translation into French of which 147
been retained for
afterwards never received any work to do and 117 translated
than 400 pages each. By the term (cid:145)ensure genuine
less
competition(cid:146)
the
number of companies, so as to ensure that there was real
competition among them.

the Commission thus understood to limit

As concerned the third question, the Commission explained
that a restricted procedure represented an advantage to the
Commission in the sense that only the best companies were
retained, which implied that the Commission services had to
do less revision of the translations received.

(1) OJ L 209, 24.7.1992 p. 1.

that

the Commission.

identical
The principle of non-discrimination implies
situations cannot be treated differently and that different
situations cannot be treated identically. There is no element at
hand indicating that
the Commission had engaged in
discrimination in this matter. The distinguishing element
among the applications which were in conformity with the
tender notice was the quality of the applicants’ work, which in
Mr D.’s case was seen as a weak point by the selection
committee of
appeared from the
Commission’s opinion that
the Commission had complied
properly with the provisions governing the procedure. The fact
that under other calls for tender, Mr D.’s company had been
successful, did not have any bearing on this finding. Neither
did the fact that, on some occasions, the Commission had
found the complainant’s work of good quality invalidate the
fact that, on other occasions, the Commission had found the
quality to be insufficient. Therefore the Ombudsman found
that
the
Commission’s decision not to invite Mr D. to bid constituted
the
an instance of maladministration in the activities of
Commission.

there were no grounds

claim that

the

for

It

into this
the Ombudsman’s
On the basis of
complaint, there appeared to have been no maladministration
by the European Commission. The Ombudsman therefore
closed the case.

inquiries

ARTICLE 169: FAILURE TO DELIVER REASONED OPINION AND
EXCLUSION OF THE COMPLAINANT FROM A MEETING

Decision
Commission

on

complaint

651/97/IJH against

the

European

The complaint

In July 1997, Mr R. complained to the Ombudsman on behalf
of his company BLC Limited, which imported beer produced
by a German brewery into the United Kingdom market. The
following is a summary of
the facts as presented in the
complaint:

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Official Journal of the European Communities

18.10.1999

(GBP). This allowed the tenants of

On 3 April 1993, Mr R. complained to the Commission about
the (cid:145)Guest Beer
a new United Kingdom law known as
large United
Provision(cid:146)
Kingdom brewers, who are subject
to exclusive purchase
agreements, also to buy one cask-conditioned beer of their
choice. Mr R. claimed that the GBP discriminated against beer
produced in other Member States and so infringed Article 30
of the EC Treaty.

In his complaint to the Ombudsman Mr R. alleged that:

(i)

the Commission’s failure to send the reasoned opinion to
the United Kingdom authorities after it had announced its
1996 was
do
decision
maladministration;

5 August

on

so

to

On 30 June 1993, the Commission informed Mr R. that his
complaint had been registered and that the GBP was being
examined by the Commission’s staff from the standpoint of the
free movement of goods. On 28 September 1995,
the
Commission informed Mr R. that, on 15 September 1995, it
had sent to the United Kingdom authorities a letter of formal
notice, in accordance with the procedure laid down in Article
169 of the EC Treaty.

(ii) the Article 169 procedure was improperly conducted after
in particular, his exclusion from the

5 August 1996;
tripartite meeting in October 1996 was unreasonable.

Mr R. also requested the Ombudsman to ask the Commission
not to terminate the Article 169 procedure until his inquiries
were completed.

On 7 February 1996, the Commission informed Mr R. of the
substance of the United Kingdom’s reply to the letter of formal
notice and invited him to make observations on the arguments
which the United Kingdom had put forward.

The inquiry

The Commission’s opinion

On 5 August 1996, a Commission press release (IP/96/774)
the Commission had decided to send a
announced that
reasoned opinion to the United Kingdom, in accordance with
the procedure laid down in Article 169 of the EC Treaty.

The complaint was forwarded to the Commission.
opinion, the Commission made,
points:

In its
in summary, the following

On 22 August 1996, Mr R. learnt from a press release issued
by the United Kingdom Department of Trade and Industry that
a tripartite meeting was scheduled to take place in October
the United Kingdom
1996 between the Commission,
authorities and a trade association,
the ConfØdØration des
Brasseurs du MarchØ commun (CBMC). On 27 August 1996, he
wrote to the Commission asking to be allowed to attend the
meeting, but the Commission refused his request. However, he
was invited to attend a separate meeting with the Commission
services a few days later.

On 1 November 1996 Mr R. wrote to the Commission
concerning
and raised questions
the
concerning the accuracy of
information provided by the
CBMC.

tripartite meeting

Mr R. subsequently initiated numerous contacts with the
responsible Commission services who advised him on 16
December 1996 that the reasoned opinion was ready to be
sent.

In March 1997, the United Kingdom government announced
also
it proposed to amend the GBP to include
that
bottle-conditioned fermenting beers; that the Commission was
satisfied with the terms of the proposed amendment and no
longer
reasoned opinion. Mr R.
the
considered that the proposed amendment was not adequate to
bring the infringement of Article 30 to an end.

intended to issue

(i) Article 169 gives the Commission the power to bring a
Member State before the Court of
Justice when it
considers that it has failed to fulfil an obligation under
the Treaty. The Commission has a discretion as
to
whether it seizes the Court, even if a Member State does
not comply with a reasoned opinion. Individuals and, in
particular, complainants have no right
to require the
Commission to adopt a specific position.

(ii) The Commission

encourages

to make
complaints so that its services become aware of violations
of Community law. The Commission has considered that
the complainant should be informed of the outcome and
of the action it decides to take.

individuals

(iii) The GBP allowed only draught cask-conditioned beer to
be bought and this kind of beer corresponds to a typical
British traditional product. The Commission considered
this as de facto discrimination in breach of Articles 30 to
36 of
the Commission
considered that the objectives of the GBP, in particular to
guarantee a better choice for consumers and to give a
market opportunity to traditional beers mostly produced
by small and medium size breweries, could be legitimate.

the EC Treaty. However,

(iv) After sending the letter of

formal notice and having
decided to send the reasoned opinion, the Commission,
taking into account the openness of the United Kingdom
authorities
to finding a solution in conformity with
Community law, decided to discuss possible alternatives

18.10.1999

EN

Official Journal of the European Communities

C 300/63

with them. Several meetings were organised, including a
tripartite meeting between the Commission, the United
Kingdom authorities and the beer industry represented by
the CBMC.

of

bottle-conditioned

(v) At the beginning of March 1997, the United Kingdom
authorities proposed an amendment to the GBP allowing
the tenants of the large national breweries to buy one
brand
to
cask-conditioned beer. For the Commission, the solution
is
the traditional beers
produced in other Member States are bottle-conditioned.
Consequently the Commission decided to suspend the
send the reasoned opinion. The
procedure and not
amendment was passed on 22 July 1997 by the United
Kingdom Parliament.

satisfactory because most of

addition

beer

in

(vi) Mr R. was kept informed, at each stage, of the action
taken by the Commission. In particular, after the Press
Release of 5 August 1996 stating that the Commission
had decided to send a reasoned opinion to the United
Kingdom, he was informed by telephone of
the stage
reached in the procedure and received three times in the
Commission’s offices. Although he was not invited to the
tripartite meeting held on 11 October 1996, he was
received three days later by DG XV and informed of
non-confidential elements discussed during this meeting.
On 21 April 1997, he was informed by letter that the
Commission considered that the extension of the GBP to
traditional bottle-conditioned beers was satisfactory.

The complainant’s observations

Mr R.’s observations included,
points:

in summary,

the following

(i)

The Commission’s failure to send the reasoned opinion to
the United Kingdom authorities was a breach of its legal
obligations under Articles 155 and 169 of the EC Treaty.

(ii) The Commission’s decision to support the amendment to
the GBP in 1997 failed to deal with the crucial legal issue
of what was necessary in 1990 when the provision was
first introduced.

(iii) The Commission’s decision was legally unsustainable and
ignored the evidence that he had supplied. Its reasoning
concerning (cid:145)traditional(cid:146) beer was an excuse for having
the Article 169
negotiated a political
procedure.

settlement of

The Decision

1.

The request to ask the Commission not to terminate the
Article 169 procedure until the Ombudsman’s inquiries
were completed

1.1. Neither the Treaty nor the Statute of the Ombudsman
provides for a complaint to the Ombudsman to have a
effect on administrative procedures. The
suspensive
normal principle applied at national
that a
complaint
to an ombudsman does not have such an
effect.

level

is

1.2. In the present case,

there appeared to be no special
factors that could justify the Ombudsman proposing to
the Article 169
the Commission not
procedure in question, which also affected the interests of
other parties.

to terminate

2.

The Commission’s failure to send the reasoned opinion
to the United Kingdom

2.1. Article 155 of the EC Treaty establishes the role of the
Commission as the (cid:145)guardian of the Treaty(cid:146). As guardian
of the Treaty, its duty is to ensure that the provisions of
the Treaty and the measures taken by the institutions
pursuant thereto are applied.

2.2. Article 169 of the Treaty provides that:

If the Commission considers that a Member State has failed
to fulfil an obligation under this Treaty, it shall deliver a
reasoned opinion on the matter after giving the State
concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion
within the period laid down by the Commission, the latter
may bring the matter before the Court of Justice.

2.3. The evidence available to the Ombudsman is that, having
given the United Kingdom the opportunity to submit its
observations, the Commission considered that the Guest
the Treaty
Beer Provision infringed the provisions of
concerning free movement of goods. However,
the
Commission decided not to send the reasoned opinion
immediately because the United Kingdom authorities were
willing to discuss finding a solution in conformity with
Community law.

2.4. According to the case-law of the Court of Justice, the
enforcement procedure involves a power on the part of
the Commission to consider the most appropriate means
and time limits for the purposes of putting an end to any
contraventions of the Treaty (1).

2.5. No evidence has been presented to the Ombudsman to
show that this power was abused in the present case. In
particular, there is no evidence of unnecessary delay by
the Commission during its discussions with the United
Kingdom authorities between August 1996 and March
1997 when the United Kingdom authorities proposed an

(1) Commission v France Case 7/71 [1971] ECR 1003.

C 300/64

EN

Official Journal of the European Communities

18.10.1999

to

amendment
considered would
infringement to an end.

the GBP, which the Commission
the

satisfactory

bring

be

to

Commission’s administrative procedures in relation to
citizens’ complaints about national authorities (1).

2.6. The complainant also claimed in his observations that, in
considering the 1997 amendments to the GBP to be
satisfactory, the Commission failed to deal with what was
necessary in 1990 when the GBP was first introduced.

2.7. Article 169 provides for a reasoned opinion to contain a
time limit within which the State must comply with the
opinion. The Commission may only bring the matter
before the Court of Justice if the State does not comply
within the period laid down. It is clear, therefore, that in
carrying out its functions under Article 169, the relevant
question for the Commission to consider when the United
Kingdom proposed amendment of the GBP in 1997 was
whether the proposal was satisfactory to put an end to
the infringement.

3.

The Commission’s procedural treatment of the complaint

3.1. In carrying out its functions as guardian of the Treaty, the
Commission has a duty to act in accordance with the
principles
In
responding to the Ombudsman’s inquiries in (cid:145)Article 169(cid:146)
cases, the Commission has consistently acknowledged this
duty.

administrative

behaviour.

good

of

3.2. It is common ground that the Commission registered the
complaint concerning the GBP,
informed the
complainant of the sending of a letter of formal notice
and that it gave him an opportunity to comment on the
substance of the reply received from the United Kingdom.
The Commission then publicly announced its view that
an infringement existed.

that

it

3.3. On the

the

evidence

available

basis of

to the
it appears that the complainant was also
Ombudsman,
the Commission’s subsequent decision to
informed of
engage
the United Kingdom
discussions with
authorities about possible alternative ways to bring the
infringement to an end.

in

its view that

the extension of

3.4. The Commission informed the complainant on 21 April
1997 of
the GBP to
traditional bottle-conditioned beers would be satisfactory
to bring the infringement
to an end. The evidence
supplied by both parties to the Ombudsman shows that
the complainant knew of the Commission’s reasoning for
this conclusion and had the opportunity to submit further
evidence
complainant
therefore
enjoyed the procedural
possibility accepted by the Commission in response to the
the
initiative
Ombudsman’s

counter-arguments.

and
appears

to have

inquiry

own

into

The

3.5. As regards the tripartite meeting,

be

prima

the exclusion of a
from a meeting intended to discuss a
complainant
solution to the
facie
complaint would
unreasonable in a normal administrative procedure in
which the complainant is a party. However, the choice
between different courses of action which are compatible
with Community law is a matter for the Member State
concerned. Therefore, in the present state of Community
law, there appears to be no legal basis for the claim that
it was unreasonable to exclude the complainant from a
meeting organised in that context, provided that he had
on
the
the
compatibility with Community law of
the course of
action finally selected and accepted as satisfactory by the
Commission. As noted in paragraph 3.4, this appears to
have been the case.

procedural

possibility

comment

to

3.6. The Ombudsman’s inquiries have not, therefore, revealed
evidence of
failure by the Commission to observe the
principles of good administrative behaviour in relation to
the procedural matters dealt with in this section of the
decision.

4. Matters raised in the complainant’s observations

the

amendment

4.1. In his observations on the Commission’s opinion,

the
the Commission’s decision to
complainant argued that
support
legally
unsustainable and ignored the evidence that he had
supplied. He
the Commission’s
reasoning concerning (cid:145)traditional(cid:146) beer was an excuse for
having negotiated a political settlement of the Article 169
procedure.

to the GBP was

also claimed

that

complaint

focused on the procedural
4.2. The original
dealt with in Sections 2 and 3. The
questions
observations did not appear to provide grounds for the
Ombudsman to conduct
into these new
allegations.

inquiries

4.3. The Ombudsman notes that

the complainant has the
possibility to contest the compatibility of the amended
Guest Beer Provision with Article 30 of the EC Treaty by
initiating proceedings in the United Kingdom courts.

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

(1) 303/97/PD, decision of 13 October 1997.

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Official Journal of the European Communities

C 300/65

TRANSFER OF PENSION RIGHTS

the Commission had answered all

that
questions; and no other measures would be considered.

the complainant’s

Decision
Commission

on

complaint

733/97/PD against

the

European

No observations were received from the complainant.

The complaint

The Decision

In August 1997,
Bundestag transferred a petition lodged by Mr L.
European Ombudsman to be dealt with as a complaint.

the Petitions Committee of

the German
to the

in its

reply to Mr L.’s

the
It appeared that
Commission gave adequate reasons why it could not meet his
request. Therefore, the Ombudsman found no justification for
the claim that the Commission had dealt with Mr L.’s request
improperly.

inquiries,

Mr L. had worked for the European Commission from 16 May
1960 until he resigned on 1 May 1970. In accordance with
the applicable provisions of the Staff Regulations, he was paid
a severance grant.

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

In December 1994 and in April 1995 Mr L. asked the
Commission to allow him to repay the severance grant and
transfer his pension rights to the German pension system. The
complainant alleged that the Commission did not properly deal
with his request.

The inquiry

The Commission’s opinion

In its
The complaint was forwarded to the Commission.
opinion, the Commission stated that, in accordance with the
applicable provisions of the Staff Regulations, Mr L. had not
been entitled to a pension. Therefore a severance grant had
been paid to him. Furthermore the opinion stated that the
Commision had replied to the complainant’s inquiries of 23
December 1994 and 7 April 1995 on 13 June 1995, as
follows:

(cid:151) that on the one hand the reimbursement of the severance
grant was not possible (Article 4 of Annex VIII of the Staff
Regulations provides for such a possibility only if
the
person concerned resumes active employment with a
Community institution),

(cid:151) that on the other hand the transfer of pension rights could
only be taken into consideration for those officials and
temporary agents who are still in active service, or else for
those who, when leaving the service of an Community
institution can prove an immediate entitlement to pension
or an entitlement which takes effect after a certain period;
this was however not the case with the complainant.

PACKAGE HOLIDAYS DIRECTIVE: ALLEGED FAILURE BY
COMMISSION TO DEAL PROPERLY WITH A COMPLAINT

Decision
Commission

on

complaint 1075/97/IJH against

the

European

The complaint

In November 1997, Mr D. made a complaint
to the
Ombudsman concerning the way in which the Commission
had dealt with a complaint which he had made against the
United Kingdom authorities in August 1995.

Mr D.’s complaint to the Commission concerned the alleged
failure of
the United Kingdom Government properly to
implement and enforce the provisions relating to surcharges
contained both in Directive 90/314/EEC and in the national
legislation through which the Directive was transposed into
domestic law (1). The Commission registered the complaint as
No 95/4883.

In February 1996, DG XXIV of the Commission informed the
complainant that the Directive appeared to have been properly
transposed into domestic law, but that the Commission had
requested information from the United Kingdom authorities
concerning a guidance booklet about the law published by the
United Kingdom Department of Trade and Industry (DTI) and
that Article 169 infringement proceedings might commence if
the reply from the United Kingdom authorities were not
satisfactory.

On 7 October 1997, DG XXIV informed the complainant that
his complaint had resulted in a change of wording in the DTI’s

The opinion also stated that
the
severance grant the Commission had fullfilled its obligations
towards the complainant since he had no claim to a pension;

through the payment of

(1) Council Directive 90/314/EEC of 13 June 1990 on package travel,
package holidays and package tours 1990 (OJ L 158, 23.6.1990, p.
61);
the Package Travel, Package Holidays and Package Tours
Regulations 1992, SI 1992 3288.

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Official Journal of the European Communities

18.10.1999

guidance booklet and that the Commission had decided not to
go further in the matter. The letter also explained that the
Directive in question did not require that injunctive powers
should be available to national authorities to deal with possible
infringements of national provisions transposing Community
for a Directive containing such
that a proposal
law, but
injunctive powers was being considered.

In summary, Mr D.’s complaint
three allegations:

to the Ombudsman made

(i)

The time taken to deal with the complaint
Commission was excessive.

to the

(ii) The Commission’s letter dated 7 October 1997 contained

irrelevant information.

(iii) The Commission had failed to deal properly with the
issues raised in the complaint and by approving the
the
revised wording of
Commission had colluded with the United Kingdom
Government’s failure to implement Directive 90/314/EEC
properly and effectively.

the DTI’s guidance booklet

As regards the third allegation, the complainant referred to the
fact that the guidance booklet omits key words that appear
both in the Directive and in the Regulations through which
the Directive was transposed into domestic law. Firstly, the law
provides that a surcharge may be imposed only (cid:145)if the contract
states precisely how the revised price is to be calculated,(cid:146) whereas the
booklet omits the words (cid:145)precisely(cid:146) and (cid:145)to be(cid:146). According to the
complaint, package tour companies do not, in practice, explain
in their contracts the method by which surcharges will be
calculated. Secondly, the law provides that surcharges may be
imposed only in respect of a limited range of items including
(cid:145)fees chargeable for services such as landing taxes or embarkation or
disembarkation fees at ports or airports(cid:146). However, the booklet
refers only to (cid:145)fees
in practice,
package tour companies frequently add amounts in respect of
administration charges and agents’ commissions, which they
are not entitled to charge. According to the complainant, the
consumer protection which the Directive aims to provide is
thereby negated.

services(cid:146) and,

chargeable

for

The inquiry

The Commission’s opinion

The complaint was
Commission’s opinion included,
points:

forwarded to the Commission. The
the following

in summary,

took the view that

not (cid:145)state precisely how the revised price is to be calculated(cid:146). The
Commission informed the United Kingdom authorities of the
complaint on 6 December 1995. In a letter of 7 March 1996
the United Kingdom authorities
the
guidance booklet was not misleading. However, in a meeting
the United
with officials of DG XXIV on 26 July 1996,
Kingdom authorities showed their readiness to modify the text
of the booklet. Taking into account the new text, which was
communicated on 10 October 1996, the Commission decided
to close the file on 19 March 1997 because it considered that
the United Kingdom was not in breach of Community law.
The complainant was
this decision and the
informed of
reasons for it by letter of 7 October 1997. That letter also
contained clear and detailed information on the questions
raised
of
enforcement.

complainant

concerning

issue

the

the

by

The Commission’s opinion also expressed regret for the delay
between closing the file (19 March 1997) and informing the
complainant of this decision (7 October 1997).

The complainant’s observations

irrelevant

In his observations, the complainant maintained the allegations
of excessive delay,
information and collusion in
misrepresenting the meaning of the Directive. He repeated his
view that the Commission had ignored his main point about
the importance of the precise wording of the Directive. In this
respect, he considered the revised wording of the DTI guidance
booklet to be no better than the original.

The Decision

1.

Preliminary remarks concerning the Commission’s
procedures for dealing with complaints concerning
infringements of Community law by Member States

1.1. The Commission closed its file on the complaint in this
case in March 1997.
In April 1997 the Ombudsman
began an own initiative inquiry into the possibilities for
improving the quality of the Commission’s administrative
concerning
for dealing with complaints
procedures
infringements of Community law by Member States (1).
During
the Commission
indicated that it had adopted an internal rule of procedure
that a decision either to close a file without taking any
infringement proceedings,
action, or to initiate official
must be taken on every complaint within a maximum
period of one year from the date on which it was
registered, except in special cases, the reasons for which
must be stated.

the own-initiative

inquiry

The complainant had complained to the Commission about
both the text of the guidance booklet and the absence of an
enforcement mechanism in case a package travel contract does

(1) 303/97/PD,
reported in the European Ombudsman’s Annual
Report
for 1997 pp. 270-274 and see the Commission’s 15th
Annual Report on Monitoring the Application of Community law
(1997), Introduction pp. III-IV (COM(1998) 317 final).

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Official Journal of the European Communities

C 300/67

the Commission will

1.2. Furthermore, the Commission undertook that, apart from
cases where a complaint is obviously without foundation
is heard from the
and cases where nothing further
complainant,
a
complainant is informed of its intention to close a case. It
appears, therefore, that in cases such as the present, in
which the Commission finds that there is no infringement
of Community law,
the
possibility to put forward views and criticisms concerning
the Commission’s point of view before the Commission
there is no
to a final conclusion that
commits itself
infringement.

should have

complainants

ensure

that

2.

The complaint of excessive delay

2.1. In the present case, the delay between registration of the
complaint and the Commission’s decision to close the file
was over two years.
the Commission
apologised for the further delay (nearly seven months)
before the complainant was informed of this decision.

In its opinion,

2.2. The Commission’s adoption of the internal rule referred
to in paragraph 1.1 and the commitment referred to in
paragraph 1.2 should prevent unnecessary delay in
dealing with future complaints. It therefore appears that
the Commission has already acted to ensure that future
cases are dealt with in approximately half the time taken
to deal with the present case. In view of this commitment
and of the Commission’s apology referred to in paragraph
2.1, no further action by the Ombudsman appears
necessary.

3.

The allegation that the Commission’s letter dated 7
October 1997 contained irrelevant information

3.1. The Commission’s letter

to the complainant dated 7
October 1997 informed him of the Commission’s view
that the modified text of the DTI guidance booklet met
the
the necessary demands
Commission had decided not
to go further into the
matter. As noted in paragraph 1.2, complainants should,
in future, have the opportunity to put forward views and
criticisms concerning the Commission’s point of view
before the decision to close a case is made.

for clarification and that

3.2. According to the complainant, the Commission included
irrelevant material in its letter: in particular, the additional
explanation concerning the absence of a requirement of
injunctive provisions to enforce Directive 90/314/EEC
and the information about a proposal for a new Directive
which would require such provisions.

3.3. The complaint to the Commission dated 15 August 1995
expressly raised the issue of the absence of any means of
enforcement of the Directive. The Ombudsman therefore
considers that it was correct for the Commission to deal
with this matter
complainant.
it does not appear inappropriate for the
Furthermore,
Commission
about
to
also
legislative proposals relating to enforcement.

information

volunteer

to the

in its

letter

3.4. There appears, therefore, to be no maladministration in

relation to this aspect of the complaint.

4.

The allegation that the Commission failed to deal
properly with the issues raised by the complaint and
colluded with a failure by the United Kingdom
Government to implement Directive 90/314/EEC
properly and effectively

4.1. The complainant’s main claim in relation to this aspect of
the case concerns the fact that the DTI guidance booklet
does not reproduce exactly the wording of the Directive
and transposing Regulations. He alleges that, as a result,
package tour operators regularly include in their contracts
provisions which are void according to the Directive and
transposing Regulations and that the consumer protection
which the Directive aims to provide is thereby negated.
According to the complainant, the Commission has failed
to deal
and by
approving the revised wording of
the DTI guidance
booklet has colluded with a failure by the United
Kingdom Government
Directive
to
90/314/EEC properly and effectively.

satisfactorily with this

implement

complaint

of

to

the

booklet

guidance

4.2. In its opinion, the Commission refers to its letter to the
complainant dated 21 January 1998 in reply to the
complainant’s
letter dated 25 November 1997. The
complainant’s letter explained why he considered the
be
revised wording
unacceptable. The Commission’s reply stated that Member
States are obliged only to transpose and implement
Directive 90/134/EEC and that they have no obligation to
publish and distribute information on the measures taken
to comply with the Directive. Consequently the guidance
booklet could be judged to infringe the Directive only if it
gravely endangered its aim, which did not seem to be the
case. The Commission’s reply also expressed the view that
enforcement provisions do not seem to be necessary,
because if a package travel contract fails to state precisely
how the revised price is to be calculated, the sanction is
simply that
the organiser will not be entitled to any
additional payment and that this is in full compliance
with Article 4(4)(a) of the Directive.

4.3. The Commission has

therefore

responded

arguments presented by the complainant.

to the
It has made

C 300/68

EN

Official Journal of the European Communities

18.10.1999

it

considers

the Member

clear what
legal
obligations to be and why it considers that there is no
infringement of Community law by the Member State.
There is no evidence available to the Ombudsman to
suggest maladministration by the Commission in its
assessment of these matters.

State’s

4.4. The correspondence between the complainant and the
Commission (referred to in paragraph 4.2)
took place
after the Commission had already closed the file on the
complaint. As noted in paragraph 1.2,
in future,
complainants should have the possibility to put forward
views and criticisms concerning the Commission’s point
of view before the Commission commits itself to a final
conclusion that there is no infringement.

4.5. In view of

the

above,

there

appears

maladministration in relation to this aspect of
complaint.

to be no
the

Conclusion

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

RECRUITMENT PROCEDURES: DECISION TO NOMINATE
ANOTHER CANDIDATE

Decision
Commission

on

complaint 1116/97/BB against

the

European

The complaint

to the
In November 1997, Mr K. made a complaint
Ombudsman
Procedure
COM/R/A/183 and the Selection Board’s decision to nominate
another applicant
the
complainant was on the reserve list.

to the position despite the fact

concerning

Selection

that

the

The complainant was a candidate in the Selection Procedure
COM/R/A/183. On 3 March 1997, the Commission informed
him that he was on a reserve list valid until 31 December
1997. In his complaint, Mr K. alleged that the position had in
fact been created for a Mr H., although according to the
complainant Mr H. did not comply with the requirements of
the vacancy notice,
that he neither had 15 years of work
experience in the field nor was he the best qualified candidate.

The complainant claimed that he sent a fax to the Commission
on 15 August 1997, asking about the filling of the vacancy.
He also claimed that in order to eliminate possible candidates
from other Member States, Finnish citizenship was required in
the notice. Therefore, nobody except Mr H. stood a real

chance of being recruited. Finally, he claimed that he was not
informed of the nomination made pursuant to the Selection
Procedure COM/R/A/183.

The inquiry

The Commission’s opinion

The complaint was
Commission’s opinion can be summarised as follows:

forwarded to the Commission. The

The Selection Procedure COM/R/A/183, which aimed at
constituting a reserve list for a position of Head of Unit at the
Joint Research Centre in Petten, was
totally transparent,
objective and fair.

The abovementioned reserve list was established by the
Selection Board acting within its margin of discretion. On the
basis of that list, and by applying its discretionary powers, the
Appointing Authority had to select the applicants fulfilling the
required qualifications of the notice.

Five applications were presented. After having examined the
files the Selection Board established that two applicants did not
fulfill the criteria described in the notice. Three applicants were
invited to interviews and the Board unanimously decided to
propose to put Mr H. and Mr K. on the reserve list.

On 9 April 1997, the Selection Board met in Ispra in order to
examine the two applications. The Board declared both
applicants suitable for the position, underlining that Mr H. was
better qualified in the marketing and administration of
research projects for industry. This qualification figured on the
vacancy notice.

The Appointing Authority, within its margin of discretion,
nominated Mr H. for the position. It legitimately applied its
choice between the two applicants.

All three candidates invited to the interview fulfilled the formal
criteria required in the vacancy notice. Contrary to what was
fulfilled the required 15 years of work
alleged, Mr H.
experience.

that Finnish nationality was required was not an
The fact
element which proved that the position was created for Mr H.
Council Regulation (EC) No 626/95 established special
measures by which open competitions can be organised until
31 December 1999, in order to recruit citizens from the three
new Member States.

The Secretariat of the Selection Board claimed to have no
knowledge of a fax sent by the complainant of 15 August
1997.

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Official Journal of the European Communities

C 300/69

The Commission regretted the fact that the complainant was
not notified of the nomination of another candidate to the
position in question and said that it would take the necessary
measures to ensure that this situation did not occur in the
future.

the allegation that

No 626/95 and there appeared to be no evidence to
this possibility had been
support
abused in order to benefit a particular candidate. The
Ombudsman’s
reveal an
instance of maladministration in this aspect of the case.

therefore, did not

inquiries,

The complainant’s observations

3. Alleged loss of a candidate’s fax

In his observations, the complainant maintained his complaint.
As regards the selection procedure, the complainant stated that
there were no grounds to the claim that Mr H. was better
qualified in the marketing and administration of
research
projects for industry.

As to the formal criteria, he alleged that Mr H. did not have
15 years of work experience in all the required fields whereas
he, the complainant, did.

The complainant did not contest the policy to recruit citizens
from the three new Member States, but he alleged that he
knew many European citizens were better qualified for the
position than the selected candidate.

The complainant also maintained his claim that he had sent a
fax to the Commission, but never received any information on
the results of the selection.

The Decision

3.1. The Ombudsman underlined that principles of good
for

administrative
requests
information shall be replied to without undue delay.

conduct

demand

that

3.2. The complainant alleged that he had sent a fax to the
European Commission Secretariat
the Research
Selection Committees on 15 August 1997, requesting
information regarding
the position
concerned. The Commission explained in its first opinion
that it had not found the fax dated 15 August 1997. In
his
his
allegation.

complainant maintained

observations,

filling

the

the

of

of

3.3. The Ombudsman found that there appeared to be no
evidence to contradict the Commission’s claim that it did
not receive the fax. Therefore, the Ombudsman’s inquiries
did not reveal an instance of maladministration in relation
to this aspect of the complaint.

1.

Selection procedure and formal criteria in
COM/R/A/183

4.

Lack of information on the filling of a position

1.1. Article 29(2) of

the Staff Regulations provides that a
procedure other than the competition procedure may be
adopted by the Appointing Authority for recruitment to
posts which require special qualifications.

it

1.2. According to the established case-law of the Court of
Justice,
the Appointing Authority to assess
whether a candidate fulfils the conditions required by the
vacancy notice, and that assessment may be questioned
only in the event of manifest error.

is for

4.1. The Ombudsman

of

that

noted

principles

good
administration require that a candidate to a selection
procedure whose name is on a reserve list receives a
notification of the filling of the position. He also took
note of the fact that the Commission regretted that the
complainant had not been notified of the nomination of
another candidate to the position in question and that it
would take the necessary measures to ensure that this
situation did not occur in the future.

1.3. As regards the selection procedure and the formal criteria
applied in COM/R/A/183,
the Ombudsman’s inquiries
into this complaint indicated that the Selection Board had
acted in accordance with the vacancy notice.

4.2. In view of these findings and taking into account that the
Commission had regretted its
failure to notify the
the necessary
complainant and that
measures to ensure that such failure did not occur in the
future,
the Ombudsman’s inquiries did not reveal any
instance of maladministration.

it would take

1.4. Therefore,

the Ombudsman found no instance of
maladministration regarding the selection procedure and
formal criteria applied by the Selection Board.

Conclusion

2. Nationality requirement

The Selection Board was entitled to impose a nationality
requirement in accordance with Council Regulation (EC)

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the European Commission. The Ombudsman therefore
closed the case.

inquiries

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EN

Official Journal of the European Communities

18.10.1999

ALLEGED FAILURE TO PREVENT DISCRIMINATION IN ACCESS TO
PUBLIC EMPLOYMENT

The Decision

Decision
Commission

on

complaint

272/98/VK against

the

European

The complaint

In March 1997, Mr P. made a complaint to the Ombudsman
against the Commission. He claimed that the Commission had
failed to ensure that the Italian authorities did not discriminate
against non-Italian citizens who were seeking employment as
teachers in South Tyrol and had failed to reply to him about
this matter.

the beginning of 1996,

the complainant, who is an
At
Austrian citizen, had asked the Euro-Jus officer
in the
Commission’s Austrian representation for advice on a matter
of discrimination in access to public employment as a teacher
in the Northern Italian region of South Tyrol. From the
it appeared that German mother tongue
information given,
was a requirement
that due to a
for the employment but
complex points system, non-Italian applicants did not have an
equal chance to get posts.

The Euro-Jus officer investigated the matter and informed the
complainant that his request had been transferred to the Legal
Service of the Commission for further investigation and that
he would receive a reply from the Commission services in
Brussels. However, the complainant did not receive a reply and
complained to the Ombudsman.

The EC Treaty empowers the European Ombudsman to inquire
into possible instances of maladministration only in the
activities of Community institutions and bodies. The Statute of
the European Ombudsman specifically provides that no action
by any other authority or person may be the subject of a
complaint
to the Ombudsman. The Ombudsman’s inquiries
into this complaint were therefore directed towards examining
whether there was maladministration in the activities of the
European Commission.

1. As regards

it appeared that

the failure to reply,

the
Commission had sent a detailed letter of reply to the
complainant on 27 June 1997. The Commission admitted
that the complainant’s letter should have been answered
the
earlier and it
complaint appeared therefore to be settled.

regretted the delay. This aspect of

2. As concerned the requirements

for access

to public
employment in the Province of Bolzano, the Commission
appeared to be aware of the issue and to have contacted
the relevant national authorities. The Italian authorities
replied to the Commission announcing their
formal
commitment to remove all obstacles for European Union
nationals
employment.
Furthermore the Commission undertook to bring the
complainant’s individual case to their attention. It appeared
therefore,
taken
measures to improve the current situation of access to
public employment in general and also in particular, by
making the complainant’s case directly known to the
relevant authorities.

the Commission had actively

to public

regards

access

that

as

The inquiry

The Commission’s opinion

On the basis of
into this
the Ombudsman’s
complaint, there appeared to have been no maladministration
by the Commission. The Ombudsman therefore closed the
case.

inquiries

The complaint was forwarded to the Commission.
In its
opinion, the Commission stated that due to the high number
of complaints received by its services on issues related to
access
the
complainant’s letter had not been answered in due time. This
delay was regretted by the Commission. A detailed letter was
sent to the complainant on 27 June 1997.

to the public service in the Member States,

to employment

Furthermore, the Commission stated that it is fully aware of
the specific problems
in the
for access
Province of Bolzano in South Tyrol. The Commission officially
contacted the Italian authorities on 30 August 1996 on this
topic.
Italy informed the Commission that the
authorities of Bolzano had undertaken to remove all obstacles
for
public
nationals
employment.

European Union

In its reply,

access

for

to

the Commission undertook

In addition,
complainant’s specific case to the attention of
authorities and remind them about their commitment.

to bring

the
the Italian

3.1.4. THE OFFICE FOR OFFICIAL PUBLICATIONS OF THE

EUROPEAN COMMUNITIES

OPOCE: DISTRIBUTION SYSTEM AND PRICING POLICY

Decision on complaint 1077/4.12.96/WG/D/VK/OV against
Office for Official Publications of the European Communities

the

The complaint

In November 1996, Mr G. complained to the Ombudsman
about
the Office for Official
Publications of the European Communities (OPOCE).

the distribution system of

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Official Journal of the European Communities

C 300/71

The complainant
is a supplier of EC documentation in
from OPOCE through the
Germany and receives material
central German supplier, Bundesanzeiger. His main claim is
that, as compared to the former situation in which citizens
could order EC material directly from OPOCE,
the present
can order only from
distribution system in which he
Bundesanzeiger does not function efficiently. In particular, he
alleged that documentation was sometimes not available and
also that prices were too high. He also criticised the access to
documents by Internet, which is not available to all citizens.

The inquiry

OPOCE’s opinion

complainant

The
addressed to the
Ombudsman, to OPOCE. OPOCE transmitted the complaint to
the Ombudsman, together with its opinion on the complaint.

complaint,

sent his

In its opinion, OPOCE stated that it was necessary to supply
publications and documents through a network of national
distributors, since OPOCE itself could not possibly deal with all
orders. This system is also intended to be closer to the citizens.
OPOCE also pointed out
that, given the large number of
publications (15 000 current titles and 700 new publications
every year), it was impossible for all titles to be available at all
times at all
sales points. Therefore it was
understandable that some of the publications the complainant
wanted to order were not
available. However, OPOCE
underlined that it constantly promoted a quick client service.

the national

As regards the cost of documents such as COM documents,
OPOCE observed that prices differ from country to country
due to the different costs of living in the Member States and
the different means used by the national offices. OPOCE added
that,
in the debate between sale and free distribution of
documents, the present policy of the institutions and of most
of the Member States was based on sale. It also observed that
it would soon make available a service of (cid:145)document delivery(cid:146)
centralised by EUDOR, comprising the Official Journal of the
European Communities, COM documents and other collections,
which will apply the same charges for services to citizens in all
the Member States.

As regards access through Internet, OPOCE stated that Internet
access was parallel to, not exclusive of, other means of access
to documents.

The complainant’s observations

Community information and the fact that the present supply
system was not close to the citizen. The complainant further
criticised the fact
sold for profit.
According to him, the European institutions act as commercial
organisations by selling their information, and this is contrary
to the philosophy of a public institution.

information was

that

The Decision

1.

The allegations concerning the supply system and the
problems to obtain certain documents

OPOCE justified the system of distribution through
national offices
supplying the documentation by the
necessity of decentralisation given the impossibility for
the OPOCE to deal alone with all demands.
It equally
underlined that
it constantly promoted a quick client
service. It admitted however that it was impossible for all
documents to be at all times available at all the national
It
offices because of the large number of publications.
appeared to the Ombudsman that
the number of
publications of the OPOCE constituted a valid reason for
certain titles being temporarily unavailable. Therefore, the
the
publications
fact
complainant were not immediately available in Germany
could
of
be
not
maladministration.

considered

instance

certain

asked

that

for

by

an

as

2.

The allegations concerning the price of documents and
the practice of sale of the OPOCE

2.1. The complainant criticised the prices of documents and
the fact that OPOCE sells documents instead of providing
them for free. OPOCE observed that it was the current
policy of the institutions to sell the documents and not to
provide them for free. The Ombudsman noted that the
OPOCE was aware that prices may vary from Member
State to Member State due to the different costs of living
and that
it would soon make available a (cid:145)document
delivery(cid:146) service which will guarantee the same charge for
all citizens.

2.2. Taking into account the aim of covering the costs of the
production and distribution of the documents, it did not
appear
that OPOCE’s pricing policy was based on
arbitrary or unreasonable criteria. Therefore it could not
be considered as an instance of maladministration.

these

In view of
appeared to be no
maladministration by OPOCE. The Ombudsman therefore
closed the case.

findings,

there

In his observations, the complainant repeated his criticisms
to obtain certain European
concerning

difficulties

the

(See also Decision on complaint 269/97/PD against the European
Commission)

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Official Journal of the European Communities

18.10.1999

3.2. CASES CLOSED FOR OTHER REASONS

The inquiry

3.2.1. THE EUROPEAN PARLIAMENT

The Parliament’s opinion

ALLOWANCE SYSTEM FOR MEMBERS OF THE EUROPEAN
PARLIAMENT

on

Decision
971/24.10.96/UK/PD,
complaints
1039/22.11.96/SW/PD, 1111/31.12.96/DK/PD and 48/97/PD
against the European Parliament

joined

The complaints

Between October 1996 and January 1997, the Ombudsman
received four different complaints concerning the allowances
regime that the European Parliament applies to its Members. In
February 1997, the Ombudsman informed the complainants
that their complaints would be dealt with jointly and that the
inquiry would not involve any examination of matters relating
the European Parliament, as the
to individual Members of
mandate of
to
the
Community institutions and bodies.

European Ombudsman is

limited

The complaint was forwarded to the European Parliament. In
its opinion, the Parliament stated that on 10 July 1997 the
Bureau of the Parliament adopted the following decisions:

(cid:145)(cid:151) the setting up of a system for the permanent control of travel
allowances through the production of supporting documents,
to cover all means of transport and all members without
distinction; the proposed modalities of this system would be
established by the Quaestors and submitted to the Bureau for
approval,

(cid:151) as regards entitlement to subsistence allowances in Brussels
to provide henceforth for the signing of a single central
register,

(cid:151) with regard to subsistence allowances during plenary sessions
in Strasbourg, the principle of
linking entitlement to these
allowances with participation in roll-call votes; the Quaestors
would submit
for precise
modalities,

to the Bureau a proposal

(cid:151) agreed in principle to review all aspects of the method of
calculation of the kilometre allowance, including through the
possible introduction of a third band, on the basis of a
proposal to be submitted to the Bureau by the Quaestors.(cid:146)

The general background to the complaints were reports in the
media about
It was
system.
reported that public funds were being spent irregularly.

the Parliament’s allowances

Furthermore, the Parliament stated that on 15 September 1997
the Bureau had adopted the following implementing provision:

this background,

the complainants put

forward in
Against
substance two grievances which were closely linked. The first
grievance was to the effect that the allowances system set up
by the Parliament was illegal and against principles of sound
financial management. It was argued in more detail that the
system set up by the Parliament was meant to circumvent the
rules governing the payment of Members of Parliament.
According to the complainants,
it follows ex contrario from
the Protocol on the privileges and
Articles 21 and 22 of
immunities of
the European Communities and the ensuing
Council Regulation that Members of Parliament shall not be
paid by the Community. The Members are meant to be paid
by the Member State in which they are elected. Again
according to the complainants, as this remuneration system
set up the
appeared to be unsatisfactory,
generous allowances system which served as a hidden form of
pay, because the rules did not make the payment of allowances
conditional on the presentation of supporting documents.

the Parliament

The second grievance was to the effect that the existing rules
were not properly enforced, so that Members of Parliament
received allowances without being requested to justify the
work or the expense that the allowance was meant to cover.

transport,

the supporting document

(cid:145)In the case of Members who have undertaken at least part of the
to be
journey by public
submitted is, for journeys by plane, the boarding card. Should no
boarding card have been issued, the document to be submitted is
the air ticket or a copy thereof. In the case of journeys by train,
the document to be submitted is the rail ticket or, should that
ticket be required for further journey, a copy of the ticket verified
by the Cash Office.

In the case of journeys undertaken by private car, the Member
must submit a personal declaration including the registration
number of his or her car, the kilometre reading at the beginning
and end of the journey, the route taken and the precise location
where the car is parked at Parliament’s place of work.(cid:146)

On 23 October 1997 the President of the Parliament addressed
a note to each individual Member of the Parliament, explaining
the implications of the provision of 15 September 1997. The
note stated inter alia:

(cid:145)I am confident
the
European Parliament has every interest in demonstrating to the

take the view that

that Members will

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the European Union that

citizens of
the amounts payable to
Members in respect of their allowances are subject to adequate
checks and transparency, in line with the resolutions on its own
budget adopted by the Parliament in December 1996 and June
1997.

The Ombudsman also took note of the fact that within the
Parliament, there is a Financial Controller whose task it is,
in accordance with the Community’s Financial Regulations,
to ensure that principles of sound financial management
are observed.

It will

require each Member

In practical terms, the new system will come into effect as from 3
November 1997.
(including the
President) to submit to the Members’ Cash Office proof that each
journey claimed for was actually undertaken. This documentary
proof should cover the major part of journeys actually made. It
will take the form of airline boarding passes for each individual
journey by air,
travel or a personal
declaration when the journey is undertaken by private car or other
means of
transport. The personal declaration for journeys has
been drawn up in such a way as to enable it to be checked. In the
very rare cases where it is not normal practice for an airline to
issue boarding passes, a copy of the relevant airline ticket must be
submitted.(cid:146)

railway tickets

rail

for

Finally, on 15 and 16 December 1997 the Bureau of
the
Parliament established the following provision concerning
Members’ entitlement to daily allowances:

(cid:145)The daily allowances of Members absent for more than half of
all the roll-call votes taken on the Tuesdays, Wednesdays and
Thursdays of part-sessions held in Strasbourg and on the
Thursdays of part-sessions held in Brussels will be reduced by
50 %. Members are entitled to signify that they were present in
the event that they did not wish to participate in a roll-call vote.(cid:146)

It shall be noted that the mentioned week days are the days
when legislative matters are discussed. In addition, Members
lose
who are present for only half the plenary session will
50 % of their general expenses. According to the Parliament,
the result of these measures is that the European Parliament
will become the most demanding parliament in the European
Union as regards the attendance of its Members at plenary
sessions.

The complainants’ observations

The observations lodged were to the effect that it was good
that
the Parliament had adopted new rules on the subject
matter. However, concern was expressed to the effect that the
new rules apparently do not contain sanctions to be imposed
on Members who do not comply with the rules.

The Decision

1.

It appeared that in the light of the public criticism and the
complaints lodged, the European Parliament proceeded to
a reform of
the relevant rules as indicated above. The
complainants, who had lodged observations, appeared
happy about
in
accordance with good administrative behaviour.

that. Such reforms

appear

to be

2.

In most national Ombudsmen’s offices it is provided or an
established practice that the Ombudsman does not inquire
further when it appears that a specialised control instance
is inquiring into the same matter, the reasoning being that
the instance with a general remit should give way before
the specialised instance.

It appeared that the Court of Auditors was conducting an
audit of the Parliament ’s expenses and allowances system.

It
this
is worth recalling briefly the characteristics of
Community institution, set up by the Treaty establishing
the European Community.

According to Article 188a of
Auditors is responsible for carrying out audits of
Community finances, and Article 188b provides that:

the Treaty the Court of
the

(cid:145)The Members of the Court of Auditors shall, in the general
interest of the Community, be completely independent in the
performance of their duties.

In the performance of these duties, they shall neither seek nor
take instructions from any government or from any other
body. They shall refrain from any action incompatible with
their duties.(cid:146)

the Court of Auditors

Thus,
in
carrying out its task. Article 188c of the Treaty specifies in
more detail the task and the powers of inquiry which the
Court has. Article 188c provides inter alia:

fully independent

is

The Court of Auditors shall examine the accounts of

(cid:145)1.
a l l revenue and expenditure of the Community (cid:133)

The Court of Auditors

examine whether all
2.
revenue has been received and all expenditure incurred i n a
l a w f u l a n d r e g u l a r m a n n e r a n d w h e t h e r
t h e
f i n a n c i a l m a n a g e m e n t h a s b e e n s o u n d (cid:133)

shall

3.
The audit shall be based on records and, if necessary,
p e r f o r m e d o n t h e s p o t in the other institutions of the
Community and in the Member States (cid:133)(cid:146)
(The Ombudsman’s underlining).

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Thus, as to the questions of regular spending of public
funds and principles of sound financial management, the
Court of Auditors must be considered a specialised
instance. According to the information available, the audit
that the Court of Auditors was conducting at the time,
the allowances and
concentrated on an evaluation of
expenses system, including an examination of the system’s
conformity with the Parliament’s relevant Regulation, with
Community Financial Regulations and with principles of
sound financial management. The results of the audit were
to be laid down in a report which would be made public
in due course.

Against this background, the European Ombudsman did not
justified. The Ombudsman
consider any further
therefore closed the case.

inquiries

3.3. CASES SETTLED BY THE INSTITUTION

3.3.1. THE EUROPEAN PARLIAMENT

RECRUITMENT: NEGATIVE RESULTS OF THE MEDICAL
EXAMINATION

Decision on complaint 1021/14.11.96/NLP/ES/JMA against
European Parliament

the

The complaint

In November 1996, Ms L. C. complained to the Ombudsman
concerning the decision of the European Parliament not to
appoint her to a vacant post on the basis of negative medical
advice.

the

1994,

Commission

The complainant took part in inter-institutional competition
In
EUR/B/27 in 1993 and was placed on a reserve list.
September
services
European
responsible for Personnel and Administration (DG IX) invited
her to undergo a medical examination in Brussels. The results
of
the medical examination were never forwarded to the
complainant. In February 1996, Ms L. C. was interviewed by
the European Parliament with a view to filling a vacancy. Soon
after, the Parliament’s recruitment service made an offer of
employment to the complainant by telephone.

the Staff Regulations (1); that her rights as a candidate for a
post in the EC institutions had not been respected; and that
the decision taken by the Parliament was apparently based on
the results of a medical test performed in 1994, therefore well
beyond the validity period (six months) established in the
Parliament’s recruitment policy for this type of procedure.

The inquiry

The Parliament’s opinion

The complaint was forwarded to the Parliament. In its opinion,
the Parliament pointed out that the decision not to select the
complainant for the vacancy was based on the negative results
of the medical examination carried out by the Commission’s
Medical Service.

The Parliament expressed regret that the results of that medical
examination were not forwarded to the complainant. As a
result she did not have the opportunity to contest the negative
results as required by Article 33 of Staff Regulations. The
Parliament, however, considered that it had no responsibility in
that failure.

In a covering letter to the opinion,
the
European Parliament indicated that although no vacancies were
available at the moment, the complainant would be invited to
undergo a new medical examination to be carried out by the
medical services of the European Parliament.

the President of

The complainant’s observations

In her observations, Ms L. C. agreed to the solution proposed
in the President’s letter that she should undergo a new medical
examination. Since the Parliament had indicated that
the
examination should be
(cid:145)with all necessary
guarantees(cid:146), the complainant made some further requests as
regards some particular aspects of the examination.

carried out

The Decision

Not having received any further written communication, Ms L.
C. contacted the Parliament in April 1996. She was informed
that the vacancy had been offered to another candidate. The
decision had been taken on the basis of the negative results of
the medical examination Ms L. C. had undergone.

The complaint to the Ombudsman alleged that the institutions
concerned did not comply with the provisions of Article 33 of

It appeared from the Ombudsman’s inquiry, that the European
Parliament had taken steps
to the
satisfaction of
the complainant. The Ombudsman therefore
closed the case.

to settle the matter

(1)

(cid:145)Before appointment, a successful candidate shall be medically
examined by one of the institution’s medical officers [(cid:133)]. Where a
negative medical opinion is given as a result of
the medical
examination [(cid:133)],
the candidate may, within 20 days of being
notified of this opinion by the institution, request that his case be
submitted for the opinion of a medical committee [(cid:133)](cid:146).

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FAILURE TO PROVIDE CONTRACT DOCUMENTS IN THE
LANGUAGE OF THE TENDERER

Decision on complaint 606/97/VK/OV against
Parliament

the European

The complaint

furniture

to the European Parliament

In June 1997 Mr Z. complained to the Ombudsman on behalf
of a Dutch carpentry firm. Mr Z. read an official notice
for tenders to
published in a Dutch newspaper of a call
provide
the
for
conference rooms of
the Leopold building in Brussels. He
asked for the contract documents which were sent to him in
French not Dutch. He contacted the Parliament’s
services
which confirmed that the contract documents existed only in
French. In his complaint to the Ombudsman, Mr Z. alleged
that, in order to guarantee equality between them, tenderers
should receive the contract documents in their own language.

The inquiry

The Parliament’s opinion

The complaint was forwarded to the Parliament. In its opinion,
the Parliament first observed that the call for tenders had been
published in the Official Journal of the European Communities of
27 May 1997, as well as in national newspapers including a
Dutch newspaper.

that

As regards the linguistic requirements of the notices of the call
for tenders, the Parliament referred to Article 9 of Council
Directive 93/36/EEC of 14 June 1993 coordinating procedures
the award of public supply contracts (1). This Article
for
provides
the tender notice by which a contracting
authority wishes to award a public supply contract shall be
published in full
the European
language, and a summary of the
Communities in its original
important elements of each notice shall be published in the
official languages of the Communities, the text in the original
language alone being authentic. The Parliament concluded
therefore that the tender notice in the present case, which had
been published in all the official languages of the Union, had
respected those requirements.

in the Official

Journal of

As regards the contract documents, the Parliament observed
that the national contracting authorities have no obligation
under Community law to translate them, and that, as regards
public procurement by the Community institutions where the
contract documents are often voluminous, the practice of the
to
Parliament and of other institutions had also been not
translate the contract documents. Therefore the contract
documents in the present case were only available in French.

(1) OJ L 199, 9.8.1993, p. 1.

For

this

reason,

languages.

and Tenders

The Parliament observed, however that it was aware that this
pragmatic approach did not allow the Community institutions
to respect the principle of equality of treatment between the
the Advisory
Community
Committee on Purchases
adopted on 27
November 1997 a recommendation (CCAM No 4 (cid:151) 1997) on
languages for its own tenders. The
the use of
Parliament
this
that,
it will take all the necessary measures in
recommendation,
the
order to ensure that,
the official
contract documents will be available in all
languages of the Union. It finally observed that the tenderers
can always submit their tenders in the official language of their
choice.

the official
concluded

the essential parts of

conformity with

in future,

in

The complainant’s observations

No written observations were received from the complainant.
However, he informed the office of
the Ombudsman in a
telephone conversation that, given that the contract documents
were not available in Dutch, he had been unable to submit a
tender. He nevertheless observed that his complaint had led to
a positive result, given that the Parliament had announced it
would change its practice for the future.

The Decision

The failure of the Parliament to provide the complainant
with contract documents in the Dutch language

1.

tenders by Community institutions,

In the field of
the
general principle of non-discrimination on the basis of
is
in Article 6 of
nationality, set out
repeated in Article 62 of the Financial Regulation, which
provides that (cid:145)in respect of contracts entered into by the
Communities,
there shall be no discrimination between
nationals of Member States on grounds of nationality(cid:146).

the EC Treaty,

2. As

that

regards

the fact

to respect

its practice not

the principle of non-discrimination,

the
the Parliament expressed its
Ombudsman noted that
to translate
awareness of
this
contract documents did not allow it
principle. Therefore
the Ombudsman welcomed the
initiative of the Parliament which led on 27 November
1997 to the adoption by the Advisory Committee on
the recommendation (CCAM
Purchases and Tenders of
No 4 (cid:151) 1997) on the use of the official languages for its
own tenders. For the European citizens,
it contains the
valuable recommendation that the contract documents sent
by the institution to a person or company subject to the
jurisdiction of a Member State shall in principle be drafted
in the language of that State, or in the language used in
the request.

3.

It was regrettable that the complainant could not take part
in the tender because he did not get
the contract
documents in his own language, which might constitute an
infringement of the principle of non-discrimination on the
basis of nationality. However, it appeared from the above

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Official Journal of the European Communities

18.10.1999

that the Parliament had reacted positively and promptly to
this complaint and was going to change its practice as
the contract documents. This will enable the
regards
complainant,
to participate under
equal conditions
in future tenders organised by the
Parliament.

like other

tenderers,

Therefore, it appeared from the European Parliament’s opinion
and the complainant’s observations that the Parliament had
taken steps to settle the matter and satisfy the complaint. The
Ombudsman therefore closed the case.

3.3.2. THE EUROPEAN COMMISSION

STATE AIDS: ENFORCEMENT OF COMMUNITY LAW BY THE
COMMISSION

Decision
on
European Commission

complaint 852/3.9.96/SJB/UK/IJH against

the

The complaint

to the Ombudsman against

In August 1996, S. J. B. (cid:151) a firm of solicitors (cid:151) made a
the Commission on
complaint
behalf of their clients Ladbroke. The complaint concerned the
Commission’s dealings in relation to alleged State aid granted
by the French authorities to undertakings in the French racing
and betting industries.

J. B. originally asked for the complaint

S.
to be treated
confidentially, but later wrote to confirm that Ladbroke’s name
could be disclosed in the Ombudsman’s decision closing the
case.

According to the complainant, Ladbroke made a number of
complaints to the Commission between 1989 and 1995 about
alleged State aids granted by the French authorities to French
racing associations and to the Pari Mutuel Urbain (PMU).
Ladbroke considered that, according to Article 93(3) of the EC
Treaty,
these State aids should have been notified to the
Commission before implementation, leading to a decision by
the Commission, under either Article 93(2) or (3), as to their
compatibility with the common market.

The complaint to the Ombudsman referred specifically to three
complaints which S. J. B. had made to the Commission on
behalf of Ladbroke:

(a) A complaint made by fax dated 23 December 1992,
concerning a grant of FRF 600 million which had not been
notified to the Commission by the French Government as
a State aid. By letter dated 12 May 1993, the Commission
(DG IV) informed S. J. B. that the complaint would be dealt
with under the number NN 35/93. S. J. B. received no
further response from the Commission during the next
three years.

according to press reports, the PMU was to receive over
received no response from the
five years. S.
Commission to this complaint.

J. B.

(c) A complaint made by letter dated 27 March 1995,
concerning a further grant of FRF 450 million to the
French racing associations and the PMU which had been
reported in the press. S. J. B. received no response from
the Commission to this complaint.

J. B. claimed that

S.
the Commission had failed both to
investigate Ladbroke’s complaints and to enforce the obligation
imposed on Member States by Article 93(3) of the EC Treaty
to notify all new State aids to the Commission.

S.
J. B. also informed the Ombudsman of certain other
complaints that it had made to the Commission concerning
other incidents of alleged State aid granted by the French
authorities to French racing and betting undertakings. These
complaints were the subject of judicial proceedings before the
Court of First Instance, or in national courts. S. J. B. made no
complaint to the Ombudsman in respect of the Commission’s
handling of these complaints and, in accordance with Article
138e of the EC Treaty and Article 1(3) of the Statute of the
Ombudsman, they did not form part of the Ombudsman’s
inquiry.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission which sent
its opinion on 28 November 1996. In summary the opinion
made the following points:

(i)

The subject-matter of the complaint concerned French tax
legislation in relation to racing betting levies, which was
amended by five Decrees issued between March 1993 and
December 1995. Six requests for information to clarify
the matter were sent to the French authorities between
January 1993 and November 1995.

(ii) Before taking a formal decision on Ladbroke’s complaint

it was first necessary to:

(cid:151) review the successive amendments

to the French

legislation,

(cid:151) ensure consistency in the Commission’s response by
considering other State aid cases of a comparable
nature,

(cid:151) verify whether the measures complained of are in fact
form of economic

State aids, or a more general
regulation through taxation.

(b) A complaint made by letter dated 25 August 1994,
concerning a further FRF 1 500 million of aid which,

The complaint required in depth examination and the
Commission’s staff were engaged in that operation.

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Official Journal of the European Communities

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(iii) Contrary to the situation where aids have been notified,
the Commission is under no obligation to respond within
a predetermined time. Moreover the complainant is not
without redress since he can proceed in the national
courts.

It appeared from the complainant’s observations on this
further information from the Commission that they accepted
that the concerns about possible maladministration expressed
in his original complaint had been satisfied by the opening of
a formal investigation under Article 93(2).

The complainant’s observations

The observations referred to a press release (IP/97/40) issued
by the Commission on 22 January 1997, which mentioned the
complaint by Ladbroke and indicated that the Commission had
decided to seek explanations
from the French authorities
concerning the nature of French horserace betting measures.

the progress of

they expressed concern that

However,
the
formal investigation should not be allowed to drift indefinitely,
particularly in view of the absence of any binding time limits
in the Commission’s procedures. They stated that a further
to the Ombudsman might be made in case of
complaint
excessive delay by
its
investigation under Article 93(2).

the Commission in concluding

S. J. B. understood from this press release that the Commission
had decided to open a formal procedure under Article 93(2) of
the EC Treaty to investigate whether the measures constitute
unlawful
the
Commission’s procedure took into account only Ladbroke’s
complaint dated 23 December 1992 or whether it also took
into account the complaints dated 25 August 1994 and 27
March 1995.

they queried whether

aid. However,

state

The observations also made, in substance, the following points:

The Decision

1. Article 155 of the EC Treaty establishes the role of the
Commission as the (cid:145)guardian of the Treaty(cid:146). As guardian of
the Treaty, its duty is to ensure that the provisions of the
Treaty and the measures taken by the institutions pursuant
thereto are applied. In the case of a new State aid which
has not been notified in accordance with Article 93(3) of
the EC Treaty, the Commission is empowered to apply the
procedure of Article 93(2) (1).

(i) Although certain of the Treaty provisions concerning State
aids have direct effect and thus can be enforced in national
the Commission has exclusive jurisdiction to
courts,
determine whether an aid is compatible with the common
market,

2.

In dealing with a complaint in the field of State aids, the
sound
Commission is
administration of
the Treaty
relating to State aid, to conduct a diligent and impartial
examination of the complaint (2).

in the
the fundamental rules of

interests of

required,

(ii) The Commission maintained

actively
it had last
investigating Ladbroke’s
communicated with the
French authorities on 21
November 1995, more than a year prior to its decision to
institute formal proceedings.

that
complaints, but

it was

Further inquiries

In response to a request
from the Ombudsman to clarify
which of Ladbroke’s complaints were covered by the formal
investigation, the Commission forwarded a copy of its letter to
the French authorities setting out
its decision to open the
procedure under Article 93(2). This letter, dated 4 February
1997, was published in the Official
the European
Communities (1997 C 163/5).

Journal of

The Commission subsequently provided further clarification to
the Ombudsman. This was to the effect that the letter to the
French authorities mentioned not only the Decrees relevant to
Ladbroke’s complaint dated 23 December 1992, but also those
relating to its complaints dated 25 August 1994 and 27 March
1995. Furthermore, the letter also covered aid, referred to in a
press release dated 10 December 1992 issued by the French
Ministry of Agriculture.

3. On 4 February 1997,

the Commission began a formal
investigation under Article 93(2) of Ladbroke’s complaints
concerning State aids to the French racing and betting
the
industries. The investigation appeared to cover all
matters which were the subject of the complaint to the
Ombudsman.

the

that

4. The Ombudsman understood
that

complainant
accepted
possible
maladministration expressed in the original complaint to
the Ombudsman were satisfied by the opening of
the
investigation under Article 93(2) on 4 February
formal
1997.

the
about

concerns

5.

It appeared from the European Commission’s comments
and the complainant’s observations that the Commission
had taken steps to settle the matter and had thereby
satisfied the
complainant. The Ombudsman therefore
closed the case.

(1) Case 173/73 Italy v Commission [1974] ECR 717.
(2) Case C-367/95 P, Commission v Chambre syndicale nationale des
entreprises de transport de fonds et valeurs (Sytraval) and Brink’s
France SARL, judgment of 2 April 1998, paragraph 62.

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ALLEGED LACK OF INFORMATION FURTHER TO TELEPHONE
CONVERSATIONS

Decision on complaint 1128/31.12.96/MH/L/(VK)OV against the
European Commission

crocodile meat
from South Africa; and 3. regulations on
kitchen equipment for restaurants. As regards the first topic,
the Commission also enclosed the Opinion of the Scientific
Committee for Food expressed on 7 June 1996 and indicated
that after a telephone conversation between an official of DG
III and the complainant, documentation on this matter had
been sent to the latter on 29 April 1997.

The complaint

The complainant’s observations

In December 1996, Mr H., a journalist, complained to the
Ombudsman concerning an alleged lack of information from
the Commission. Mr H. tried on several occasions to obtain
from the Commission information about 1. BADGE, a
dangerous substance in tinned food; 2.
trade and
consumption of crocodile meat from South Africa; and 3. new
restaurants. The
regulations on kitchen equipment
telephone
a
claimed
complainant
conversations, he had been transferred from one Commission
official to another, without receiving any concrete information.
Mr H. did not indicate which services of the Commission he
had contacted in order to obtain this information.

for
series

import,

that,

of

in

The inquiry

The Commission’s opinion

complaint was

In
the Commission’s opinion made the following

forwarded to the Commission.

The
summary,
points:

In principle, journalists should address requests for information
to the Spokesman’s Service, which is the Commission service
responsible for giving information or interviews to journalists.
The Commission also commented that
it could not verify
which steps the complainant had taken in order to obtain the
requested information, given that it was impossible to identify
the telephone conversations the complainant had had with its
services.

the
it

in order

However, the Commission observed that it was prepared to
complainant.
requested information to the
provide
Therefore
to obtain general
indicated that,
information, the complainant could contact the Spokesman’s
Service, for which it gave the telephone number. As concerns
access to specific documents, the Commission referred to the
rules laid down in Commission Decision 94/90/ECSC, EC,
Euratom of 8 February 1994 on public access to Commission
documents (1) and indicated, for the three different topics on
which the complainant requested information, the names and
telephone numbers of the officials in Directorates III, VIII and
XI respectively responsible for those matters.

The Commission’s
opinion
information on 1. BADGE in tinned food; 2.

provided

also

some

basic
import of

(1) OJ L 46, 18.2.1994, p. 58.

No observations on the Commission’s opinion were received
from the complainant. However, in a telephone conversation
the complainant declared that he was satisfied with the final
response of the Commission and the documentation that had
been sent to him.

The Decision

1. Alleged lack of information further to the initial

telephone conversations

in a series of

1.1. According to the information contained in the complaint,
Mr H. had been transferred,
telephone
conversations, from one Commission official to another
without
In its
opinion, the Commission observed that journalists should
make their requests for information to the Spokesman’s
Service, which is
the service responsible for giving
information and interviews to journalists.

receiving any concrete

information.

1.2. As a matter of good administrative behaviour,

the
Commission should ensure that its officials deal properly
with requests for information by telephone from citizens,
i.e. by indicating the procedures
to follow and the
responsible services to contact. The Commission should
in particular avoid that the citizen remains without an
answer to his/her request. However, given that
in the
present case the Commission indicated in its comments
to contact
the possibility for
the
Spokesman’s Service for general
information, and gave
the names of the officials to be contacted in the different
Directorates-General for specific information, no further
actions by the Ombudsman seemed necessary.

complainant

the

2.

Positive response from the Commission to provide the
requested information

2.1. In its opinion,

and

the Commission declared that

it was
prepared to provide the information requested to the
complainant
information
concerning the three subjects (1. BADGE in tinned food;
import of crocodile meat from South Africa; and 3.
2.
regulation on kitchen equipment
for restaurants). The
Commission suggested to the complainant that he could

some basic

supplied

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Official Journal of the European Communities

C 300/79

contact
respectively for general or specific information.

the Spokesman’s Service and several officials,

comments and the
the Commission had taken
to settle the matter and had thereby satisfied the

It appeared from the Commission’s
complainant’s observations that
steps
complainant. The Ombudsman therefore closed the case.

the time of the complaint

At
to the Ombudsman in May
the complainants had received no further payments
1997,
from the Commission, more than a year after the project had
been completed and stated that their financial situation was
becoming desperate. They asked the Ombudsman whether the
Commission had any deadline for late payments, and requested
his intervention to ensure that the final payment was promptly
made.

LATE PAYMENT OF COMMISSION’S CONTRIBUTION TO A
PROJECT

Decision
Commission

on

complaint 384/97/JMA against

the European

The complaint

In May 1997, Mr M. and Mrs. H. complained to the
Ombudsman on behalf of the European Nature Heritage Fund
(ENHF). The complaint alleged unjustified delay by DG VI of
the Commission in paying its contribution to a project carried
out by ENHF.

In June 1993, DG VI granted an amount of ECU 660 473 to
ENHF to carry out one particular aspect of the Project (cid:145)Article
in relation to (cid:145)Proyecto piloto y de
8 93.ES.06.002(cid:146)
demostraci(cid:243)n de aprovechamiento duradero de pastizales
arbolados en el oeste de Espaæa(cid:146) (1).

ENHF completed the project at the end of March 1996 and
submitted the necessary technical and financial reports to the
Commission in May 1996,
to obtain the final
payment. (The Commission had already paid ESP 73 755 269.)

in order

In June 1996, an official from DG VI requested some changes
in the presentation of the project’s final reports, which were
forwarded by the complainants in June 1996. Thereafter the
complainants contacted the Commission on several occasions
to request that the final payment be made.

The Commission replied in February 1997 requesting a
modification of the project’s financial report. Although they
considered that the original report was in conformity with the
guidelines for the completion of the project, the complainants
forwarded a new financial report to the Commission in April
1997.

(1) Commission Decision C(93) 1605.

The inquiry

The Commission’s opinion

In its
The complaint was forwarded to the Commission.
opinion, the Commission stated that it had co-financed the
complainants’ project on the basis of Article 8 of Regulation
(EEC) No 4256/88. Payments for the project had been made in
three instalments: in August 1993, May 1995 and July 1997.
The final payment had been delayed because of the need to
check some financial
information concerning the project.
Decision C(93) 1605, which set out the rules governing the
project, established that final payments can only be made once
the
approved the
technical and financial reports submitted by the contractor.
Annex II to the Decision authorises the Commission to request
all relevant information from the contractor. In this particular
case,
the Commission services had to request additional
information from the complainants on different occasions.

competent Commission services have

the

However, the length of the delay in making the final payment
consequence of a review carried out by the
was
Commission of all projects
financed under Article 8 of
Regulation (EEC) No 4256/88, following critical remarks made
by the Court of Auditors. This review entailed a substantive
increase in the workload of the Commission’s services.

The Commission underlined that once it had received the new
report from the complainants in April 1997, drawn up in line
with its new guidelines, it had cleared the final payment within
two months.

Additional information sent by the complainants

Before the Ombudsman received the Commission’s opinion,
the complainants sent additional information by letters dated
June and July 1997. The first letter referred to their contacts
with different services of
the Commission with a view to
finding out the situation of the final payment for their project.
the
Although final payment
Commission had also pointed out to the complainants that it
was within their power to block payments in case of doubt. In
view of this statement, the complainants questioned in their
letter to the Ombudsman whether there should be a deadline
to limit that power.

seemed to be on its way,

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Official Journal of the European Communities

18.10.1999

In their letter of July 1997, the complainants stated that they
had now received the final payment. They also stated that
unless the Commission modifies its way of dealing with
non-governmental organisations,
they would be unable to
participate in any other project. The complainants also
thanked the Ombudsman for his efforts to achieve a successful
solution to their problem.

The Ombudsman forwarded the Commission’s opinion to the
complainants with an invitation to make observations, but
none were received.

The Decision

On the basis of the information provided by the complainants
and the Commission, the Ombudsman concluded that the case
had been settled by the Commission. The Ombudsman
therefore closed the case.

FAILURE TO KEEP A COMPLAINANT INFORMED OF
DEVELOPMENTS CONCERNING HIS COMPLAINT

Decision
Commission

on

complaint 596/97/JMA against

the European

The complaint

In June 1997, Mr D. M. complained to the Ombudsman on
behalf of an environmental group, CER. He alleged that the
Commission had failed to inform CER of any developments
concerning a complaint which it sent to the Commission in
May 1996.

to

complaint

concerned

the Commission

CER’s
the
authorisation granted by the Spanish authorities for mining
exploitation in Montes Obarenes-Toloæo, La Rioja. This area
had been classified by the Spanish authorities as a Special
Protection Area (SPA) for the protection of birds. On 5 June
1996, the Commission informed CER that the complaint had
been registered under file number 96/4370 SG(96)A/8475, but
had not subsequently forwarded any further information.

The inquiry

The Commission’s opinion

The complaint was
Commission’s opinion was in summary the following:

forwarded to the Commission. The

As a preliminary aspect,
complaint

had

not

the Commission claimed that
been

the
appropriate

preceded

by

administrative approaches, as required by Article 2(4) of the
Statute of the Ombudsman. The Commission considered that
the complainant had not taken any initiative to contact its
services after having lodged his initial complaint.

in the standard complaint

As regards the substantial aspects of the case, the Commission
referred to its general obligations towards complainants, as set
form (1). These obligations
out
involve: (i) sending an acknowledgement of receipt once the
complaint is received; (ii) informing the complainant of any
action taken in relation to the complaint; as well as (iii) of the
decision to launch infringement proceedings against
the
responsible Member State.

the

Since

the complainant’s

In relation to this particular case, the Commission explained
that
letter of 3 May 1996 had been
registered as a complaint on 10 May 1996 (complaint file
96/4370).
of Council Directive
provisions
79/409/EEC of 2 April 1979 on the protection of wild
birds (2), and Council Directive 92/43/EEC of 21 May 1992 on
the conservation of natural habitats and wild fauna and
flora (3) could be relevant to the case, a request for comments
was sent to the Spanish authorities on 25 July 1996. The
Commission explained that, in cases in which the information
submitted by the complainant is sparse, any further assessment
of
the information
submitted by the national authorities.

the case is undertaken in the light of

In the absence of any reply by the Spanish authorities within
the established two-month period, a first reminder was sent on
25 October 1996, and a second one on 12 February 1997.
Not having received any reply, Commissioner Bjerregaard
wrote to Ms Tocino, Spanish Minister for the Environment on
18 March 1997. The reply from the Spanish authorities was
finally received by the Commission on 2 June 1997.

On the basis of
the explanation given by the Spanish
authorities, the Commission reviewed the case and then asked
the complainant for observations in a letter of 7 July 1997. In
his reply of 25 August 1997, the complainant agreed with the
assessment carried out by the Commission, and explained that
the project at the origin of his complaint had been suspended
as a consequence of the Commission intervention.

The complainant’s observations

The Ombudsman forwarded the Commission’s comments to
the complainant with an invitation to make observations. The
reply from the complainant indicated that the project had been
suspended, and that the Spanish authorities had ordered that a
new environmental
the project be
undertaken. In view of this, the complainant believed that his
position had been correct all along, and that the authorisation
given to the project was illegal.

impact assessment of

(1) OJ C 26, 1.2.1989, p. 6.
(2) OJ L 103, 25.4.1979, p. 1.
(3) OJ L 206, 22.7.1992, p. 7.

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The complainant asked the Ombudsman not to close the case
until the procedure for the authorisation of the project has
been completed by the Spanish authorities,
full
compliance with European Community law could be ensured.

so that

The Decision

1. Admissibility of the case

1.1. As

that

regards

argument

it must be

the Commission’s

the
complainant had not previously complained to the
institution,
the
Ombudsman to decide whether a complaint is admissible
or not. Community institutions and bodies are naturally
welcome to make their views on the subject known to
the Ombudsman.

stressed that

for

is

it

1.2. In order to be admissible, a complaint must be preceded
to the
by the appropriate administrative approaches
institutions and bodies concerned (Article 2(4) of
the
Statute). In view of the different linguistic versions of this
text (1), and taking into account
the
provision, the practice of the Ombudsman has been to
evaluate whether suitable administrative approaches have
been made depending on the circumstances of each case.

the objective of

1.3. In view of the fact that the case related to the failure of
the Commission to keep a complainant
informed for
more than a year of developments relating to his case,
and since it would be reasonable to expect that such
information was forwarded to complainants without a
prior request, the Ombudsman considered that the criteria
for the admissibility of
the complaint had been met,
without further administrative approaches.

the Commission described in detail

2.2. In the context of the Ombudsman’s own initiative inquiry
303/97/PD (2),
its
policy on informing the complainant of the action taken
in response to his complaint. It explained that: (cid:145)Once the
complaint has been registered, the complainant is informed of
including
the action taken in response
representations made to the national authorities concerned(cid:146).

complaint,

to his

2.3. On the basis of that commitment,

towards

numerous

approaches

it would have been
proper for the Commission to inform the complainant of
its
authorities
concerned. The Ombudsman noted, however, that as a
result of all these approaches (cid:151) including a personal
the
from the Commissioner
letter
in charge
environmental portfolio to the
responsible national
Minister (cid:151) the allegedly illegal project was cancelled, and
thus the problem had been solved.

the

of

It had to be concluded therefore that the Commission
took the necessary steps to settle the matter to the
complainant’s full satisfaction.

3. Complainant’s request to keep the case open

3.1. The Ombudsman is empowered to inquire into possible
instances of maladministration only in the activities of
Community institutions and bodies. The Statute of the
Ombudsman specifically provides in Article 2(1), that no
action by any other authority or person may be the
subject of a complaint to the Ombudsman (3).

3.2. The Ombudsman’s inquiries into this complaint were
therefore directed towards examining whether there had
the
been maladministration
in
Commission.
the
It was not within the
Ombudsman to assess compliance with Community law
of on-going
Spanish
activities undertaken by
authorities.

of
remit of

activities

the

the

2.

Failure of the Commission to keep the complainant
informed

Conclusion

2.1. The Commission had justified its failure to forward any
information to the complainant from May 1996 to July
1997 on the grounds that the Spanish authorities had not
replied to the letters and reminders sent by the institution
requesting their comments on the matter.

seems

(cid:145)There

language versions of

(1) As stated in the Ombudsman’s previous decision on Complaint
to be a slight discrepancy
45/26.7.95/JPB/PD/B-dk:
between the different
this provision. The Danish
version quite rightly uses the term (cid:147)fornłdne(cid:148) and gives the impression
that such administrative approaches are necessary. On the other hand, for
instance the English, French, German, Spanish and Swedish versions use
the
(cid:147)adecuadas(cid:148) and
(cid:147)l(cid:228)mpliga(cid:148) respectively which seems to imply that suitable administrative
approaches must be made(cid:146). (European Ombudsman, Annual Report
1996, page 45).

(cid:147)appropriate(cid:148),

(cid:147)appropriØes(cid:148),

(cid:147)geeigneten(cid:148),

terms

On the basis of the information provided by the complainant
and the observations
the
Ombudsman concluded that the case had been settled by the
Commission to the
satisfaction. The
complainant’s
Ombudsman therefore closed the case.

submitted by the Commission,

full

(2) Own initiative
inquiry into the Commission’s administrative
procedures
in relation to citizen’s complaints about national
authorities (see European Ombudsman, Annual Report 1997, p.
270).
(3) Statute of

(cid:145)Within the
the European Ombudsman, Article 2(1):
framework of the aforementioned Treaties ((cid:133)) the Ombudsman shall help
to uncover maladministration in the activities of
the Community
institutions and bodies ((cid:133)). No action by any other authority or person
may be the subject of a complaint to the Ombudsman.(cid:146)

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18.10.1999

3.3.3. THE OFFICE FOR HARMONISATION IN THE INTERNAL

MARKET

merits and their experience. Only 75 candidates were included
in the final list; (d) the last stage consisted of an oral test.

COMPETITION FOR TEMPORARY AGENTS: NO SELECTION OF A
CANDIDATE

The complainant was not selected for the oral tests because of
his limited professional experience, since he had only worked
for the Spanish local administration.

Decision on complaint 1016/13.11.96/ALG-PL/ES/JMA against the
Office for Harmonisation in the Internal Market

The complaint

Having completed the recruitment procedure,
the Selection
Board sent a letter to all candidates informing them of the
outcome. Non-selected applicants who had submitted formal
complaints were informed of the reasons for their exclusion.

In November 1996, Mr P. L. made a complaint alleging lack of
transparency in the way the Office for Harmonisation in the
Internal Market
(OHIM) had conducted open competition
AT/C, and the failure to provide any explanation to candidates
who had not been selected.

The Office also stressed that the complainant did not contest
his exclusion by the Selection Board, but merely inquired
about the reasons for the decision. Consequently, his letter had
not been considered as a complaint.

Mr P. L. initially complained to the Regional Ombudsman of
Valencia ((cid:145)Sindic de Greuges de la Comunitat Valenciana(cid:146)), who
transmitted the complaint to the European Ombudsman.

Mr P. L. took part in a competition for temporary agents
organised by the OHIM in November 1995. After
a
the Selection
preliminary screening of all
Board did not admit him to the oral tests, informing him of
this in a standard letter.

the applications,

In April 1996, Mr P. L. wrote to the OHIM, underlining that
he was not complaining against the decision taken by the
Selection Board, but rather requesting further information on
the selection process and the reasons for his exclusion.

The reply from OHIM was considered by the complainant to
be very general and to lack any clear reasoning.

The inquiry

The OHIM’s opinion

The complaint was forwarded to the OHIM. In its opinion, the
OHIM pointed out that the competition was not a general
competition for the recruitment of EC officials, but only a
selection of temporary agents for secretarial posts (C grade).
Accordingly,
rules governing the
are no general
organisation of this type of special competition for temporary
the selection process was
agents. According to the OHIM,
carried out with due respect
the principles of equal
treatment, transparency and geographical balance.

there

for

There were four stages in the process: (a) the OHIM sent an
application form to all those who expressed their interest to
participate; (b) out of 726 applications forms sent, 393 replies
were received and registered. Out of those applications, 255
(c) the Selection Board
dossiers were considered admissible;
the candidates’
then carried out a comparative analysis of

The Ombudsman forwarded the OHIM’s opinion to the
complainant, who did not make any observations.

The Decision

the

On the basis of the information provided by the complainant
the Office
and
for
submitted
observations
Harmonisation in the
the Ombudsman
reached these conclusions:

by
Internal Market,

1. Concerning the need to give reasons

In his letter of April 1996, the complainant had expressly
requested the Office for Harmonisation in the Internal
Market to inform him of the reasons for his exclusion
from the competition. The OHIM’s reply merely stated that
after a stage in which the personal files of the candidates
were compared, the complainant had not been selected for
the oral tests.

In the context of competitions, decisions by a Selection
Board to reject a candidate must state the conditions of the
notice of competition which have not been fulfilled (1). If
there are a large number of candidates, the Selection Board
may initially confine itself to stating the reasons for the
refusal in a summary manner and informing the candidates
the selection (2).
only of
Nevertheless, the Selection Board must give subsequently
an individual
candidates who
explanation to those
expressly ask for it (3).

the criteria and the result of

The reply by the OHIM to the complainant did not contain
sufficient details to enable the complainant to understand

(1) Joined Cases 4, 19, and 28/78 Salerno v Commission [1978] ECR

2403.

(2) Case 225/82 Verzyck v Commission [1983] ECR 1991.
(3) Case T-55/91 Olivier Fascilla v Parliament [1992] ECR II-1757,

paragraphs 34 to 35.

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Official Journal of the European Communities

C 300/83

the factors on which the Selection Board’s decision in
relation to him had been based, and to allow for a
potential review of the grounds on which the decision had
been taken. The reply failed therefore to give him adequate
reasons for the rejection of his application.

The OHIM justified its failure to give reasons on the fact
that Mr P. L. did not submit a formal appeal
to the
decision of the Selection Board, but rather a mere request
for further information.

This additional
requirement does not derive from the
relevant case-law of the Court of Justice on this matter.
The Court has underlined that the duty of the institution
to give reasons is triggered when the candidate to a
competition expressly requests an individual explanation.

2. Concerning the substantive decision

In its opinion to the Ombudsman, the OHIM indicated
that the Selection Board had carried out a comparative
analysis of the candidates’ merits and taken into account
the type of tasks to be undertaken, geographical balance,
and international experience. Preference was given to
candidates who had acquired their experience in an
international environment. In the light of these criteria, the
complainant had not been selected since his professional
experience and practical knowledge of foreign languages
appeared limited.

The Ombudsman considered that these aspects of the reply
gave a thorough explanation of the individual reasons for
which the Selection Board did not select the complainant
for
tests. The OHIM had thereby responded
properly to the requests of the complainant.

the oral

It therefore appeared from the opinion of the OHIM and
the information submitted by the complainant, that the
Office had taken steps to settle the matter and had thereby
satisfied the
complainant. The Ombudsman therefore
closed the case.

3.4. FRIENDLY SOLUTIONS ACHIEVED BY THE OMBUDSMAN

3.4.1. THE EUROPEAN PARLIAMENT

TRAVEL EXPENSES FOR AN OFFICIAL VISIT BY AN MEP

Decision
European Parliament

on

complaint 760/24.7.96/JC/UK/IJH against

for

rise

rapporteur

Mr C. was a member of the Committee on Development and
Cooperation of the European Parliament. At the time of the
complaint he was
events which gave
the
to the
Committee’s
the LomØ Convention. The
committee instructed him and another MEP to travel to Paris
for a meeting with the French foreign minister on 26 January
1995. They did so and Mr C.’s expenses for the mission were
subsequently paid by the Parliament. Some weeks later, Mr C.
was informed that the committee had not advised the Bureau
of the Parliament of the mission in time and he was instructed
to repay the expenses.

Mr C. took the matter to the Quaestors and to the President of
the Parliament who confirmed that
the expenses must be
repaid.

In his complaint to the Ombudsman, Mr C. claimed that it was
unfair that an MEP who was officially instructed to undertake a
mission should be expected to pay his own fare and expenses
because of someone else’s mistake.

The inquiry

The Parliament’s opinion

The complaint and annexed documents were forwarded to the
European Parliament. The Parliament’s opinion included the
following remarks:

(cid:145)It would hardly
seem in keeping with the Ombudsman’s
competences and responsibilities for him to be obliged to act as
an ad hoc arbitration or appeal authority for Members whose
requests are turned down by the competent parliamentary bodies
(the Bureau and the Quaestors).

((cid:133))

I regret that the Ombudsman has been involved in an unfounded
individual grievance of this nature, and trust that any future such
cases may be declared inadmissible.(cid:146)

regards

As
contained two points:

the substance of

the complaint,

the opinion

(i) Despite the stipulation in Parliament’s rules that prior
authorisation is required for attendance at such meetings,
Mr C. had neither received nor sought such authorisation.

the

The complaint

In July 1996, Mr C. MEP made
to the
Ombudsman. According to the complaint, the relevant facts
were as follows:

a complaint

(ii) MEPs are entitled to an allowance of ECU 3 000 per year
to meet the costs of travel undertaken in the performance
of their duties outside the country in which they were
elected. Mr C. would have been entitled, by submitting a
request
in due time and on the basis of supporting
documents, to reimbursement of his travelling expenses for
the visit to Paris from this allowance.

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Official Journal of the European Communities

18.10.1999

The complainant’s observations

In his observations, Mr C. stated that he deeply resented the
remarks which are quoted in italics above. He further stated
that he was not
the
matter, but wished to clear his name which he felt had been
(cid:145)blackened(cid:146) by the Parliament’s approach to the matter.

interested in the financial aspects of

The Ombudsman’s efforts to achieve a friendly solution

After
examining the Parliament’s opinion and Mr C.’s
observations, the Ombudsman considered that there was prima
facie evidence of maladministration because the statement in
the Parliament’s opinion that no request for prior authorisation
had been made for the visit to Paris appeared not to accord
with the documentary evidence annexed to Mr C.’s complaint.

At a meeting with the Ombudsman’s services, Mr C. confirmed
that, as stated in his observations, he was not interested in the
financial aspect of the matter. He indicated that his complaint
was satisfied by the European Parliament placing on the public
record that he had acted in good faith and that prior
authorisation of the mission to Paris was indeed sought.

The Decision

1. The European Parliament placed on the public record its
acceptance that the complainant acted in good faith and
that prior authorisation of the mission to Paris was indeed
sought. The complainant for his part made clear that he
did not seek to reclaim the expenses which the Parliament
had required to be repaid on the basis of Rules 22(8) and
139(5) of Parliament’s Rules of Procedure (1).

In accordance with Article 3(5) of the Statute, the Ombudsman
therefore proposed a meeting between his services and those
of
to discuss the possibility of a friendly
solution.

the Parliament

2.

above

appeared

from the

It
the
Ombudsman’s initiative to seek a friendly solution, no
issues remained in dispute between the complainant and
the European Parliament. The Ombudsman therefore
closed the case.

following

that,

By letter dated 16 January 1998, the current President of the
the Ombudsman a letter which
European Parliament sent
included the following remarks:

Further remarks

of Procedure, Members must

(cid:145)In accordance with Rules 22(8) and 139(5) of Parliament’s
Rules
the Bureau’s
authorisation to take part in meetings outside Parliament’s usual
places of work.

request

On 18 January 1995 Lord Plumb, Co-President of the ACP-EU
Joint Assembly, sent a request for authorisation for Mr C. to take
part in a mission to Paris. However, the late submission of this
the Bureau did not have enough time to
request meant
consider it and the mission went ahead without
the required
authorisation.

that

Parliament’s Rules of Procedure are clear on this point and
establish without any room for doubt that the request must be
submitted in advance, and there is no provision for authorisation
after the event. Under these circumstances I do not think that
Parliament can pay the allowances and travel expenses to which
Mr C. would have been entitled if
the mission had been
authorised by the Bureau.

None of this calls into question Mr C.’s good faith. I am sure
that he only wanted to carry out his job as rapporteur to the best
of his ability.(cid:146)

1. The European Parliament did not

formally contest

the
competence of
the Ombudsman to deal with this
complaint. However, it envisaged that future cases of this
kind might be declared inadmissible and considered that
the Ombudsman should not act as an (cid:145)arbitration or appeal
authority for Members whose requests are turned down by the
competent parliamentary bodies.(cid:146)

2. As

for 1997,

explained in the Annual Report

the
Ombudsman does not supervise the political work of the
in the absence of any
European Parliament. However,
express provision in the Treaty or the Statute of
the
Ombudsman (2), there is no legal basis for the Ombudsman
to consider that complaints concerning the Parliament’s
administrative work are inadmissible.

3. Similarly, although the European Ombudsman does not
seek a situation in which he is to be considered as a means

(1) Rule 22(8): (cid:145)The Bureau shall be the authority responsible for authorising
meetings of committees away from the usual places of work, hearings and
study and fact-finding journeys by rapporteurs.(cid:146) Rule 139(5):
(cid:145)Any
committee may, with the agreement of the Bureau of Parliament, instruct
one or more of its members to undertake a study or fact-finding mission.(cid:146)
(2) Decision 94/262/ECSC, EC, Euratom of the European Parliament of
9 March 1994 on the regulations and general conditions governing
the performance of the Ombudsman’s duties (OJ L 113, 4.5.1994,
p. 15).

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Official Journal of the European Communities

C 300/85

of redress in cases of this kind, there is no legal basis for
the Ombudsman to consider that complaints made by
MEPs on their own behalf are inadmissible, provided that
all the conditions of admissibility laid down by the Statute
are fulfilled. Article 2(4) of the Statute requires a complaint
administrative
to
approaches which,
include
application to the competent authorities of the Parliament.
Such cases could normally be solved by these authorities in
a way that does not provide reason for further complaint.

by
in a

appropriate

this kind,

preceded

case of

the

be

4.

institution

In accordance with Article 138e of the EC Treaty, the
Ombudsman’s
inquiries concern possible instances of
maladministration. In every inquiry by the Ombudsman,
the
to
demonstrate that no maladministration has occurred by
giving an opinion which deals carefully and correctly with
the relevant issues, to secure that the complaint is dealt
with promptly and properly by the Ombudsman.

opportunity

concerned

has

the

3.4.2. THE EUROPEAN COMMISSION

ACCESS TO COMMISSION’S DOCUMENTS

request

how its policies were organised and determined. The
of
concerned
complainant’s
documents from the Member States. The Commission decided
not to forward a copy of these contributions to him since the
document in question was not a Commission document, but
rather some material originally produced by different Member
States that the Institution had merely put together.

compilation

this

On the basis of the Commission Decision of 8 February 1994
on public access to Commission documents, the Commission
concluded that the requested material could not be considered
to be a Commission document. The Commission was of the
view that the request should have been made to the authors of
these different documents, namely the Member States. Since
the Commission’s policy on public access to Commission
documents relates only to its own documents,
it does not
foresee that the Commission should give access to documents
produced by other bodies. The Commission pointed out,
however, that it would make the final report available to the
complainant once it had been completed.

The Commission suggested that the complainant liaise with the
Irish Department of Social Welfare regarding the information
he was seeking.

Decision on complaint 1045/21.11.96/BH/IRL/JMA against
European Commission

the

The complainant’s observations

In his observations Mr H. pointed out that:

The complaint

In November 1996 Mr H. complained to the Ombudsman
concerning the refusal of the Commission to give him access
to a document which concerned policies against poverty in the
European Union.

there was no confusion as

to the type of
in his view,
referred to a
document he had asked for. His
Commission document, and not
to a number of different
documents produced by the Member States. Since these
materials had been partially translated and circulated with a
the document should have been
Commission cover page,
considered a Commission document.

request

The inquiry

The Commission’s opinion

complaint was

The
summary, the Commission’s opinion was as follows:

forwarded to the Commission.

Mr H. added that the document had been circulated in Ireland
as a Commission document in the summer of 1996. Although
he had asked the Irish Department of Social Welfare for a
copy of the document, his request had been refused on the
grounds that
it referred to a Commission document, and
therefore the decision to make it available rested entirely with
the Commission.

In

In the Commission’s medium-term social action programme
for 1995 to 1997, it had been announced that a report on all
relevant Community actions on poverty and social exclusion
the Commission started
would be prepared. Accordingly,
working with representatives
in the
context of a High Level Group on Social Exclusion. Following
a request from the Commission in 1996, each Member State
made available to the group information on its national criteria
to define poverty and social exclusion, including an outline on

from Member States

Mr H. disagreed with the point of view taken by the
Commission. In so far as the document had been compiled
and circulated under the authority of the institution, it should
be seen as a Commission document.

the

complainant

Lastly,
the Commission’s
reasoning could have negative consequences for transparency
in the European Union. Hence, the document should be made
available to him in the interests of transparency.

stressed that

C 300/86

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Official Journal of the European Communities

18.10.1999

Further inquiries

this particular case. To that end, it had requested authorisation
from all Member States to have their contributions released.

Given the nature of
the dispute, and in order to reach a
satisfactory solution to the problem, the Ombudsman decided
that the document in question should be inspected by officials
from his secretariat. The inspection aimed at assessing whether
or not the document was simply a compilation of different
contributions from Member States, and accordingly excluded
from public access.

the inspection took place in the
A meeting to carry out
Commission premises in Brussels on 10 October 1997. The
Commission had given notice of the inspection beforehand to
all members of the High Level Group.

In the course of the meeting, the Commission officials present
explained that the document had been originally conceived in
1995 as a means to improve mutual understanding among
Member States on their national policies on social exclusion
and poverty. To that end a High Level Group was set up by
the Commission with the participation of national experts
from all Member States.
In the context of that High Level
Group and in order to prepare discussions, the Commission
distributed a questionnaire among all Member States towards
the end of 1995. All responses received from Member States
were collated by the Commission’s services into a single
document which was distributed during the meeting of the
High Level Group in June 1996.

The Ombudsman’s efforts to achieve a friendly solution

the Ombudsman wrote to the
Following the inspection,
Commission in accordance with Article 3(5) of the Statute,
with a view to seeking a friendly solution to the complaint.
The Ombudsman referred in his letter to the role of
the
Commission in the preparation of the document in question,
and the fact that a Member State had rejected the complainant
on the grounds that he should address the request
to the
Commission. It was therefore regrettable that the complainant’s
attempts to obtain the document had met with a negative
response both from a Member State and the Commission.
Furthermore,
the lack of
the Ombudsman considered that
transparency in this particular case could undermine public
confidence in the Community administration, and frustrate the
aims of Declaration 17 attached to the Treaty on European
Union, concerning the right of access to information. In view
of these considerations, the Ombudsman proposed a friendly
solution by which the Commission would agree to give the
complainant access to the requested documents.

On 13 May and on 14 July 1998 the Ombudsman received
information from the Commission concerning the
further
It appeared that all Member
replies received to his request.
States had agreed to forward their documents
to the
complainant, and that some of
them had done so under
regarding reproduction and copyright.
certain restrictions
Furthermore, the Commission had even agreed to send Mr H.
a copy of the notes taken by its services during the meeting of
the High Level Group on Social Exclusion in June 1996.

thanked

the documents

the Ombudsman

indicated that all

In two letters to the Ombudsman of 20 May and 24 July
1998, Mr H.
initially
requested had already been forwarded to him, as proposed in
initiative for a friendly solution. The
the Ombudsman’s
complainant
the work
undertaken and acknowledged the significant progress which
had been made. In his view, the Ombudsman had done all that
was within his powers and authority, and therefore he agreed
the complainant
the case. Nonetheless,
to the closing of
expressed some general concern as
the
documents which he had received, and more generally, to the
procedure for public access to documents in the European
Union.

to the use of

for

The Decision

Following the Ombudsman’s initiative, a friendly solution had
been agreed between the institution and the complainant. The
Ombudsman therefore closed the case.

TENDER EXERCISE FOR A POST OF FINANCE MANAGER UNDER
THE PHARE PROGRAMME

Decision on complaint 1109/18.12.96/IGL/UK/IJH against
European Commission

the

The complaint

In December 1996, X made a complaint to the Ombudsman
concerning a tender exercise for a post of finance manager
under the Phare programme, carried out by DG 1A of the
Commission. In accordance with Article 2(3) of the Statute of
the Ombudsman, X requested that the complaint should be
treated confidentially.

In its reply of 3 February 1998 the Commission reaffirmed its
opinion about the nature of the document. However, it agreed
to the Ombudsman’s proposal to reach an ad hoc solution for

In summary, the relevant facts as presented in the complaint
were that X was employed in Brussels as finance manager in a

18.10.1999

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Official Journal of the European Communities

C 300/87

Phare programme coordination unit. In August 1994, the post
was relocated to another country. After receiving informal
assurances about
the prospective period of
employment, X moved to the other country with his family.
After approximately one year, the post of finance manager was
subject to a tender exercise, in which X was unsuccessful.

the length of

there was prima facie evidence of maladministration in the
discrepancy between the Commission’s opinion, which stated
that no call
tenders had taken place, and the letter
addressed to X by DG 1A, which referred to the outcome of a
tender exercise.

for

In the complaint to the Ombudsman, X claimed that:

(i)

the tender exercise was not conducted in accordance with
Phare regulations;

(ii)

the successful tenderer did not even closely comply with
the terms of reference for the post;

(iii)

the successful tenderer had been in a position to know
the level of the fees which X had previously received as
finance manager.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
opinion,
organisational
programme.

the Commission provided information about

and contractual

framework of

In its
the
the Phare

In relation to the specific case, the opinion made a number of
points. In particular it stated that there had not been a call for
finance officer, but a comparative
tenders for the post of
evaluation of the qualifications of two candidates, of whom X
was one. The opinion also included
annexed
documents concerning the selection process.

several

In accordance with Article 3(5) of the Statute, therefore, the
Ombudsman wrote
the
Commission to propose an informal meeting between the
Commission services and the Ombudsman’s services to discuss
the possibility of a friendly solution to the complaint.

Secretariat-General

the

to

of

the meeting,

the
the Commission informed
Following
Ombudsman that
discussions between the Commission
services and X were taking place. Subsequently X informed the
Ombudsman by fax that he had reached agreement with the
Commission on the terms of a financial settlement of
the
complaint. The Commission also informed the Ombudsman
that a friendly settlement had been reached.

The Decision

The Ombudsman’s inquiries into this case appeared to reveal
prima facie evidence of maladministration.

the
In accordance with Article 3(5) of
Ombudsman therefore proposed an informal meeting between
the Commission’s services and the Ombudsman’s services (2).

the Statute (1),

Following this initiative by the Ombudsman, the Commission
and the complainant have reached a friendly settlement of the
complaint. The Ombudsman therefore closed the case.

The complainant’s observations

NON-RENEWAL OF AN EXTERNAL CONTRACT: ALLEGED FAILURE
TO INFORM IN DUE TIME

The observations contested several of the points made by the
Commission. In particular, they referred to a letter dated 22
December 1995 which was addressed to X by an official of
DG 1A of the Commission. This letter, a copy of which X
supplied to the Ombudsman, began as follows:

Decision
Commission

on

complaint

485/97/OV against

the

European

The complaint

regret

to inform you that

(cid:145)I
choice made by the
Evaluation Committee, responsible for the call for tender ((cid:133)) did
not retain your offer as most advantageous.(cid:146)

the final

X also remarked that the Commission had not responded to
points (ii) and (iii) of the complaint.

The Ombudsman’s efforts to achieve a friendly solution

examining

After
the
the Commission’s
complainant’s observations, the Ombudsman considered that

opinion

and

In June 1997, Mr V. a journalist working as a correspondent
in the European Commission Representation in The Hague,
complained to the Ombudsman about the non-renewal of his
the
complained that
contract.

the Head of

Firstly, he

(1)

(cid:145)As far as possible, the Ombudsman shall seek a solution with the
institution or body concerned to eliminate the instance of
maladministration and satisfy the complaint(cid:146).

(2) On 22 October 1997,
Secretary-General of
meeting could,
pursue a friendly solution to a complaint,
Article 3(5) of the Statute.

the European Ombudsman and the
the Commission agreed that an informal
in some cases, provide an appropriate way to
in accordance with

C 300/88

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Official Journal of the European Communities

18.10.1999

Commission Representation refused to sign the last renewal of
his three years contract, because he thought the function to be
superficial. This happened on 1 April 1997,
i.e. one month
after the expiration date of
the contract, and without any
consultation of the audiovisual unit of DG X (Information,
the
Communication, Culture
Commission. Secondly,
the complainant who had worked
normally for the whole month of March, was informed that he
would not be paid for that month.

and Audiovisual Media) of

The Decision

1.

The alleged failure to inform the complainant in due
time about the non-renewal of the contract

1.1. The complainant claimed that he was not informed in
the contract. More
the non-renewal of
due time of
particularly he alleged that he had been informed of it
only one month after the expiration date of the contract.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission. As regards
the non-renewal of the contract, the Commission observed in
its opinion that the initial duration of the contract, signed on
the Commission
25 April 1996 by the outgoing Head of
Representation in the Hague, was one year, renewable for a
further year. Given that the new Head of Representation only
took up his duties on 3 March 1997, the decision whether to
renew the complainant’s contract was postponed until his
arrival. The Head of the Representation decided that it was
inappropriate to prolong the contract. The complainant was
orally informed of this decision in meetings with the Head of
Representation on 11 March and 1 April 1997. Further to a
written note dated 3 April 1997 in which the complainant
criticised the decision, the Head of Representation informed
him in a letter of 7 April 1997 that there were no grounds to
review the decision.

The complainant finally introduced a request for payment for
the month of March 1997 to the amount of ECU 2 500,
which corresponded to one twelfth of the payment due for the
initial period. This request was refused.

there was

rights. The Commission declared that

The Commission finally observed that
some
confusion as regards the exact nature of the complainant’s
contractual
it was
prepared to try to find a
friendly solution with the
complainant. The Commission subsequently informed the
Ombudsman that a friendly solution had been reached and
that the complainant would be paid the ECU 2 500 which he
claimed for his activities during the month of March 1997.

The complainant’s observations

No written observations were received from the complainant.
However, on 6 July 1998 the complainant informed the office
of the Ombudsman by telephone that he was satisfied with the
friendly solution. He
thanked the Ombudsman for his
intervention.

1.2. The

that

with

arise

deals

from

complaints

Ombudsman

of
maladministration
contractual
relationships. He does not, however, seek to determine
whether there has been a breach of contract by either
party. This question could be dealt with effectively only
by Netherlands courts which, according to Article 7 of
the contract, are competent for litigations between the
parties, and which would have the possibility to hear the
arguments of the parties concerning the relevant national
law and to evaluate conflicting evidence on any disputed
issues of fact.

1.3. As regards the obligation to inform in due time,

complainant.

it
appeared that the expiration date of the initial contract
was 25 April 1997 and not 1 March 1997 as indicated
by the
the
complainant was informed of the non-renewal 25 days
before the expiration date of the contract, and not one
month after it as indicated by the complainant. Therefore,
as regards the obligation to inform in due time, there
appeared to be no instance of maladministration by the
Commission.

appeared that

further

It

2.

The friendly solution with regard to the payment of
ECU 2 500 for the month of March 1997

2.1. Given that the complainant had worked normally for the
whole month of March 1997, he introduced a request for
payment for this month to the amount of ECU 2 500,
which was refused by the Commission Representation.
However, in its comments, the Commission observed that
there had been some confusion about the exact nature of
the complainant’s contractual rights. Therefore, further to
the Ombudsman’s request, the Commission was prepared
to find a friendly solution with the complainant and
agreed to pay ECU 2 500 for the complainant’s activities
during the month of March 1997. The complainant
informed the Ombudsman that he was satisfied with the
agreement which had been reached.

2.2. The Ombudsman took note of

this
agreement
of
the
maladministration and that the complainant expressed his
satisfaction with the agreement.

that
instance

the
possible

eliminated

fact

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Official Journal of the European Communities

C 300/89

On the basis of the Ombudsman’s inquiries into point 1 of the
complaint, there appeared to have been no maladministration
by the Commission. As regards point 2 of the complaint, a
friendly solution had been agreed between the institution and
the complainant. The Ombudsman therefore closed the case.

(iii)

the whole procedure was characterised by avoidable
delays;

(iv)

the superior misused his power in giving the complainant
tasks that were incompatible with his disability.

3.5. CASES CLOSED WITH A CRITICAL REMARK BY THE

EUROPEAN OMBUDSMAN

On the basis of the above items, the complainant wanted the
European Parliament to recognise the occupational character of
his disease and claimed compensation.

3.5.1. THE EUROPEAN PARLIAMENT

The inquiry

STAFF: RECOGNITION OF AN OCCUPATIONAL DISEASE

Decision on complaint 977/28.10.96/ST/L/BB/(XD-ADB) against
the European Parliament

The complaint

The
complainant has been employed by the European
Parliament in the framework of a policy to recruit disabled
people. He claimed to be suffering from an occupational
disease due to hard work he had to carry out during a
parliamentary session in Strasbourg in 1984. He alleged that
his superior gave tasks to him which were not compatible
with his disability.

In 1990, he introduced a declaration to the European
Parliament on the basis of Article 17 of the rules on the
insurance of officials of the European Communities against the
risk of accident and of occupational disease. The complainant’s
aim was to obtain the recognition of the deterioration of his
health as an occupational disease.

In 1994,

the
The European Parliament started an inquiry.
complainant asked for the setting up of a Medical Committee
under Article 19 of the rules mentioned above. In 1996, the
European Parliament rejected the request of recognition of
occupational disease on the basis of the report made by the
Medical Committee which considered that the disease was the
result of an evolution of the complainant’s previous health
condition.

The complainant appealed against
the
European Parliament rejected his request in 1996. He then
decided to lodge a complaint with the European Ombudsman.

this decision but

The complainant made four allegations:

the European Parliament did not make an objective
inquiry in collecting documents that were not related to
the case;

(i)

(ii)

The European Parliament’s opinion

The European Parliament pointed out that all the documents
forwarded by the complainant were transmitted to the Medical
Committee with the exception of five documents because these
were not received by the Parliament or were not sent by the
complainant.

The Parliament could recognise some delay at certain stages of
it explained this delay by the
the procedure. However,
complexity of the case, the permanent steps the complainant
undertook,
set of medical
documents, some written in German, the writing of the very
detailed mandate for the Medical Committee and also by the
simultaneous management of three other files related to the
complainant.

the difficulties

to analyse a

The Parliament enclosed a chronological summary of
procedure to its opinion.

the

The complainant’s observations

In his observations, the complainant maintained his complaint
and made the following comments:

(i)

(ii)

four of
the five documents the European Parliament
alleged not to have received were either mentioned in the
conclusions of the Medical Committee or were stamped
by the European Parliament;

did

conduct

Parliament

the
objective
not
administrative inquiry and did not transmit the relevant
documents to the Medical Committee. The complainant
drew the conclusion that the Medical Committee could
not work on a proper basis and that its reasoning was
vitiated;

an

(iii)

the inquiry of the Parliament lacked transparency.

European Parliament

the
documents to the Medical Committee;

failed

to transmit

some

As a conclusion, the complainant asked for a friendly solution.

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Official Journal of the European Communities

18.10.1999

The Decision

3. Avoidable administrative delay by the European

Parliament

1.

Lack of objectivity in the inquiry

of

that

specifies

occupational

Article 17(2) of the rules on the insurance of officials of
the European Communities against the risk of accident
and
(cid:145)The
disease
Administration shall hold an inquiry in order to obtain all
the particulars necessary to determine the nature of the
disease, (cid:133)(cid:146). The Ombudsman noted that the European
Parliament collected a large number of documents, mainly
transmitted by the complainant, which permitted the
the Medical
writing of
the very detailed mandate of
Committee. He considered that
there was no clear
evidence
inquiry made by the European
the
Parliament lacked objectivity and aimed at prejudicing the
to be no
complainant. There
maladministration by the Parliament in relation to this
aspect of the complaint.

appeared,

therefore,

that

The Ombudsman carefully analysed the chronological
summary of the facts and the arguments put forward by
the European Parliament. He found no evidence of
maladministration in relation to this aspect of
the
complaint.

4. Misuse of power by a superior

The Ombudsman pointed out that, on the basis of his
mandate, he could not deal with this allegation because
the claim was made more than two years after the date
on which the facts came to the attention of
the
complainant.

Conclusion

2.

Failure to transmit some documents to the Medical
Committee

On the basis of the above findings, the Ombudsman made the
following critical remark:

2.1. After a careful examination of the material at the disposal
of the Ombudsman, there appeared that some missing
documents mentioned by the Parliament had in fact been
stamped by the institution. The Ombudsman pointed out
an
that
institution to keep a clear registration of the documents it
received. By not doing so, he considered that
the
European Parliament had failed in this principle.

it was good administrative behaviour

for

some documents

2.2. The Ombudsman therefore examined the complainant’s
allegations that the failure of the European Parliament to
transmit
to the Medical Committee
obstructed the Committee from having a clear reasoning
in writing its report. He first noted that some missing
documents had in fact been transmitted to the Medical
they were mentioned in the
Committee given that
the
Committee’s
members of the Medical Committee had been appointed
by the complainant and, as it has been held by the
European Court of Justice, (cid:145)the interests of the official are
safeguarded by the presence in the Medical Committee of
the
a member
appointment of the third member of the Committee by
agreement between the two other members appointed by
the parties (cid:133)(cid:146) (1).

report. He also noted that one of

confidence

enjoying

and

his

by

2.3. On the basis of the above elements, it did not appear that
the reasoning of the Medical Committee could have been
vitiated and that the conclusion of its report would have
the Ombudsman considered
been different. Therefore,
that there was no ground for a friendly settlement of the
matter.

(1) Case 2/87 Biedermann v Court of Auditors [1988] ECR 143.

It is good administrative behaviour for an institution to keep a
clear registration of the documents it receives. By not doing so,
the European Parliament failed in this principle.

The Ombudsman considered that
there was no ground to
pursue a friendly settlement of the matter and therefore closed
the case.

COMPETITION: FAILURE TO PROVIDE ACCURATE INFORMATION

Decision on complaint 1051/25.11.96/AF/B/VK against
European Parliament

the

The complaint

By letters dated November 1996 and January 1997, Mrs F.
complained to the Ombudsman, alleging that the European
Parliament had wrongly refused to admit her to the written
tests in competition PE/80/A, organised by the Parliament. The
refusal was made on the grounds that the complainant had not
submittted documentation to prove that she had a very good
knowledge of a second Community language as required by
the notice of competition.

The publication of the competition in the Official Journal of the
European Communities fell into three parts: (i) general provisions
applicable to open competitions, (ii) guidelines for participants
in open competitions organised by the Parliament and (iii) the
notice concerning the specific competition.

18.10.1999

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Official Journal of the European Communities

C 300/91

that

As regards documentation, the guidelines provided under the
(cid:145)The applicants must provide
heading (cid:145)Documentation(cid:146)
documentation for any request for exemption from the age
limits as well as for the information given under point 9
(cid:147)education(cid:148) and under point 12 (cid:147)professional experience(cid:148)
together with their application form(cid:146). The guidelines did not
specify that documentation should be provided to prove the
knowledge of a second Community language.

list of

applicants which comply with the

The notice of competition provided in Title III. A. 2. that (cid:145)the
Selection Board examines the documentation and establishes
the
specific
conditions under Title II B. The Selection Board bases its
decision entirely on the information given in the application
form, which is backed by accompanying documentation(cid:146). The
condition under Title II B of the notice fell into two parts; the
first required applicants to possess a university diploma or
equivalent professional
required
experience;
applicants to possess a very good knowledge of a second
Community language.

second

the

several

application

headings.
form contained
The
Documentation was requested only for headings 9 (cid:145)education(cid:146)
and 12 (cid:145)professional experience(cid:146). Heading 7 was entitled
(cid:145)knowledge
two
of
(a) mother tongue and (b) other languages.
sub-categories:
the applicant should provide
There was no indication that
documentation for the information under heading 7.

languages(cid:146)

and was

divided

into

In August 1996, Mrs F. was informed that she could not be
admitted to the tests because (cid:145)from the documents you
submitted, it did not appear that you had the required very
good knowledge of an additional Community language as laid
down in Title II, point B.2 of
for the
selection procedure PE/80/A(cid:146).

the announcement

Mrs F. appealed against this decision, claiming that the text of
the Official Journal of the European Communities did not explicitly
request documents
to prove the knowledge of a second
Community language. On 3 October 1996, her appeal was
rejected on the grounds that the Selection Board could base its
findings only on the application and annexed documents, and
that the documents she had submitted did not prove that she
had very good knowledge of a second Community language.

Against
Ombudsman. In substance, she put forward three arguments.

background, Mrs

complained

this

to

F.

the

1. The

information given to applicants

concerning the
documentation was
and misleading. The
confusing
guidelines which did not request documentation for the
knowledge of languages should prevail over the notice of
the competition.

to a Member of
therefore be obvious
requirements.

the European Parliament;

should
she fulfilled the language

that

it

3. The Selection Board infringed the principle of equal
treatment of applicants, as another applicant in a similar
situation to hers had been admitted, on appeal, to the
competition.

The inquiry

Parliament’s opinion

The complaint was forwarded to the European Parliament. In
its opinion, Parliament claimed that its decision to exclude Mrs
F. was based on the wording of the notice of competition,
which it considered to take precedence over the guidelines.

The complainant’s observations

In her observations, Mrs F. maintained her complaint.

The Decision

1.

Failure to provide accurate information

the Notice of

to enable the applicant

1.1. It is good administrative behaviour to provide the most
the conditions of
accurate information possible about
eligibility for a post
to judge
whether to apply for it, and what supporting documents
are important for the proceedings and therefore must be
enclosed with the application form (1). According to the
for participants, documentation was only
guidelines
necessary to give proof of points 9 and 12 of
the
application form, (cid:145)education(cid:146) and (cid:145)professional experience(cid:146);
whereas
competition stipulated that
applicants had to hand in copies of diplomas, work
the
references
information
The
the
information given in the guidelines and the notice
appeared contradictory as regards the requirement of
documents. Without prejudice to the legal value of the
texts, it appeared clear that both texts served the function
of properly informing the applicant
in a particular
competition and therefore, they should not have differed
from each other. Parliament therefore failed to provide
the complainant with clear and accurate information
it considered that knowledge of
about
languages should be supported by evidence.
It should
have ensured that applicants were given instruction about
the requirements for the competition.

documents(cid:146) proving
form.

(cid:145)all other
in

application

the fact

given

that

and

2. The Selection Board should have concluded that

she
fulfilled the language requirements as it appeared from her
application form that she had been working as an assistant

(1) Case T-158/89, Judgment of 28 November 1991, van Hecken v

Economic and Social Committee [1991] ECR II-1341.

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Official Journal of the European Communities

18.10.1999

2. Work experience as proof for language qualifications

3.5.2. THE COUNCIL OF THE EUROPEAN UNION

Even when one considers the multilingual environment of
the place of work and the position of assistant in the
European Parliament, the fact that one works there is, in
itself, not proof of the sufficient knowledge of another
Community language.

COUNCIL DECISION 93/731/EC (cid:151) MEANING OF (cid:145)REPEAT
APPLICATIONS(cid:146) AND (cid:145)VERY LARGE DOCUMENTS(cid:146)

Decision on complaint 1053/25.11.96/Statewatch/UK/IJH against
the Council

3.

Equal treatment of candidates by the Selection Board

The complaint

In support of her allegation Mrs F. put
forward that
another candidate, who had been rejected for the same
reasons, was admitted to the procedure after he had
appealed by arguing that the strict interpretation of the
wording
not
automatically lead to the assumption that documents
proving the knowledge of a second Community language
the lack of any
were required. Given in particular
indication as
the
this person,
identity of
to the
Ombudsman was not able to look further into the matter.

the Notice

competition

did

of

of

Conclusion

On the basis of Ombudsman’s inquiry into this complaint, it
appeared necessary to make the following critical remark.

is good administrative behaviour

and therefore must be
form (1). According
to

It
to provide the most
accurate information possible about the conditions of eligibility
for a post to enable the applicant to judge whether to apply
for it, and what supporting documents are important for the
enclosed with the
proceedings
for
guidelines
the
application
participants, documentation was only necessary to give proof
of points 9 and 12 of the application form,
(cid:145)education(cid:146) and
(cid:145)professional experience(cid:146); whereas the Notice of competition
stipulated that applicants had to provide copies of diplomas,
work references
and (cid:145)all other documents(cid:146) proving the
information given in the application form. The information
given in the guidelines and the notice appeared contradictory
as regards the requirement of documents. Without prejudice to
the legal value of the texts, it appeared clear that both texts
served the function of properly informing the applicant in a
particular competition and therefore,
they should not have
differed from each other. Parliament therefore failed to provide
the complainant with clear and accurate information about the
fact that it considered that knowledge of languages should be
supported by evidence. It should have ensured that applicants
were given instruction about
the
competition.

requirements

the

for

this aspect of

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

In February 1996, Mr B. wrote to the Council requesting
copies of the minutes of 14 meetings of the (cid:145)K4(cid:146) committee,
which comes under the Council of Justice and Home Affairs
ministers. His application was made under
the Council
Decision on public access to Council documents (2) (hereafter
Decision 93/731/EC).

In April 1996, the General Secretariat of the Council replied to
the application. The reply referred to Article 3(2) of Decision
93/731/EC which reads as follows:

relevant departments of

(cid:145)The
shall
endeavour to find a fair solution to deal with repeat applications
and/or those which relate to very large documents(cid:146).

the General Secretariat

The reply went on to state that the request was (cid:145)a repeat
application which relates as well to a very large number of
documents(cid:146) and that, as a (cid:145)fair solution(cid:146), the General Secretariat
was providing five of the 14 documents requested.

Mr B. made a confirmatory application for the other nine
documents, but
the Council upheld the
original decision.

the Presidency of

In his complaint to the Ombudsman, Mr B. claimed that the
Council was not entitled to rely on Article 3(2) of Decision
93/731/EC as a reason to reject part of his application for
documents because:

(i) he had never applied for the documents in question before;
the term (cid:145)repeat applications(cid:146) refers to a
in his view,
situation in which a person applies for the same document
again and again;

(ii) Article 3(2) refers to (cid:145)very large documents(cid:146), not (cid:145)a very
large number of documents(cid:146) as mentioned in the reply
from the General Secretariat. Furthermore,
in February
introduced a system of charging for
1996 the Council
documents supplied. Mr B. suggested that
the size or
number of documents requested had therefore become
irrelevant.

(1) Case T-158/89, Judgment of 28 November 1991, van Hecken v

(2) Council Decision 93/731/EC of 20 December 1993 (OJ L 340,

Economic and Social Committee [1991] ECR II-1341.

31.12.1993, p. 43).

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Official Journal of the European Communities

C 300/93

The inquiry

The Council’s opinion

The Council’s opinion included,
points.

in summary, the following

JHA documents. That

The complainant uses a systematic technique to obtain access
technique consists of
to all Council
initially requesting the agendas of all
the Council bodies
dealing with JHA matters and subsequently requesting all the
documents included on those agendas.

has

Article 3(2) must be interpreted in a way which gives it
practical effect. If a person continues to request access to a
document which
the
already
circumstances which motivated that refusal have remained
unchanged, the General Secretariat is not obliged to find a fair
solution but may adopt an identical solution, i.e. may withhold
that document again. To restrict
(cid:145)repeat
applications(cid:146) to applications referring to the same document
would therefore divest Article 3(2) of practical effect.

the concept of

refused

been

and

In the Council’s view, the concept of a (cid:145)repeat application(cid:146)
includes cases in which a person regularly and systematically
requests over a long period of time access to a large number
of documents of the same type, not necessarily identical. It is
in this context that the number of documents requested is one
of the criteria to be taken into consideration; as is clearly
shown by the wording of Article 3(2) of Decision 93/731/EC,
the volume of documents requested is a separate criterion
which may justify the application of a fair solution, even if the
request is not a repeat one.

The French version of Article 3(2), which formed the basis for
translation into all the other language versions, refers to a
(cid:145)demande rØpØtitive(cid:146), a term which has negative and pejorative
connotations.

In the Council’s view, Article 3(2) of Decision 93/731/EC is
aimed at
safeguarding efficiency in its administration in
exceptional cases. It has been applied only to a limited extent
to date.

The charging of fees for the supply of documents is based on
Article 3(1) of Decision 93/731/EC. It does not affect the rule
of principle provided for in Article 3(2).

The complainant’s observations

In his observations, Mr B. criticised the Council’s opinion in
the Council was not
detail and maintained his view that

entitled to rely on Article 3(2) of Decision 93/731/EC as a
reason to reject part of the application for documents.

The Decision

1. Decision 93/731/EC

1.1. Decision 93/731/EC implements principles laid down in
the joint Code of Conduct concerning access to Council
and Commission documents (1). The objective of
the
Decision is to give effect to the principle of the largest
possible access for citizens to information, with a view to
strengthening the democratic character of the institutions
and the trust of the public in the administration (2).

1.2. The procedure to be followed by the Council in dealing
with applications for access to documents is laid down by
Articles 3, 5, 6 and 7 of Decision 93/731/EC. A two-stage
procedure is foreseen. At the first stage, applications are
dealt with by the General Secretariat and the Secretary
General replies to the applicant. In the case of a negative
reply,
the applicant has the opportunity to initiate a
second stage by making a confirmatory application. If the
confirmatory application is rejected,
the reply to the
applicant comes from the Council.

2.

The disputed provision: Article 3(2)

2.1. According to Article 3(2) of Decision 93/731/EC:

(cid:145)The relevant departments of the General Secretariat shall
solution to deal with repeat
endeavour
large
applications and/or
documents(cid:146).

those which relate

to find a fair

to very

The reference to the General Secretariat indicates that the
possibility of a fair solution is envisaged at the stage of
the initial application, as
the
corresponding provision of the Code of Conduct which,
moreover, foresees that a fair solution will be found (cid:145)in
consultation with the applicants(cid:146) (3).

is also the case for

2.2. Neither Article 3(2) nor the corresponding provision of
the Code of Conduct expressly provides an exception to
the general rule of public access which could be used as a
reason for rejecting any part of an application for access
to documents. In this case, however, the Council cited

(1) OJ L 340, 31.12.1993, p. 41.
(2) Case
Svenska
T-174/95,

Journalistf(cid:246)rbundet

(Tidningen

(3)

Journalisten) v Council, judgment of 17 June 1998, paragraph 66.
(cid:145)In consultation with the applicants, the institution concerned will
find a fair solution to comply with repeat applications and/or those
which relate to very large documents.(cid:146)

C 300/94

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Official Journal of the European Communities

18.10.1999

Article 3(2) as the reason for rejecting the complainant’s
confirmatory application for the nine documents which
the General Secretariat had failed to provide to him.

obliged to put forward reasons for the request (2). Access
to documents cannot therefore legitimately be blocked by
the Council because of a possible negative attitude
towards the purposes for which a request has been made,
or the person who has made it.

2.3. The complainant contests the Council’s interpretation of
the term (cid:145)repeat application.(cid:146) He also claims that
the
General Secretariat’s reply to his initial application was
wrong to consider
to
applications for a very large number of documents.

that Article 3(2) also applies

2.4. According to the Council’s opinion to the Ombudsman:

(cid:145)the concept of a (cid:147) r e p e a t a p p l i c a t i o n (cid:148) refers inter
alia to cases in which a person regularly and systematically
requests over a long period of time access to a large number
of documents of the same type, not necessarily identical(cid:146).

The Council’s opinion also claims that (cid:145)the volume of
documents requested is a separate criterion which may
justify the application of a fair solution, even if
the
request is not a repeat one(cid:146).

2.5. It appears therefore that the issue in dispute between the
complainant and the Council is the interpretation of the
terms (cid:145)repeat applications(cid:146) and (cid:145)very large documents(cid:146) as
used in Article 3(2) of Decision 93/731/EC. Neither term
is defined by the Decision itself, or by the Code of
Conduct.

3.

The meaning of the terms (cid:145)repeat applications(cid:146) and
(cid:145)very large documents(cid:146)

access

to documents,

3.1. If and to the extent that Article 3(2) may lawfully be used
by the Council as a reason for rejecting any part of an
the provision
application for
operates as an exception to the general rule contained in
Decision 93/731/EC. According to the case-law of the
Court of First
Instance, where a general principle is
established and exceptions to that principle are then laid
down, the exceptions should be construed and applied
strictly,
the
application of the general rule (1).

in a manner which does not defeat

3.2. Decision 93/731/EC confers on citizens rights of access to
documents held by the Council. Any person is entitled to
ask for access to any Council document without being

(1) Cases T-194/94, John Carvel and Guardian Newspapers v Council,
[1995] ECR II-2765; T-105/95, World Wide Fund for Nature
(WWF) v Commission, [1997] ECR II-313; Case T-174/95, Svenska
Journalistf(cid:246)rbundet (Tidningen Journalisten) v Council, judgment of
17 June 1998.

for

the

document. On

3.3. The term (cid:145)repeat application(cid:146) appears naturally to refer to
applications
this
same
interpretation, the practical effects of Article 3(2) include
the possibility of a fair solution to allow the Council
services to deal efficiently with cases in which the same
person makes
same
repeated applications
the
document, hoping or claiming that
the circumstances
which motivated previous refusals may have changed.

for

3.4. To extend the meaning of (cid:145)repeat applications(cid:146) so as to
include applications by the same person for different
documents could defeat the application of the general
rule: Decision 93/731/EC does not impose any limit on
the number of documents for which a citizen may apply
as of right. In the absence of such a limit, moreover, the
Council’s interpretation could infringe the principle of
legal certainty, because it would not be possible to know
in advance how many different documents could be
requested before
the
application to be a (cid:145)repeat application.(cid:146)

the Council would

consider

3.5. To interpret Article 3(2) so as to bring all applications for
a very large number of documents within its scope leads
to the same practical
interpreting (cid:145)repeat
application(cid:146) to include applications by the same person
for different documents. Similar arguments against such
an interpretation therefore apply.

result as

3.6. The Ombudsman therefore considers that the Council has
wrongly interpreted Article 3(2) of Decision 93/731/EC
and that it was not entitled to rely on that Article as a
reason to reject part of the complainant’s application for
documents in this case. The term (cid:145)repeat applications(cid:146) in
Article 3(2) does not include applications by the same
person for different documents, nor is the Article to be
interpreted so as to bring all applications for a very large
number of documents within its
It must be
scope.
recalled, however,
the highest authority on the
meaning and interpretation of Community law is the
Court of Justice.

that

Conclusion

On the basis of
into this
the Ombudsman’s
complaint, it appears necessary to make the following critical
remark:

inquiries

(2) Case

T-174/95,

(Tidningen
Journalisten) v Council, judgment of 17 June 1998, paragraph 109.

Journalistf(cid:246)rbundet

Svenska

18.10.1999

EN

Official Journal of the European Communities

C 300/95

The Ombudsman considers that
the Council has wrongly
interpreted Article 3(2) of Decision 93/731/EC and that it was
not entitled to rely on that Article as a reason to reject part of
the complainant’s application for documents in this case. The
term (cid:145)repeat applications(cid:146)
include
applications by the same person for different documents, nor
is the Article to be interpreted so as to bring all applications
for a very large number of documents within its scope. It must
be recalled, however,
the highest authority on the
meaning and interpretation of Community law is the Court of
Justice.

in Article 3(2) does not

that

Article 7(3) of Council Decision 93/731/EC expressly provides
for an applicant whose confirmatory application for access to
documents is rejected to be informed of
the possibility of
to the Ombudsman. The Ombudsman’s critical
complaint
remark implies
the
the Council
complainant’s confirmatory application dated 17 April 1996
and give access to the documents requested, unless one of the
exceptions contained in Article 4 of Decision 93/731/EC
this
applies. Since it was
reconsideration
the
complainant, the Ombudsman closed the case.

to carry out
to

for
communicate

should reconsider

the Council

result

that

and

the

Further remarks

The Council’s opinion in this case referred to the introduction
of a system of charging fees for documents supplied under
Council Decision 93/731/EC. The Ombudsman agreed with
the Council’s view that the system of charging was legally
irrelevant
to the interpretation of Article 3(2) of Decision
93/731/EC.

However,
the Council’s opinion also expressed a legitimate
concern to safeguard the efficiency of its administration. In this
context,
the Ombudsman noted that Member States which
have long experience of administering a right of public access
to documents often rely on the system of charging as a
safeguard in dealing with requests
for documents which
impose a heavy administrative burden.

Council Decision on public access to Council documents (1)
(hereafter (cid:145)Decision 93/731/EC(cid:146)).

By letter dated 29 July 1996, the General Secretariat of the
Council rejected the request. Its letter referred to Article 2(2) of
Decision 93/731/EC which reads as follows:

(cid:145)Where the requested document was written by a natural or legal
person, a Member State, another Community institution or body,
or any other national or international body, the application must
not be sent to the Council, but direct to the author(cid:146).

The letter stated that the responsibility for the calendar of
meetings lies with the presidency and not with the Council’s
General Secretariat, and that Mr B. must therefore ask the Irish
presidency directly. On 15 August 1996, he wrote to the Irish
Permanent Representation to the European Union requesting
the calendar of meetings. The request was refused on the
grounds that (cid:145)it is not proposed to make publicly available the
information in question(cid:146).

Mr B. claimed that the General Secretariat was wrong to refuse
his request by reference to Article 2(2) of Decision 93/731/EC
because the Presidency is not (cid:145)another Community institution
or body(cid:146) but rather a function or office of the Council itself.

The inquiry

The Council’s opinion

The complaint was forwarded to the Council. The Council’s
opinion on the complaint included the following:

COUNCIL: PUBLIC ACCESS TO DOCUMENTS

Decision on complaint 1056/25.11.96/Statewatch/UK/IJH against
the Council

(cid:145)In this case, the General Secretariat considered that the detailed
timetable was only an informal tool for organising the Council’s
proceedings, being constantly updated by the Presidency and
neither systematically distributed nor filed by the Secretariat. The
dates of meetings scheduled in the timetables are provisional and
are formalised only by convening the meeting officially by telex.

The complaint

In July 1996, Mr B. wrote to the General Secretariat of the
Council requesting a copy of
the calendar of meetings of
Council steering groups and working parties in the field of
Justice and Home Affairs for the period of the Irish presidency
(July to December 1996). His request was made under the

As the General Secretariat was therefore unable to determine
precisely whether the version of the timetable for meetings in its
possession was the final version of that document, it asked Mr B.
to address himself directly to the Presidency which alone is able to
its
provide precise information concerning the current state of
planning.

(1) Council Decision 93/731/EC of 20 December 1993 (OJ L 340,

31.12.1993, p. 43).

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Official Journal of the European Communities

18.10.1999

In the light of Mr B.’s arguments, the Secretary-General is now
reconsidering its practice and its interpretation of Article 2(2) of
Decision 93/731/EC with regard to requests
to
documents of this kind(cid:146).

for access

from the Ombudsman for

In reply to a request
further
information, the Council confirmed that it had already changed
its practice and that the General Secretariat had granted access
to the calendars circulated by the Luxembourg presidency. It
also stated its intention to follow the same policy in similar
cases in the future.

these calendars have no
The Council also made clear that
official and binding character and are subject to modifications
throughout the term of the presidency and that the official
convocation of meetings is done by means of telexes setting
out the dates and agendas.

raised a new issue;
the confirmatory
application of 28 July 1997 for access to the agendas of the
(cid:145)Senior level Group(cid:146) and the (cid:145)EU-US Task Force(cid:146).

the refusal of

i.e.

The Council’s response

response to the Ombudsman’s

In its
further
information about these matters, the Council stated that it does
not consider its presidency to be (cid:145)another institution(cid:146), separate
from the Council, within the meaning of Article 2(2) of
Decision 93/731/EC. The Council went on to state that a
distinction should be drawn between:

request

for

(cid:145)documents written by the Member State holding the presidency in
its capacity as presidency of the Council and

The complainant’s observations

documents written by that Member State not relating to its role
as presidency of the Council(cid:146).

In his observations, Mr B. made in summary the following
points.

(i)

The Council’s response had clarified that the Council is
now supplying copies of the timetables of
justice and
home affairs meetings held under each presidency. This
element of the complaint was therefore satisfied.

(ii) The Council had failed to respond to the claim that the
Presidency is not (cid:145)another Community institution or body(cid:146)
within the meaning of Article 2(2) of Decision
93/731/EC.

(iii) The Council was continuing to refuse access to certain
documents on this ground. Mr B. referred in particular to
the agendas of the (cid:145)Senior level group(cid:146) and the (cid:145)EU-US
Task Force(cid:146). His confirmatory application for access to
these documents, dated 28 July 1997, had been refused
by the Council on the grounds that
the agendas in
question were established jointly by the presidency, the
Commission and the United States authorities and that
Article 2(2) of Decision 93/731/EC applied because the
agendas in question were not prepared under the sole
responsibility of the Council or its Presidency.

Further inquiries

After careful consideration of the Council’s opinion and the
complainant’s observations,
it appeared that further inquiries
were necessary: firstly, in order to clarify the Council’s position
concerning the status of its presidency within the meaning of
Article 2(2) of the Decision on public access to documents
and, secondly, because the complainant’s observations had

The Council also expressed the view that Article 2(2) of
Decision 93/731/EC is applicable to the second category of
documents.

As regards the agendas of the (cid:145)Senior level group(cid:146) and the
(cid:145)EU-US Task Force(cid:146), the Council stated as follows:

that

(cid:145)The negative response to Mr B.’s request dated 28 July 1997 (cid:133)
the presidency, which
fact
was not motivated by the
contributed to the establishment of the document, was considered
as (cid:147)another institution(cid:148) within the meaning of Article 2(2) of
Decision 93/731/EC.
In this particular case the agendas in
question were not prepared under the sole responsibility of the
presidency, but jointly by the presidency, the Commission and the
United States authorities(cid:146).

The complainant’s complementary observations

In observations on the Council’s response, Mr B. stated that he
was pleased that
the Council no longer considered its
presidency to be another institution separate from the Council.
He also made, in summary, the following points:

(i) a document written by a Member State which is put on
the formal agenda of a justice and home affairs Council
and which is subsequently agreed or adopted thereby
becomes part of the justice and home affairs (cid:145)acquis(cid:146) and
should be open to an application under Decision
93/731/EC; a document which is not subsequently agreed
or adopted but which forms part of the process of making
or implementing policies should also be open to such an
application;

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Official Journal of the European Communities

C 300/97

(ii) the Council’s reasoning of its refusal of access to agendas
of the Senior level group and the EU-US Task Force was
unacceptable: European citizens should be able to apply to
the Council under Decision 93/731/EC for access
to
documents of which the Council Presidency is a joint
author.

The Decision

presidency of the Council and other documents written
by that Member State. The complainant also made
observations concerning the status of documents written
by a Member State and placed on the formal agenda of
justice and home affairs meetings. Both the Council’s
distinction and the complainant’s observations appear to
refer to hypothetical cases rather than to the documents
which were the subject of
is not
appropriate,
for the Ombudsman to take a
therefore,
position on the matter in this decision.

the complaint.

It

1. Access to calendars of Council meetings

3.

The refusal of access to documents of which the Council
is a joint author

1.1. The original complaint concerned a refusal of access to
the calendars of Council meetings planned for the Ireland
presidency (July to December 1996).

1.2. The Ombudsman’s inquiry established that the Council
to the
had changed its practice and granted access
calendars circulated by the Luxembourg presidency. The
Council also stated its intention to follow the same policy
in similar cases in the future. The complainant declared
that he was satisfied with this response.

1.3. The Council has therefore taken steps to settle this aspect
the

complaint

satisfied

thereby

and

has

of
the
complainant.

2.

The status of the Presidency

2.1. The Council’s refusal of

the complainant’s request

for
access to calendars of Council meetings referred to Article
2(2) of Council Decision 93/731/EC on public access to
Council documents. The complainant claimed that
the
Council’s reasoning was wrong, because the presidency is
not (cid:145)another institution or body(cid:146) within the meaning of
Article 2(2).

2.2. During the Ombudsman’s inquiry, the Council expressly
it does not consider its presidency to be
stated that
(cid:145)another institution(cid:146) within the meaning of Article 2(2) of
Decision 93/731/EC. The complainant stated that he was
pleased by this response.

2.3. The Council has therefore taken steps to settle this aspect
the

complaint

satisfied

thereby

and

has

of
the
complainant.

2.4. In its response to the Ombudsman’s request for further
information,
the Council drew a distinction between
documents written by a Member State in its capacity as

3.1. The complainant’s application, dated 28 July 1997, for
access to agendas of
the Senior level group and the
EU-US Task Force was rejected by the Council on the
grounds that the agendas in question were established
jointly by the Council’s presidency, the Commission and
the United States authorities and that Article 2(2) of
Decision 93/731/EC applied because the agendas
in
question were not prepared under the sole responsibility
of the Council or its presidency.

3.2. The objective of Decision 93/731/EC is to give effect to
the principle of the largest possible access for citizens to
information with a view to strengthening the democratic
character of the institutions and the trust of the public in
the administration (1).

3.3. Article 2(2) is not presented in the form of an exception
to the general rule of public access. In practice, however,
it functions as an exception, since its consequence is that
incoming documents are completely excluded from the
range of application of
rule. To include
documents of which the Council is a joint author within
the scope of Article 2(2) would considerably broaden the
scope of this de facto exception.

the general

3.4. According to the case-law of the Court of First Instance,
where a general principle is established and exceptions to
that principle are then laid down, the exceptions should
be construed and applied strictly, in a manner which does
not defeat the application of the general rule (2).

3.5. Neither the express wording of Article 2(2) nor the
abovementioned case-law supports the Council’s position
that documents of which it is a joint author fall within
the scope of Article 2(2). It appears therefore that the
Council’s rejection of the complainant’s application for

(1) Case

T-174/95,

Svenska

Journalistf(cid:246)rbundet

(Tidningen

Journalisten) v Council, judgment of 17 June 1998, paragraph 66.
(2) See cases T-194/94, John Carvel and the Guardian Newspapers v
Council [1995] ECR II-2765; T-105/95, World Wide Fund for
Nature (WWF) v Commission [1997] ECR II-313; T-174/95 (note
1 above).

C 300/98

EN

Official Journal of the European Communities

18.10.1999

access to agendas of
the Senior level group and the
EU-US Task Force was based on a misapplication of
Decision 93/731/EC. It must be recalled, however, that
the highest authority on the meaning and interpretation
of Community law is the Court of Justice.

Conclusion

The Council has taken steps to settle the aspects of
the
complaint dealt with in parts 1 and 2 of this Decision and has
thereby satisfied the complainant.

As regards the aspect of the case dealt with in part 3 of this
Decision,
it appears necessary to make the following critical
remark.

Neither the express wording of Article 2(2) nor the case-law of
the Court of First Instance supports the Council’s position that
documents of which it is a joint author fall within the scope of
Article 2(2). It appears therefore that the Council’s rejection of
the complainant’s application for access to agendas of
the
Senior level group and the EU-US Task Force was based on a
It must be recalled,
misapplication of Decision 93/731/EC.
however,
the highest authority on the meaning and
interpretation of Community law is the Court of Justice.

that

Article 7(3) of Council Decision 93/731/EC expressly provides
for an applicant whose confirmatory application for access to
documents is rejected to be informed of
the possibility of
to the Ombudsman. The Ombudsman’s critical
complaint
the
the Council
remark implies
complainant’s confirmatory application dated 28 July 1997
and give access to the documents requested, unless one or
more of the exceptions contained in Article 4 of Decision
93/731/EC applies.

should reconsider

that

Since it was for the Council to carry out this reconsideration
and communicate the result thereof to the complainant, the
Ombudsman closed the case.

Committee held on 3 and 4 March 1994. The application was
made under the Council Decision on public access to Council
documents (1) (hereafter Decision 93/731/EC).

The General Secretariat of the Council gave access to 17 of 41
documents requested and refused access to the 24 others. The
complainant made a confirmatory application for 23 of the
documents to which access had been refused. The presidency
of
the Council replied granting access to a further seven
documents, but confirming the refusal of access to the other
16 documents.

to the Ombudsman concerned 15 of

the
The complaint
documents to which access was refused by the reply to the
confirmatory application. The Council explained the refusal of
access to these documents as follows.

to

involved balancing your interest

(cid:145)With regard
documents 5375/95; 5406/95+COR1,
5405/95; 5354/95; 5319/95; 11020/93; 11565/93;
11151/93; 10448/93; SN 1100/94, consideration of your
in gaining access to
request
these particular documents against the interest of the Council in
maintaining the confidentiality of its deliberations. The Council
concluded that the latter interest outweighed the former in this
case, particularly since the documents in question record detailed
national positions with regard to Conventions which have only
recently been established or other legal instruments still under
discussion or very recently adopted. They also contain internal
information on procedures for the recruitment of staff to the
institutions and the choice of consultants in the JHA field.
Moreover, one of these documents is a working document for
internal organisation purposes on protection of
classified
information, and others contain opinions of the Council Legal
Service, which are for the exclusive use of the Council
in its
deliberations although they are not binding on it.

With regard to the other documents, the relevant considerations
under Article 4(1) of Council Decision 93/731/EC are the
following:

(cid:151) protection of

the public

security) Docs.
interest
12247/1/94; SN 1053/94; 10166/4/94; 9908/2/93+
ADD 1,

(public

REFUSAL OF ACCESS TO DOCUMENTS: INADEQUATE REASONING

Doc. 5121/95.

(cid:151) protection of

the public interest

(international

relations)

Decision on complaint 1057/25.11.96/Statewatch/UK/IJH against
the Council

The complaint

In February 1996, Mr B. wrote to the Council requesting
copies of 24 reports considered at the meeting of the Council
of Justice and Home Affairs held on 9 and 10 March 1994
the K4
and of 17 reports considered at

the meeting of

The nature of the information contained in these documents,
particularly with regard to the fight against organised crime
within and outside the European Union, has led the Council to
the conclusion that access to these documents must not be
allowed(cid:146).

The complaint
reasoning, quoted above, was

to the Ombudsman was that

inadequate. Specifically,

the Council’s
the

(1) Council Decision 93/731/EC of 20 December 1993 (OJ L 340,

31.12.1993, p. 43).

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Official Journal of the European Communities

C 300/99

complainant mentioned that
established(cid:146) and (cid:145)very recently adopted(cid:146) have no basis
Decision 93/731/EC.

the terms (cid:145)only recently been
in

accepted the refusal of access to certain documents but
maintained his claims in relation to others.

The inquiry

The Council’s opinion

In summary, the Council claimed in its opinion that it had
respected the obligation to give reasons for refusal of access to
the documents in question, in accordance with the principles
laid down by established case law.

(cid:145)Access to a clearly identified set of documents was refused to
protect the confidentiality of the Council’s proceedings pursuant
to Article 4(2) of Decision 93/731/EC, while access to another
clearly identified set of documents was refused for reasons of
public
relations)
pursuant to Article 4(1) of Decision 93/731/EC.

security and international

interest

(public

((cid:133))

With regard to documents to which access was refused pursuant
to Article 4(1) of Decision 93/731/EC, the letter of 2 May
1996 adduces sufficient imperative reasons justifying application
of the exception on grounds of protection of the public interest.

With regard to documents to which access was refused pursuant
to Article 4(2) of Decision 93/731/EC, it should be noted that
the Council did not refuse access to the documents on the
grounds that they (cid:147)had only recently been established(cid:148), as Mr B.
claims in his complaint. The justification for the refusal of
access to the documents resides in the fact that they contain
detailed national positions and that the Council’s interest in
therefore
protecting
to those
outweighed Mr B’s
documents.(cid:146)

of
its proceedings
in obtaining access

confidentiality
interest

the

The complainant’s observations

The complainant’s observations on the Council’s opinion
accepted that access to some of the documents could properly
be refused. However, he maintained the complaint in relation
to documents 10448/93, 5354/95, 5319/95, SN 1053/94 and
5121/95 and asked the Ombudsman to examine whether
refusal of access to these documents was justified.

The Decision

1.

The complainant’s claims

1.1. The complainant claimed that the Council’s reasoning for
refusing access to some of the documents which were the
subject of a confirmatory application dated 2 April 1996
the complainant
In his observations,
was inadequate.

2.

The legal principles

2.1. Article 4 of Decision 93/731/EC provides

two
categories of exception to the principle of general access
for citizens to Council documents.

for

(public
stability,

the public
interest
relations, monetary

2.2. Article 4(1) provides that access to a Council document
cannot be granted if its disclosure could undermine the
security,
protection of
international
court
proceedings,
inspections and investigations). In order to
demonstrate that the disclosure of particular documents
could undermine the protection of the public interest, the
Council is obliged to consider in respect of each requested
document whether,
the information
available to it, disclosure is in fact likely to undermine
one of the facets of public interest protected. If that is the
case,
is obliged to refuse access to the
the Council
documents in question (1).

in the light of

in order

to protect

the confidentiality of

2.3. Article 4(2) provides that the Council may also refuse
access
its
proceedings. The Council must exercise the margin of
discretion it enjoys in applying Article 4(2) by striking a
genuine balance between on the one hand, the interest of
the citizen in obtaining access to the documents and, on
the other, any interest of
its own in maintaining the
confidentiality of its deliberations (2).

at

2.4. According to established case-law,

the statement of
reasons for a decision refusing access to a document must
contain,
each category of documents
concerned, the particular reasons for which the Council
considers
the requested documents
comes within the scope of one of the exceptions provided
for in Decision 93/731/EC.

that disclosure of

least

for

3.

The refusal of access under Article 4(1)

3.1. Access to two of the documents in dispute was refused
confirmatory

under Article 4(1).
application, the Council explained that:

In reply

to the

(cid:145)The nature
in these
documents, particularly with regard to the fight against

information contained

the

of

(1) Case T-124/96 Interporc v Commission,

judgment of 6 February
1998, paragraph 52; Case T-83/96, Gerard van der Wal v
Commission,
judgment of 19 March 1998, paragraph 43; Case
T-174/95, Svenska Journalistf(cid:246)rbundet (Tidningen Journalisten) v
Council, judgment of 17 June 1998.

(2) Case T-194/94 John Carvel and Guardian Newspapers v Council

[1995] ECR II-2765, paragraphs 64 and 65.

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Official Journal of the European Communities

18.10.1999

organised crime within and outside the European Union,
has led the Council to the conclusion that access to these
documents must not be allowed.(cid:146)

3.2. According to the Court of First Instance, the concept of
public security could encompass
in which
public access to particular documents could obstruct the
attempts of authorities to prevent criminal activities (1).
The Council’s reference to the fight against organised
crime is therefore relevant to one of the facets of the
public interest protected by Article 4(1).

situations

3.3. In its reply to the complainant’s confirmatory application,
the Council mentioned (cid:145)the fight against organised crime(cid:146)
but provided no further explanation of its reference to the
(cid:145)nature of the information(cid:146) contained in the documents.
The Ombudsman therefore considers that
the Council
to provide the
failed to comply with the requirement
complainant with the particular reasons which led it to
consider that disclosure of the documents came within
the scope of Article 4(1).

4.

The refusal of access under Article 4(2)

4.1. In its reply to the confirmatory application, the Council
referred to several different factors to justify its refusal of
access to 10 documents under Article 4(2). However, in
its opinion to the Ombudsman the Council stated that:

fact

in the

(cid:145)The justification for the refusal of access to the documents
resides
they contain detailed national
positions and that the Council’s interest in protecting the
confidentiality of
its proceedings therefore outweighed Mr
B.’s interest in obtaining access to those documents(cid:146).

that

4.2. The Council’s justification of

contains

document which

its refusal of access to
documents under Article 4(2), in particular the use of the
word (cid:145)therefore(cid:146), implies that access should be refused to
every
national
positions, regardless of how insignificant a proportion of
the document this element may constitute, or of what the
other
The
Ombudsman does not consider that this reasoning allows
it to be confirmed that the Council complied with the
obligation to strike a genuine balance between the
interests involved.

document may

contents

detailed

the

be.

of

Conclusion

On the basis of
into this
the Ombudsman’s
complaint, it appears necessary to make the following critical
remarks.

inquiries

(1) Case

T-174/95,

Svenska
Journalisten) v Council, judgment of 17 June 1998.

Journalistf(cid:246)rbundet

(Tidningen

the

In its reply to the complainant’s confirmatory application, the
Council mentioned the fight against organised crime but
provided no further explanation of its reference to the nature
information contained in the documents. The
of
Ombudsman therefore considers that
failed to
comply with the requirement to provide the complainant with
the particular reasons which led it to consider that disclosure
of the requested documents came within the scope of Article
4(1).

the Council

The Council’s justification of its refusal of access to documents
under Article 4(2), in particular the use of the word (cid:145)therefore(cid:146),
implies that access should be refused to every document which
regardless of how
contains detailed national positions,
insignificant a proportion of the document this element may
constitute, or of what the other contents of the document may
be. The Ombudsman does not consider that this reasoning
allows it to be confirmed that the Council complied with the
obligation to strike a genuine balance between the interests
involved.

In relation to both the above critical remarks,
recalled that
interpretation of Community law is the Court of Justice.

it must be
the highest authority on the meaning and

Article 7(3) of Council Decision 93/731/EC expressly provides
for an applicant whose confirmatory application for access to
documents is rejected to be informed of
the possibility of
to the Ombudsman. The Ombudsman’s critical
complaint
the
the Council
remark implies
complainant’s confirmatory application dated 2 April 1996
and give access to the documents requested, unless one of the
exceptions contained in Article 4 of Decision 93/731/EC
this
applies. Since it
the
reconsideration
complainant, the Ombudsman closes the case.

to carry out
to
result

for
communicate

should reconsider

the Council

is
and

that

the

OPEN COMPETITION: FAILURE TO PROVIDE INFORMATION ON
POSSIBLE MEANS OF APPEAL

Decision on complaint 16/97/JMA against
European Union

the Council of

the

The complaint

In January 1997, Mr B.S. complained to the Ombudsman
about the decision of the selection board of open competition
Council/C/374, to reject his application.

The selection board justified its decision on the grounds that
the complainant had not forwarded documentary evidence of
his knowledge of a second Community language. Neither the
letter of the selection board, nor the notice of the competition
indicated any potential means to appeal against the board’s
decision.

18.10.1999

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Official Journal of the European Communities

C 300/101

In his complaint to the Ombudsman Mr B.S. claimed the right,
as a citizen, to contest a decision taken by the Community
public administration. He further claimed and that he was not
able to exercise this right because he had not received proper
information about it from the Council.

Instance required a previous appeal to the selection board. The
fact that 86 other candidates had contested the decision of the
selection board could not justify the failure of the board to
inform him of his rights to appeal, as well as the relevant
formalities.

The inquiry

The Council’s opinion

The complainant referred also to the regulation of similar
situations by Spanish law, explaining that in accordance with
the Spanish Law of Administrative Procedure,
the public
administration concerned is obliged to inform the recipient of
a decision of the means to appeal against it as an essential
requirement for the validity of the administrative act.

The complaint was forwarded to the Council. The Council’s
opinion first pointed out
the complainant had not
that
previously sent any complaint to the institution before seeking
redress from the Ombudsman.

The Decision

1. Admissibility of the case

As regards the alleged lack of means to contest the decision of
the selection board,
the Council referred to a number of
possible options which the complainant could have used. First,
he could have appealed to the Court of First Instance under
Article 91 of the Staff Regulations within three months of the
notification of
the board’s decision, without making any
previous appeal under Article 90(2).

1.1. Under the scheme established by the Treaty and the
of
admissibility
the
of
Statute
complaints
the Ombudsman in
accordance with Community law. Community institutions
and bodies are naturally welcome to make their views on
the subject known to the Ombudsman.

the Ombudsman,
determined by
is

Alternatively, he could have submitted a complaint under
Article 90(2) of the Staff Regulations within three months of
the notification of the board’s decision. 86 candidates whose
application had been rejected had followed this course and had
lodged a complaint with the Council’s Secretary-General.
In
order to ensure a proper consideration of these appeals, the
written tests of the competition were scheduled for 26 April
1997, several months after the selection board had taken its
decision on admission to the written tests.

The Council also stated that according to the relevant case-law
Justice,
of
to overburden the
the Court of
organisation of
competitions with a high number of
candidates, the General Secretariat was not obliged to draw the
attention of candidates whose candidature was rejected to the
existing means of appeal.

in order not

that

added

the Council

recent
Nevertheless,
competitions and in order to give candidates an informal
means of appeal, the General Secretariat expressly included a
provision in the notice of open competitions,
informing
rejected applicants that they may request the re-examination of
their applications by the selection board within a brief period.

in more

The complainant’s observations

In his observations, the complainant indicated first that not
having been informed by the Council of his rights to appeal,
he did not know whether any application to the Court of First

1.2. In order to be admissible, a complaint must be preceded
by the appropriate administrative approaches
to the
institutions and bodies concerned (Article 2(4) Statute). In
view of the different linguistic versions of this text (1), and
taking into account
the
suitable administrative
Ombudsman evaluates whether
approaches
the
been made
have
circumstances of each specific case.

the purpose of the provision,

depending

on

an open competition,

1.3. Since this case involves a decision taken by a selection
board of
against which the
complainant might have directly appealed to the Court of
First Instance, the Ombudsman considers that the criteria
for the admissibility of the complaint were met, without
further requirements.

2.

Information to be given to the complainant

2.1. In the view of the complainant, his right to contest a
negative decision by the selection board could not be
exercised because he had not been informed of
the
existence of such a right, let alone of the means for its

(1) As stated in the Ombudsman’s previous decision on Complaint
(cid:145)There seems to be a slight discrepancy
45/26.7.95/JPB/PD/B-dk:
between the different
this provision. The
language versions of
Danish version quite rightly uses the term (cid:147)fornłdne(cid:148) and gives the
impression that such administrative approaches are necessary. On
the other hand, for instance the English, French, German, Spanish
and Swedish versions use the terms (cid:147)appropriate(cid:148), (cid:147)appropriØes(cid:148),
(cid:147)geeigneten(cid:148), (cid:147)adecuadas(cid:148) and (cid:147)l(cid:228)mpliga(cid:148) respectively which seems
to imply that suitable administrative approaches must be made(cid:146).
(European Ombudsman, Annual Report 1996, page 45).

C 300/102

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Official Journal of the European Communities

18.10.1999

exercise. The Council argued, however, that by informing
candidates of their means to appeal, the organisation of
competitions with a large number of candidates would be
overburdened.

Justice has taken into account

2.2. In evaluating the decisions taken by a selection board, due
consideration has to be given to the need to ensure an
orderly development of
the competition, especially in
competitions with a large number of candidates. The
Court of
this factor in
defining the duty of selection boards to give reasons to
rejected candidates. Hence,
the
Court has stated that it may be acceptable in competitions
with a large number of candidates that selection boards
initially send to (rejected) candidates merely information
on the criteria for selection and the result thereof, and
not give individual explanations until later (1).

in established case-law,

2.3. However, the organisation of open competitions should
not necessarily be disrupted or unduly overburdened by
the fact that the selection board gives general information
on the means for a potential appeal to rejected candidates
through a standard form. Adequate information on the
rights vested by Community law on citizens and on the
means to protect them is a basic condition for the proper
exercise of those rights, and ultimately for their respect.
to follow principles of good
Therefore,
administration,
in its
dealings with citizens, they are properly informed of their
rights and obligations. Particularly so in cases in which
the initiative to invite individual
the Council
applications
the
recruitment of its civil servants.

takes
for open competitions

the Council should ensure that

in order

aimed

at

2.4. The European Ombudsman took note, however, of the
in more recent
new policy adopted by the Council
the competition
competitions, whereby the notice of
European
of
in the Official
published
Communities now includes a provision stating that rejected
candidates may request, within a short period of time,
that the selection board re-examine their application.

Journal

the

In view of this change of policy by the Council, there
were no grounds for the Ombudsman to further pursue
this aspect of the case.

3.

Failure to provide accurate information on the notice of
the competition

3.1. The

board

selection

the
based
complainant’s application on the grounds that he had not
second
provided evidence of his knowledge of
Community language.

rejection

its

of

a

3.2. According to the Specific conditions for the admission to
the competition (point B of the notice of competition),
documentation was necessary in relation to education
(point a), professional experience (point b), typing skills
(point c) and age (point e). Only for these aspects, the
notice of the competition specifically required some type
of accreditation by means of certificates or any other
written evidence.

3.3. It is good administrative behaviour to provide the most
accurate information possible about
the conditions of
eligibility for a post. This information should enable the
applicant to judge whether he should apply for it, what
supporting documents are important for the proceedings,
and must
therefore be enclosed with the application
form (2). The notice of competition serves the function of
properly informing the applicant in that competition of
the requirements and conditions to be fulfilled.
In the
present case, the notice of competition did not explicitly
state the requirement of submitting documents certifying
the knowledge of a second Community language. Under
these
not
reasonably be expected to forward these documents. The
Council therefore failed to provide the complainant with
clear and accurate information regarding the fact
that
knowledge of a second Community language had to be
supported by written evidence.

circumstances,

complainant

could

the

Conclusion

On the basis of the Ombudsman’s inquiries into the complaint,
it appeared necessary to make the following critical remark.

it, what

is good administrative behaviour

It
to provide the most
accurate information possible about the conditions of eligibility
for a post. This information should enable the applicant to
judge whether he should apply for
supporting
documents are important
the proceedings, and must
for
therefore be enclosed with the application form. The notice of
competition serves the function of properly informing the
and
applicant
In this
conditions
the notice of
competition did not
requirement of
explicitly state
submitting documents certifying the knowledge of a second
the
Community
complainant could not reasonably be expected to forward
these documents. The Council therefore failed to provide the
complainant with clear and accurate information regarding the
fact that knowledge of a second Community language had to
be supported by written evidence.

competition of
fulfilled.

language. Under

in that
to be

circumstances,

requirements

case,
the

these

the

this aspect of

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

(1) Case 225/82 Verzyck v Commission [1983] ECR 1991, paragraph

16.

(2) Case T-158/89, Van Hecken v ESC [1991] ECR II-1341.

18.10.1999

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Official Journal of the European Communities

C 300/103

ACCESS TO DOCUMENTS

Decision on complaint 634/97/PD against the Council

questionnaire on the implementation of the aforementioned Joint
Action. This compilation has not yet been examined by the
relevant working party, and the report mentioned in the Joint
Action has not yet been drawn up.

The complaint

In July 1997, Mr P. made a complaint to the Ombudsman
against the Council. By letter of 19 February 1997 to the
Council,
the complainant had requested copies of various
agendas of Council committees and other documents. The
Council rejected parts of the complainant’s application, relying
on the rules of its Decision 93/731/EC on public access to
Council documents (1).

As regards the agendas, the Council informed the complainant
that it had decided to provide him with copies of agendas
covering a period of six months instead of two and a half
years as requested by the complainant. This decision was
reached on the basis of Article 3(2) of Decision 93/731/EC
which provides that the Council shall find a (cid:145)fair solution(cid:146) to
deal with repeat applications and/or those which relate to very
large documents. The complainant contested the legality of
that decision, arguing that Article 3(2) could not apply to a
large number of documents, but could only be applicable in
respect of separate documents which were (cid:145)large(cid:146); according to
the separate agendas would be
the complainant, none of
longer than about three pages.

As regards the other documents, the Council refused access to
the following:

(cid:151) (cid:145)Schoolchildren/5143(cid:146), a document compiling Member
States’ replies to a questionnaire on the application of a
Joint Action of 1994 on (cid:145)travel facilities within the EU for
schoolchildren who are third-country nationals(cid:146),

(cid:151) (cid:145)CIREA/1452(cid:146), a draft report with detailed information on

CIREA’s activities 1994 to 1996 (2),

(cid:151) (cid:145)Asylum/8418(cid:146), consisting of two documents containing
detailed answers from Member States to a questionnaire
on asylum principles and practices,

(cid:151) (cid:145)Racism/7141(cid:146), a note on racist crimes from a Council

working group on terrorism.

In refusing access,
following statements of reasoning to the complainant.

the Council had communicated the

As concerned (cid:145)Schoolchildren/5143(cid:146), the Council stated:

(cid:145)Document 5143/1/97 is a note from the General Secretariat
containing a compilation of replies of the Member States to a

(1) Council Decision 93/731/EC of 20 December 1993 (OJ L 340,

31.12.1993, p. 43).

(2) CIREA stands for (cid:145)Centre for information, discussion and exchange

on asylum(cid:146).

Having balanced your interest in gaining access to the document
against the interest of the Council in maintaining confidentiality
the latter
of
its deliberations,
interest outweighed the
in
case,
accordance with Article 4(2) of the Decision.

the Council has concluded that
in this particular

former

Indeed, disclosure of this document at this stage could hamper the
scheduled discussions of the matter and could have negative effects
on the functioning of the exchange of such information in the
future(cid:146).

As regards (cid:145)CIREA/1452(cid:146), the Council stated:

(cid:145)Having balanced your interest in gaining access to this particular
document against the interest of the Council in maintaining the
confidentiality of its proceedings, the Council has concluded that
the latter
in accordance with
Article 4(2) of Decision 93/731/EC.

interest outweighed the former,

This document, which contains detailed information about
the
functioning of CIREA, has not yet been examined nor approved
this
by the Council. The Council considers that disclosure of
document at this stage could hamper the planned discussions on
this matter(cid:146).

the Council
As regards ’Asylum/8418’ and ’Racism/7141’,
stated that disclosure of the two documents would undermine
the protection of public interest under Article 4(1) of Decision
93/731/EC.

In his complaint to the Ombudsman, the complainant claimed
that the above reasoning was inadequate.

Furthermore, as a separate allegation he claimed that in reply
to the initial application for documents, the Council had failed
to balance the interests of citizens in openness against the
Council’s interest in imposing confidentiality. The complainant
submitted that under Decision 93/731/EC this balancing,
which is required by the case law of the Community courts,
must take place in the reply to the initial application for access
to documents as well as in the reply to the confirmatory
application which may be submitted following an initial
rejection.

Finally, the complainant claimed that the Council’s failure to
set up a document register amounted to maladministration.
Although Decision 93/731/EC does not impose an obligation
in this respect, the lack of a document register made it, in the
complainant’s opinion, exceptionally difficult for applicants to
know which internal documents exist.

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Official Journal of the European Communities

18.10.1999

The inquiry

The Decision

The Council’s opinion

The complaint was forwarded to the Council. Concerning
Article 3(2) of Decision 93/731/EC, the Council in its opinion
made the following remarks.

The objective of Council Decision 93/731/EC is to give effect
to the largest possible access for citizens to information, with a
view to strengthening the democratic
the
institutions and the trust of the public in the administration (1).

character of

1. As concerns Article 3(2)

Article 3(2) of Decision 93/731/EC is aimed at safeguarding
efficiency in the institution’s administration in exceptional
legal
cases.
interpretation, the Article must be interpreted in its context
and in a way which gives it practical effect.

In accordance with the

rules of

general

refers to,

In this light, application of a fair solution within Article 3(2)
to deal with repeat applications cannot be confined to
referring only to identical documents. The concept of (cid:145)repeat
application(cid:146)
inter alia, cases in which a person
regularly and systematically requests over a long period of time
access to a large number of, or even all, the documents of the
same type, not necessarily identical.
the
number of documents requested is one of the criteria to be
taken into account.

In this context,

the Council

As concerned the documents to which access was refused, the
Council contested that the statements of reason quoted above
were inadequate. However, as concerns the use made of Article
4(1),
the
arguments put forward by the complainant, and considered
that it would have been more correct to apply the exception in
to (cid:145)Asylum/8418(cid:146) and
Article 4(2) when refusing access
(cid:145)Racism/7141(cid:146).

it had taken note of

stated that

this

Concerning the alleged failure to balance the interests in its
reply to the complainant’s initial application,
the Council
stated that
requirement had in fact been observed.
Furthermore, it considered that its replies to the complainant
in this respect had made it clear that the relevant exceptions
would be relied on, and on what grounds. The Council
conceded, though, that it had not explicitly stated that the
balancing had been carried out. It would therefore in future
cases make sure that the initial statements of grounds would
state that the balancing of interests had in fact taken place.

Concerning the lack of a central document register of Council
documents, the Council
informed the Ombudsman that the
setting up of such a register was currently under examination.
The difficulties to be overcome concerned the need to ensure
that such a register was reliable and exhaustive.

The complainant’s observations

The issue raised by the complaint was identical to the one
in complaint 1053/25.11.1996/Statewatch/UK/IJH against
therefore referred to the
the Council. The reader
is
decision of
in
relation to that complaint.

the Ombudsman, dated 28 July 1998,

2. As concerns the statement of reasons

2.1. According to established case-law,

the statement of
reasons for a decision refusing access to a document must
contain the particular reasons for which the Council
considers
the requested documents
comes within the scope of one of the exceptions provided
for in Decision 93/731/EC.

that disclosure of

2.2. As concerned the documents (cid:145)Schoolchildren/5143(cid:146) and
(cid:145)CIREA/1452(cid:146), access was refused on basis of Article 4(2)
which provides that the Council may refuse access in
order to protect its interest in the confidentiality of its
proceedings. The Council’s statements of reason were
based on the consideration that the documents related to
subject matters which were still being discussed in the
information
Council and that
between the Council and the Member States could be
harmed by disclosure.

the future exchange of

2.3. The Ombudsman observed that in public access regimes,
it was commonly considered important that the disclosure
of documents which relate to ongoing discussions could
hamper such discussions. However, if the Council’s public
access regime is to attain its objective of strengthening
the democratic character and the public trust
in the
institutions, such a consideration should be applied with
prudence. In its statement, the Council referred to this
specifying why it was
broad consideration, without
relevant in relation to the documents in question. Thus
the Council’s statement of reasons does not enable the
Ombudsman to ascertain whether it has correctly applied
Article 4(2). The Ombudsman therefore finds that
the
complainant rightly alleged that the Council’s reasoning
was inadequate.

The complainant maintained his complaint in substance.

(1) Case

T-174/95,

Svenska

Journalistf(cid:246)rbundet

(Tidningen

Journalisten) v Council, judgment of 17 June 1998, paragraph 66.

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2.4. As

the

concerns

(cid:145)Asylum/8418(cid:146)

and
documents
(cid:145)Racism/7141(cid:146), the Council stated in its opinion that its
reliance on Article 4(1) was incorrect, and that Article
4(2) should have been applied instead. The Council will
therefore have to reconsider its refusal of access under
in the light of the Ombudsman’s findings
Article 4(2)
above.

3. As concerns the obligation to balance interests under
Article 4(2) in reply to the initial application for
documents

that

noted

Council

had
the
The Ombudsman
acknowledged that
it should also balance the relevant
interests at the initial stage of a public access application
when relying on Article 4(2). The Council had also
recognised a duty to make it clear in its initial statement
of reason that such balancing had in fact been carried
out. The Ombudsman therefore did not consider
it
justified to inquire further into this grievance.

Article 7(3) of Council Decision 93/731/EC expressly provides
for an applicant whose confirmatory application for access to
documents is rejected to be informed of
the possibility of
to the Ombudsman. The Ombudsman’s critical
complaint
remark implied that
the
the Council
complainant’s confirmatory applications and give access to the
documents requested, unless one of the exceptions contained
in Article 4 of Decision 93/731/EC applied. Since it was for
the Council to carry out this reconsideration and communicate
the result to the complainant, the Ombudsman closed the case.

should reconsider

3.5.3. THE EUROPEAN COMMISSION

ITOIZ DAM: COMMISSION’S INABILITY TO GIVE ADEQUATE
REASONS FOR CONSIDERING THERE TO BE NO INFRINGEMENT

Decision on complaint 472/6.3.96/XP/ES/PD against the European
Commission

4. As concerns a Council register of documents

The complaint

As it appeared that the Council was setting up a register
of documents,
it
justified to inquire further into this grievance.

the Ombudsman did not consider

Conclusion

On basis of the Ombudsman’s inquiries into this complaint, it
appeared necessary to make the following critical remarks.

1. The Ombudsman considered that the Council had wrongly
interpreted Article 3(2) of Decision 93/731/EC and that it
was not entitled to rely on that Article as a reason to reject
part of the complainant’s application for documents in this
case. The term (cid:145)repeat applications(cid:146) in Article 3(2) does not
include applications by the same person for different
documents, nor is the Article to be interpreted so as to
bring all
a very large number of
documents within its scope. It must be recalled, however,
and
that
interpretation of Community law is the Court of Justice.

the meaning

applications

authority

highest

the

for

on

2.

subject-matters of

In refusing access to (cid:145)Schoolchildren/5143(cid:146) and (cid:145)CIREA/1452(cid:146)
under Article 4(2) of Decision 93/731/EC, the Council had
referred to a broad consideration according to which
disclosure of the documents would hamper discussions on
the
these documents. This broad
reasoning did not enable the Ombudsman to ascertain
whether the Council had correctly applied Article 4(2). The
the Council had
Ombudsman therefore considered that
failed to comply with the requirement
to provide the
complainant with the particular reasons which led it to
consider that disclosure would hamper its proceedings.

In March 1996, Greenpeace Espaæa and the association
Cordinadora de Itoiz made a complaint to the Ombudsman
against the Commission. In later correspondence, Mr B. was
In the
designated the representative of
complaint it was put forward that the Commission had failed
the Spanish authorities’ decision to build a
to ensure that
Itoiz, Navarre, was in conformity with
water reservoir at
Directive
The
complaint concerned both the Commission’s dealings with a
complaint Mr B. had made to the Commission about
the
matter, and the Commission’s assessment of the complaint.

85/337/EEC and Directive

the complainants.

79/409/EEC.

In 1990 the Spanish Minister for Public Works approved the
construction of a water reservoir at Itoiz, Navarre. It appeared
that the project was very large, as 11 500 000 m2 would be
inundated entailing a water storage capacity of 418 hm3.

The complainants considered that, in the procedures which led
to approval of the construction plan, the Spanish authorities
had not complied with Council Directive 85/337/EEC of 27
June 1985 on the assessment of the effects of certain public
and private projects on the environment (1). Furthermore, the
associations considered that
infringed Council
Directive 79/409/EEC of 2 April 1979 on the protection of
wild birds (2).

the project

In relation to the first Directive, the complainants considered
a proper
that
environmental assessment. In relation to the second Directive,

the Spanish authorities had not made

(1) OJ L 175, 5.7.1985, p. 40.
(2) OJ L 103, 25.4.1979, p. 1.

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18.10.1999

put

associations

the
following: Directive
79/409/EEC aims at protecting wild birds and Article 4
provides that Member States shall establish special protection
areas. Article 4(4) provides:

forward

the

(cid:145)In respect of the protection areas referred to in paragraphs 1 and
2 above, Member States shall take appropriate steps to avoid
pollution or deterioration of habitats or any disturbances affecting
the birds, in so far as these would be significant having regard to
this Article. Outside these protection areas,
the objectives of
Member States shall also strive to avoid pollution or deterioration
of habitats(cid:146).

the Spanish
The complaining associations considered that
authorities had violated this provision as
it has been
interpreted in the case-law of the Court of Justice, in particular
the Court’s judgment of 28 February 1991 in Case C-57/89,
Commission v Germany (1). In that judgment the Court ruled
on the possibility of reducing a special protection area under
Article 4(4) of the Directive. In the words of the Court:

(cid:145)[The] interpretation of [Article 4(4) of the Directive] is borne
out, moreover, by the ninth recital
in the preamble, which
underlines the special importance which the Directive attaches to
special conservation measures concerning the habitats of the birds
survival and
to ensure
listed in Annex I
reproduction in their area of distribution.
the
power to reduce the extent of a special protection area can be
justified only on exceptional grounds.

follows that

their
It

in order

to the general

interest which is
Those grounds must correspond to a general
superior
represented by the ecological
objective of the Directive. In that context the interests referred to
in Article 2 of the Directive, namely economic and recreational
requirements, do not enter into consideration.(cid:146)

interest

the reservoir would reduce
According to the associations,
special protection areas and the Spanish authorities would
build the reservoir only for economic reasons. Thus,
they
considered the construction of the reservoir to be contrary to
the case-law of the Court.

the associations,

this background,

Against
together with a
number of municipalities affected by the construction of the
reservoir, lodged a complaint with the European Commission,
whose duty it is, under Article 155 of the EC Treaty, to ensure
compliance with Community law. The complainants produced
considerable documentation to the Commission in support of
their view.

By letter of 21 December 1994, the Commission informed the
complainants about its decision on the complaint. The letter
reads:

(1) [1991] ECR I-883 (the

the
Leybucht
complainants also referred in particular to the judgment of 2
August 1993 in Case C-355/90, Commission v Spain, [1993] ECR
I-4221 (the Santoæa case).

Subsequently,

case).

(cid:145)Dear Sirs,

Hereby I inform you that the Commission decided in its meeting
of 30 November 1994 to close the complaint
that you have
made against the project of a reservoir in Itoiz. The complaint
was registered in the official complaint register of the Commission
under number P/4758/92.

enclose

the Spanish version of

I
the
Commission has deemed necessary to publish, explaining the
decision to close the case.

release that

the press

I shall observe that after considering the documentation provided
by you as well as by the competent authorities, the Commission’s
services could not establish an infringement of environmental
Community law, as it could not be proved, on the base of the
the project would have a significant
existing knowledge that
impact on the
in the meaning of Directive
92/43/EEC on the conservation of natural habitats and of wild
fauna and flora.

environment

In this situation, the Commission could only decide to close the
case.

I thank you for the interest that you and the bodies you represent,
the Navarre municipalities of Valle de L(cid:243)nguida, Aoiz, Valle de
Artze, Oroz-Beztelu, the Junta General del Valle de Aezcoa and
the Coordinadora de Itoiz, have shown in the conservation and
protection of the environment.

Yours faithfully, (cid:133)(cid:146).

The press
concering the Commission’s reasoning for closing the case:

release referred to above stated the following

(cid:145)The Commission has just discontinued a procedure for looking at
a possible infringement of
legislation for the wild birds in the
Navarre region of Spain (cid:133)

The Commission intervened following a complaint asserting that
the project would affect two areas, namely Sierra de Artxuba y
Zariquieta and Montes de Areta, which were initially protected
under Council Directive 79/409/EEC on the conservation of wild
birds. For the most part, the Commission looked at the complaint
on the basis of Council Directive 92/43/EEC on the conservation
of natural habitats and of wild fauna and flora, which with effect
from 5 June 1994 replaced the initial provisions of the 1979
Directive.

The Commission has investigated this matter
in a spirit of
dialogue and partnership with both the Spanish authorities on
the one hand and the complainants and ecology groups on the
the Commission looked at several
other. The departments of
studies concerning the impact of the project, and visited the areas
affected. All
interested parties were given an opportunity to
express their views at a hearing in Madrid on 25 October 1994.

effects of

investigation enabled the

The
the dam on the
environment to be ascertained and it to be established that these
effects are not of significance within the meaning of the 1992
Directive. Given that there is no evidence of any infringement of
Community law, the Commission has closed the matter(cid:146).

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Official Journal of the European Communities

C 300/107

as

In

this

decision

particular,

concerned Directives

Taking into account the efforts made and the considerable
documentation provided to the Commission, the associations
found
they
unsatisfactory.
considered that the Commission had failed to address their
grievances
and
79/409/EEC and that the Commission’s referral to Directive
92/43/EEC was faulty, as this Directive had not entered into
force at the time of the project. Against this background, the
complainants lodged the complaint with the Ombudsman.
Attached to the complaint was considerable documentation,
among which reports established by the Spanish Society of
Ornithologists which concluded that the Itoiz project would
seriously affect the bird life in the area concerned.

85/337/EEC

The inquiry

The Commission’s opinion

requested

information

As concerned the Commission’s dealing with the complaint,
the Commission stated in summary the
following. The
complaint was lodged in July 1992 and an acknowledgment of
receipt was sent in September 1992. At the same time, the
from the
Commission
further
the Commission
complainants. On 26 November 1992,
In the
requested information from the Spanish authorities.
absence of an answer
the
Commission sent a reminder on 4 February 1993. On 14 May
1993 the Spanish authorities answered the request. The case
was thereafter discussed in depth at a meeting held in Madrid
on 3 March 1994 between representatives
from the
Commission and the Spanish authorities. Following those
discussions, complementary information was
to the
Commission by the Spanish authorities on 21 April 1994.

from the Spanish authorities,

sent

The case was discussed at political level in Luxembourg on 8
June 1994 between Commissioner Mr Paleokrassas, Spanish
Minister Mr Borrell, Spanish Secretary of State Mrs Narbona
the Government of Navarre Mr Alli.
and the President of
During this meeting, the Spanish authorities stressed the public
interest of the project and offered compensation under Article
6(4) of Directive 92/43/EEC on the conservation of natural
habitats and wild fauna and flora.

the visit,

An on-site visit to Itoiz by representatives of the services of
the
the Commission took place on 23 June 1994. At
conclusion of
the Commission representatives
requested information and documents from Spanish local and
central authorities; specifically, they requested justification of
the overriding public interest of
the project, analyses of
alternative sites and locations considered before the decision to
build the Itoiz reservoir, information on the irrigation projects,
a formal promise that these projects would be subject to a full
impact assessment procedure, and a debate open to all relevant
interested parties where the compensation areas would be
discussed.

the rest of

submission of

In July 1994, the Spanish authorities presented a first set of
documents concerning the hydrology of Navarre and a
timetable for
the information
requested. On 25 July 1994, Commissioner Mr Paleokrassas
asked Minister Mr Borrell
to postpone the execution of
permanent works at Itoiz until the matter was settled. This
request was accepted by the Minister by letter of 3 August
1994, and this standstill situation continued until the file was
closed on 30 November 1994. On 21 September 1994 the
Spanish authorities
set of documents
concerning the overriding public interest of the project, the
alternatives examined and the effect of the project on wild
birds. On 4 October 1994 the Spanish authorities submitted a
document on the
compensation offered under Directive
92/43/EEC.

submitted a

full

relevant

interested parties were

the Commission’s initiative,

On 25 October 1994, at
the
Spanish authorities organised a hearing on the Itoiz project in
Madrid. All
allowed to
participate and actively defend their reasons in favour or
against the project. TV, press and other media covered the
event. The complaining association (cid:145)Coordinadora de Itoiz(cid:146) and
its representatives were also present and participated in the
debate. After
services
established a final report.

the Commission’s

hearing,

the

the

concerned

As
an
complainants’
infringement of Directive 85/337/EEC, the Commission stated
that an environmental impact assessment had been carried out
by the Spanish authorities.

allegation

about

As concerned the allegation related to Directive 79/409/EEC,
the Commission stated that it had examined the complaint
from the point of view of Article 4(4) of
the Directive.
However, the obligations imposed on Member States by that
provision have been replaced since 5 June 1994 by the
provisions of Directive 92/43/EEC. Article 6(2) of Directive
92/43/EEC provides that Member States shall take appropriate
steps
the
deterioration of natural habitats and the habitats of species as
well as disturbances of species for which the areas have been
designated, in so far as such disturbances could be significant.

conservation,

in special

to avoid,

areas of

Article 6(3) states that there shall be an assessment of any
project which is not directly linked with or necessary for the
management of the area but likely to have a significant impact
thereon, either individually or in combination with other plans
or projects.

Article 6(4) states that if, in spite of a negative assessment, a
project must nevertheless be carried out for imperative reasons
including those of social and
of overriding public interest,
economic nature, the Member State concerned shall take all
to ensure protection of overall
compensatory measures
coherence of
special areas of
conservation, set up by Article 3 of the Directive and called
(cid:145)Natura 2000(cid:146).

the ecological network of

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On the basis of these provisions, the Commission had found
that the inundation of around 6 % of one of the special areas
concerned by the Itoiz project should be assessed as negative.
However, according to a technical
report made by the
it was hard to determine whether this
Commission services,
(cid:145)significant(cid:146) within the meaning of
could be regarded as
Directive 92/43/EEC. Therefore, the Commission decided not
to open infringement procedures against Spain.

The complainants’ observations

before 3 July 1988, applied to the case, see the judgment of
the Court of Justice in the (cid:145)Grosskrotzenburg(cid:146) case (1).

in 1989 an impact assessment procedure for the
However,
Itoiz project was launched and finished in 1990, after a public
consultation period.
In 1992 the final decision on the
implementation of the project was taken and in 1993, the
preliminary works started. Therefore,
in the Commission’s
view, an impact assessment was made and evidence provided
proved that the impact of the project on the environment,
including protected birds, was adequately assessed.

In their observations, the complainants put forward that the
Commission had still not provided them with an adequate
explanation why the Commission had found that Spain had
properly complied with its obligations under Directives
85/337/EEC and 79/409/EEC. According to the complainants,
the Commission was not entitled to assess the project in the
light of Directive 92/43/EEC, as this Directive was not in force,
when the project was begun. In their view, it was clear that
It was
the project was contrary to Directive 79/409/EEC.
established that there would be a reduction of at least one
this would not occur on
special protection area and that
grounds which (cid:145)correspond to a general
interest which is
superior to the general interest represented by the ecological
ruling in the
objective of
the
abovementioned Leybucht case. To their observations,
complainants
that
Commission services had at a certain moment considered the
project to be contrary to Directive 79/409/EEC.

documents which

see the Court’s

the Directive(cid:146),

annexed

showed

that

the investigation,

the beginning of

As concerns Directive 79/409/EEC, the Commission services
considered, at
the
effects of the Itoiz project on birds and habitats could be
the
significant and therefore contrary to Article 4(4) of
Directive. However,
their conclusions changed when the
services assessed the information received from the Spanish
authorities and the additional information collected during the
hearing held in Madrid. The case was subsequently assessed in
this
the light of Directive 92/43/EEC as the provisions of
Directive replaced Article 4(4) of Directive 79/409/EEC as
from 5 June 1994.

In their observations on the Commission’s second opinion, the
complainants maintained their complaint.

Further inquiries

The Decision

the Commission’s opinion and the
After consideration of
the Ombudsman addressed the
complainants’ observations,
Commission.
the Ombudsman asked the
Commission to provide a more detailed explanation for its
finding that the Spanish authorities had complied with their
obligations under Directives 85/337/EEC and 79/409/EEC.

In his

letter,

In its second opinion, the Commission stated in substance the
following.

As concerned Directive 85/337/EEC, the Spanish Ministry of
Public Works approved the irrigation project called (cid:145)Canal of
Navarre(cid:146)
in December 1961. A first project on the Itoiz
reservoir was approved in 1977. The implementation of the
Itoiz project was approved in 1985. Both projects were
modified at
the results of
later dates to take into account
public consultation and new assessments on the needs for
water. Under the circumstances, it would be difficult to justify
that Directive 85/337/EEC, which had to be implemented

1. The

complaint

the
the
Commission’s dealing with the complainants’ original
complaint to the Commission has been adequate.

question whether

raises

2. As concerns the Commission’s examination of the original
complaint, there appears, on the basis of the Commission’s
the
account
the
and
documentation forwarded by
complainants,
to be no elements to the effect that the
instruction has been faulty.

3. As concerns the reasoning, the Commission has given for
its conclusions,
it appears that one principal point of
remains between the Commission and the
dispute
complainants. That is whether the Commission has given
adequate
complainants’
grievance that the Itoiz project was contrary to Directive
79/409/EEC and that
infringement could not be
remedied through Directive 92/43/EEC which was not in
force at the relevant moment.

reasoning in relation to the

this

(1) Judgment of 11 August 1995 in Case C-431/92 [1995] ECR

I-2189.

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C 300/109

4. Principles of

that
reasoning towards
takes.

the
administration require
good
the
adequate
administration gives
it
In reply to the
citizens
the decisions
for
the European Ombudsman
own-initiative inquiry that
administrative
in 1997 of
made
concerning
for
procedures
Member States’
the
Commission undertook to provide complainants with
statements
no
of
infringement had occurred (1).

dealing with complaints
infringement of Community law,

the Commission’s

reason when

concluding

that

5.

In this case it appears
the complainants have
that
persistently put forward that the Itoiz project was contrary
to Directive 79/409/EEC and that this infringement could
not be remedied through Directive 92/43/EEC which was
not in force at the relevant moment. It also appears that
the Commission failed to address this grievance in its
original decision, which was accordingly insufficient in its
reasoning.
the
Commission’s undertaking in Case 303/97/PD, as referred
to above. However,
the Commission has also failed
properly to address the grievance in its opinions on the
present complaint; thus, it appears that the Commission is
unable to give adequate reasons, and this establishes an
instance of maladministration.

decision was

before

taken

That

Note: Following the Ombudsman’s decision, it was reported in the
Spanish press that the Commission decided to reopen its investigation
of the Itoiz dam.

DISPUTE OVER A RESEARCH CONTRACT

on
Decision
European Commission

complaint 768/26.7.96/CP/UK/IJH against

the

The complaint

In July 1996, Mr P. complained to the Ombudsman about a
research contract between his company LW Limited (LWL),
two partner companies (one Portuguese, the other Greek) and
the Commission. The complaint was that DG VI of
the
Commission:

(i)

deliberately set out to destroy the project by spreading
false information about it;

Conclusion

(ii) wrongly withheld the final payment due under

the

contract;

On the basis of the European Ombudsman’s inquiries into this
complaint, it appears necessary to make the following critical
remark.

(iii) used unfair accounting treatment of costs to reduce the

amount of the final payment due.

Principles of good administration require the Commission to
give adequate reasons for the decisions it takes towards the
citizens.
In this case it appears that the complainants have
persistently put forward that the Itoiz project was contrary to
Directive 79/409/EEC and that this infringement could not be
remedied through Directive 92/43/EEC which was not in force
at the relevant moment. It also appears that the Commission
failed to address this grievance in its original decision, which
was accordingly insufficient in its reasoning. That decision was
taken
provide
complainants with statements of reasons when concluding that
no infringement had occurred. However, the Commission has
also failed properly to address the grievance in its opinions on
the present complaint; thus, it appears that the Commission is
unable to give adequate reasons, and this establishes an
instance of maladministration.

the Commission

undertook

before

to

Given that this aspect of the case concerns procedures relating
to specific events in the past, it is not appropriate to pursue a
friendly settlement of the matter. The Ombudsman therefore
closed the case.

(1) Case 303/97/PD, reported in the Annual report 1997, Section 3.7.

The inquiry

The Commission’s opinion

In its
The complaint was forwarded to the Commission.
opinion, the Commission stated that, under the contract, the
Commission was to pay half of the eligible expenditure, up to
a maximum of ECU 1 050 000. LWL was responsible for the
submission of all documentation to the Commission on behalf
of all contractors. The opinion continued:

Any final balance due could only be paid within two months of
the date of approval of the consolidated cost statement and the
last
technical report, documentation and any other deliverable
required by the contract (Article 21(2)(c) of Annex II).

The contract should therefore remain in force until submission of
the information required by the Commission in accordance with
the contract (Article 13 of Annex II), or the last payment by the
Commission, whichever is the later date. During this period, as
the contract, the
well as during the two years after expiry of

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Official Journal of the European Communities

18.10.1999

Commission is entitled for audit purposes to have access to all
relevant book-keeping material and where necessary to require the
submission of such documentary evidence (Article 39 of Annex
II).

(vii)

set out

the terms of Article 6(1)(c) and (5) of

the (cid:145)General
Under
conditions(cid:146)
the
coordinating partner can then consider itself discharged from its
obligations if the Commission has not made any comments on
the last draft reports within two months of receiving them.

in Annex II of

contract (cid:133),

the

However, Article 6 of Annex II to the contract does not oblige
the Commission to make payments within a certain deadline.
Article 6 comes in Part A of Annex II, which concerns only the
implementation of
contractors’
the work and applies
obligations in respect of the technical performance of the work. In
this connection the Commission staff concluded that they had no
reason to question the conformity of
the work done with the
objectives of the project.

to the

The Commission’s opinion also included,
following points:

in summary,

the

(x)

(i)

Four payments were made to LWL, which was instructed
to pass on the correct amounts to the other partners.

(ii) On the basis of the statements of eligible expenditure
submitted there remains a balance of ECU 47 967 to be
paid, of which 14 370 is owing to LWL.

(iii) LWL informed the Commission on 17 August 1995 that,
in May 1994, the Tenerife authorities had decided that
the project structure was illegal.

(iv) The Portuguese partner informed the Commission on 31
August 1995 that it had not received from LWL the sum
of ECU 16 088 in respect of the second year’s work. The
of
Portuguese
scientific opinion with LWL as well
technical
alterations to the project which they considered major.

also mentioned

differences

partner

as

(v)

The Commission organised a meeting on 27 November
1995 with all three partners, which confirmed that LWL
was to continue in its role as scientific coordinator of the
project.

In November 1995, LWL sent
to the Commission
financial reports and statements of expenditure for the
third year of
the project and for the whole project
period. After the Commission had made several requests
for additional
its
consolidated expenditure statements was sent in mid-May
1996. However, by that date the consolidated reports of
the Portuguese and Greek partners had still not been sent
to the Commission.

information, a corrected version of

the project

(viii) In view of points (iii) and (iv), the Commission decided
that
should henceforth be considered a
(cid:145)doubtful(cid:146) project which warranted closer scrutiny. The
Commission therefore took a prudent stance and decided
it was not appropriate to make a further payment.

(ix) An on-the-spot

audit

the
control
headquarters of LWL on 5 July 1996, at which LWL was
unable to produce adequate documents,
in particular
wageslips proving expenditure on personnel.

took place

at

The Commission invited the Portuguese partner and LWL
to a meeting on 11 July 1996 to clarify the situation.
the
The Portuguese partner was unable to attend. At
meeting, the Commission repeatedly requested LWL to
supply the missing documentary financial evidence. LWL,
however, took the position that Article 6(1c) and (5) of
it was discharged from its
the contract meant
the
obligations under
Commission should make the final payment.

the contract and insisted that

that

(xi) The Commission’s anti-fraud unit UCLAF had begun an
investigation because LWL had not been able to supply
bookkeeping evidence to support its expenditure claims.

The complainant’s observations

The observations included, in summary, the following points:

(i)

The periodic progress reports and final report required
by the contract were submitted by LWL in due time. The
Commission never submitted observations on the reports
or notified the need for a longer period to submit
observations. Therefore, in accordance with Article 6(1b)
and (1c) of the contract the Commission is deemed to
have approved the reports and LWL is discharged from
its obligations under the contract
in accordance with
Article 6(5).

(vi) After commissioning an independent expert report and
receiving the
the
Commission accepted the scientific reports that had been
submitted for the project.

expert’s opinion in July 1996,

(ii)

The third year and consolidated financial reports were
submitted
and
December 1995 respectively. A faxed letter from the

to the Commission in November

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Commission dated 18 April 1996 requested that a
specific correction be made to the consolidated cost
statement and stated that the Commission had examined
and approved the financial report and that payment
would follow as soon as the scientific reports were
approved.

least monthly by the project manager.
It was not
practical or appropriate for such records to be kept for a
small team working in two, and sometimes three or four
time. Working diaries were
countries
produced which contained daily records of
individual
attendance and other details.

any one

at

(iii) The Commission was in breach of contract by failing to
make the final payment due under Article 21(2)(c) of the
contract within two months of the deemed approval.

(x)

The meeting on 11 July 1996 was attended by eight
Commission officials and Mr P. Questions raised about
the Commission’s handling of
the contract were not
answered.

(iv) The first time the Commission sought clarification on the
progress reports was on 24 May 1996. This clarification
was supplied on 25 May 1996 but not acknowledged by
the Commission.

Further inquiries

(v)

to transfer costs between categories.

The Commission refused, without explanation or advice,
to allow LWL to make use of possibilities provided by
In
the contract
particular the Commission refused to accept a proposal
from LWL that costs originally estimated under
the
heading (cid:145)durable equipment(cid:146) be treated as (cid:145)consumable
equipment(cid:146) to reflect their true nature as costs written off
during the course of the project.

(vi) By the end of the second year of the project, it was clear
that the Portuguese partner had no intention of carrying
out their responsibilities. LWL informed the Commission
of this orally and was orally advised that its primary
in accordance
responsibility was (cid:145)to deliver the results(cid:146),
for
with Article 2 of
contractors to (cid:145)discharge the responsibilities of defaulting
contractors(cid:146).

the contract which provides

(vii) At the meeting on 27 November 1995 (see Commission
opinion point (v)) it was agreed that each partner would
henceforth send reports directly to the Commission and
that remaining payments would be made to each partner
directly by the Commission without passing through
LWL as intermediary.

(viii) The Commission description of the audit on 5 July 1996
grossly misrepresented the event. The auditors identified
three minor items which they considered ineligible. In
two cases, LWL considered that the items were eligible
and sought clarification from the Commission on 8 July
1996. No reply was received. The third item was an
invoice for guaranteed next-day delivery of the signed
contract
to the Commission in Brussels which was
ineligible because the invoice was dated one day before
the beginning of the contract.

After examination of the file, the Ombudsman considered that
it was necessary to conduct further inquiries. He wrote to the
Commission asking to be informed of:

1.

2.

(a) the reasons why the Commission refused to accept the
proposals made by LWL that certain costs should be
treated as allowable under the contract and (b) whether
these reasons were communicated to LWL;

the legal basis for the Commission’s position that no
further progress could be made on financial aspects of the
dossier until specified information was supplied by the
complainant and the other contractors. In this connection
the Ombudsman referred to the Commission’s letter to the
complainant dated 18 April 1996;

3. whether inquiries by UCLAF had been completed and, if

so, their outcome.

The Commission’s reply

In reply to question 1(a) the Commission referred to its request
for further documentation from LWL. As regards question 1(b)
it stated that the reasons were communicated to Mr P. both
during the audit and at the meeting held in Brussels on 11 July
1996.

the Commission stated that

In reply to question 2,
the
consolidated cost statement of the Portuguese partner, which
the
was the last document required by Article 21(2)(c) of
contract, was received on 25 November 1996. On the basis of
Article 21(2)(c) alone, payment should have been made at the
latest in January 1997. However, this was not the case because
there was a request of the Commission for further information,
made in July 1996, which was still outstanding.

(ix) The auditors also asked to see daily time sheets for
personnel working on the project signed and certified at

Furthermore,
to show
evidence of the amounts he alleged to have transferred to his

the Commission had asked Mr P.

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partners but he had failed to do so. The Commission also
referred to the (cid:145)prudent stance(cid:146) mentioned in point (viii) of its
opinion.

In reply to question 3,
UCLAF’s inquiries were continuing.

the Commission stated that

the

The complainant’s complementary observations

In summary, Mr P. noted that the Commission had failed to
answer question 1(a) and he asserted that its answer to 1(b)
was untrue. As regards the answer to question 2, Mr P.
claimed that all documents were delivered separately on the
instructions of the Commission following the meeting of 27
November 1995. Mr P. also enclosed copies of bank transfers
to the Portuguese partner which he had already copied to the
Commission on 24 May 1996.

As regards UCLAF, Mr P. referred to correspondence which he
had forwarded to the Ombudsman in July 1997. UCLAF had
requested him to supply copies of all the project’s financial
and administrative records. He had informed UCLAF that he
considered the requirement to copy thousands of documents
to be unreasonable, since LWL had no paid staff to undertake
the work, and proposed instead a further on-the-spot audit in
accordance with Article 39 of the contract.

the documents;

In relation to the

In its reply of 12 November 1997, the Commission informed
the Ombudsman that UCLAF was no longer demanding that
LWL supply copies of
that an on-the-spot
inspection was to take place and that Mr P. had been informed
accordingly.
the
Commission’s reply stated that, for each periodic payment, the
Commission had sent to LWL a letter including a financial
table presenting both expenditure
claimed and eligible
expenditure, with the explanation of any difference. The
Commission also stated that the legal basis for not having paid
the Commission had not yet
the final balance was
approved the final cost statement of LWL.

contractual dispute,

that

The Commission’s letter was forwarded to the complainant,
who contested the points made by the Commission in relation
to the contractual dispute and insisted that the Commission
had set out
to destroy the project by informing other
interested parties that it was a technical and economic failure.

It therefore appeared that a friendly solution to the complaint
could not be achieved.

The Decision

1.

Scope of the Ombudsman’s inquiries and of the
decision

The Ombudsman’s attempt to achieve a friendly solution

1.1.

T h e U C L A F i n v e s t i g a t i o n

On 8 September 1997,
the Ombudsman wrote to the
Commission with a view to seeking a friendly solution of the
complaint.

1.1.1.

that, on the basis of

The Ombudsman pointed out
the
evidence in the file, the complainant did not appear to have
received a reply to his claim that UCLAF’s requirement that he
supply copies of
the records was unreasonable and his
proposal
that UCLAF perform an on-the-spot audit as an
alternative. The Ombudsman suggested to the Commission
that it either modify the requirement, or give reasons why it
was necessary to insist on the copying of all documentation.

concerning
Furthermore,

The Ombudsman’s letter also drew attention to the fact that
the Commission had not supplied to the Ombudsman the
the
requested
information
for
reasons
the Ombudsman’s
non-eligibility of
costs.
inquiries had not yet convinced him that
the Commission
could provide a coherent account of why it believed that its
view of the contractual position was justified. He suggested
that, depending on the outcome of UCLAF’s inquiries,
the
Commission might consider revising its stance in relation to
the amount and payment of the final balance due under the
contract.

the Ombudsman pointed out

In his attempt to achieve a friendly solution to the
to the
complaint,
Commission that the complainant did not appear to
have received a reply to his claim that UCLAF’s
requirement that he supply copies of the records was
unreasonable and his proposal that UCLAF perform an
on-the-spot audit as an alternative.

1.1.2.

In its reply, the Commission informed the Ombudsman
that UCLAF was no longer insisting that LWL supply
copies of
an on-the-spot
inspection. The Commission therefore appeared to have
dealt satisfactorily with the specific issue raised by the
Ombudsman.

the documents before

1.2.

T h e c o n t r a c t u a l c o n t e x t o f t h e c o m p l a i n t

1.2.1. According to Article 11(1) of the contract from which
the complaint arose, the contract is governed by the
law of England and Wales.

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1.2.2. Many ombudsmen at national

level

in the Member
States do not deal with contractual disputes, either
because of the general characteristics of contracts under
national
law, or because the law establishing the
ombudsman’s mandate expressly excludes contractual
matters.

2.1.3. On the basis of

inquiries

the Ombudsman’s

there
to the
appears to be no evidence that, subsequent
independent expert’s report which removed its doubts
concerning
the project,
Commission officials have made statements inconsistent
with the report.

aspects of

scientific

the

1.2.3. As stated in the Annual Report for 1995, part of the
mission of the European Ombudsman is to help relieve
the burdens of
litigation, by promoting friendly
solutions and by making recommendations that avoid
the need for proceedings
in courts. The European
therefore, deals with complaints of
Ombudsman,
from contractual
maladministration
relationships.

arise

that

1.2.4. He does not, however, seek to determine whether there
has been a breach of contract by either party. This
question could be dealt with effectively only by a court
jurisdiction, which would have the
of competent
the parties
possibility to hear
concerning the relevant national
law and to evaluate
conflicting evidence on any disputed issues of fact.

arguments of

the

1.2.5. However, as a matter of good administration, a public
authority engaged in a contractual dispute with a
private party should always be able to provide the
Ombudsman with a coherent account of the legal basis
for its actions and why it believes that its view of the
contractual position is justified.

2.1.4. The

Ombudsman,

no
maladministration by the Commission in relation to
this aspect of the complaint.

therefore,

found

2.2. W i t h h o l d i n g

o f

t h e

f i n a l p a y m e n t

d u e

u n d e r t h e c o n t r a c t

2.2.1. LWL consistently made clear to the Commission its
view that it is discharged from its obligations under the
contract and that the Commission should have made
the final payment in accordance with Article 21(2)(c) of
the contract.

2.2.2.

for further information,

In its opinion and its reply to the Ombudsman’s
request
the Commission did
not clearly express its view of the contractual position.
In its response to the Ombudsman’s attempt to achieve
a friendly solution the Commission explained that the
legal basis for not having paid the final balance was
that the Commission had not yet approved the final
cost statement of LWL. As its reason for withholding
approval, the Commission stated that the complainant
had not produced the financial
information which it
requested on July 1996.

2.

The substantive issues

2.1.

T h e a l l e g a t i o n t h a t D G V I d e l i b e r a t e l y s e t
o u t t o d e s t r o y t h e p r o j e c t

2.2.3.

2.1.1. The complainant alleged that DG VI deliberately set out
to destroy the project by spreading false information
it. Although this allegation was not expressly
about
contradicted by the Commission,
its opinion and in
particular its explanation of why it classified the project
as (cid:145)doubtful(cid:146) denied the allegation in substance.

In view of its present stance, it was misleading for the
Commission to send a letter to the complainant dated
18 April 1996 requesting that a specific correction be
made to the consolidated cost statement and stating
that payment would follow as soon as the scientific
could be
reports were
understood to imply approval of the consolidated cost
statement,
to the specific correction being
made.

approved. Such a

subject

letter

2.1.2. According

to

opinion,

after
the Commission’s
considering information supplied by the Portuguese
partner, it sought the opinion of an independent expert.
After receiving the expert’s opinion in July 1996, the
Commission felt able to accept the scientific reports
which had been submitted to it under the contract. The
Commission also stated that
the Commission’s staff
concluded that
they had no reason to question the
conformity of the work done with the objectives of the
project.

2.3.

A c c o u n t i n g t r e a t m e n t o f c o s t s
t h e f i n a l p a y m e n t d u e

t o r e d u c e

2.3.1. The complainant claimed that

the Commission had
refused, without explanation or advice, to allow transfer
of costs between categories in accordance with the
contract.
In the complainant’s observations on the
Commission’s opinion, it was alleged, in particular, that
the Commission had refused to accept a proposal that
costs originally estimated under the heading (cid:145)durable
equipment(cid:146) be treated as (cid:145)consumable equipment(cid:146).

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2.3.2. According

reply

request

for non eligibility of

the Commission’s
further
for

to
the
to
the
information,
Ombudsman’s
reasons
certain costs were
communicated to the complainant during the audit and
at the meeting held in Brussels on 11 July 1996. The
claim. His
complainant
observations on the Commission’s opinion contained an
account of the audit and he annexed his minutes of the
meeting of 11 July 1996. Both these documents were
forwarded to the Commission, which supplied no
evidence in rebuttal.

specifically

denied

this

2.3.3.

In its

response,

to achieve a friendly solution,
that

In the attempt
the
the
Ombudsman drew attention to the fact
Commission had not supplied to the Ombudsman the
information he had requested concerning the reasons
for non-eligibility of
the
costs.
Commission stated that, for each periodic payment, the
Commission sent to LWL a letter including a financial
table presenting both expenditure claimed and eligible
expenditure, with the explanation of any difference. The
Commission annexed to its response copies of letters to
from the Commission dated 4 July
the complainant
1994, 14 March 1995 and 8 August 1995. However,
the financial tables to which the letters referred were
not copied to the Ombudsman.

2.3.4. The

effect of

refusal of
costs

the Commission’s
request
transfer
to
to reduce the proportion of

the
between
complainant’s
categories was
total
expenditure that was eligible and thereby reduce the
Commission’s contribution to below 50 % of the total.
In these circumstances, the Commission should have
given the complainant reasons for the refusal. The
reasoning should also have been provided to the
Ombudsman on request. Despite a repeated request, the
Commission did not provide the reasoning to the
Ombudsman. The Ombudsman therefore concluded
that the Commission failed to supply the complainant
that costs
with reasons
originally
(cid:145)durable
equipment(cid:146) be treated as (cid:145)consumable equipment(cid:146).

refusing his proposal

for
estimated

heading

under

the

consolidated cost

April 1996 requesting that a specific correction be made
statement and stating that
to the
payment would follow as soon as the scientific reports
were approved. Such a letter could be understood to imply
approval of the consolidated cost statement, subject to the
specific correction being made.

2. The effect of the Commission’s refusal of the complainant’s
request to transfer costs between categories was to reduce
the proportion of total expenditure that was eligible and
thereby reduce the Commission’s contribution to below
50 % of the total. In these circumstances, the Commission
should have given the complainant reasons for the refusal.
The reasoning should also have been provided to the
Ombudsman on request. Despite a repeated request, the
Commission did not provide
reasoning to the
Ombudsman. The Ombudsman therefore concluded that
the Commission failed to supply the complainant with
reasons for
that costs originally
estimated under the heading (cid:145)durable equipment(cid:146) be treated
as (cid:145)consumable equipment(cid:146).

refusing his proposal

the

3. The substantive issues in dispute between the complainant
and the Commission concern their contractual obligations.
The Ombudsman cannot determine whether there has
It was not
been a breach of contract by either party.
therefore appropriate for the Ombudsman to make draft
recommendations in this case, despite the fact that efforts
to achieve a friendly solution were unsuccessful. The
in question is
Ombudsman noted that
governed by the law of England and Wales and that the
Court of
Justice has sole jurisdiction in respect of any
dispute concerning the contract (Article 11(1); Annex II,
Article 12). It was therefore open to either of the parties to
the Community
in dispute before
bring the
judicature.

the contract

issues

The Ombudsman therefore closed the case.

Conclusion

COMPETITION LAW: ALLEGED FAILURE TO TAKE ACTION AND
TO REPLY TO CORRESPONDENCE

On the basis of the Ombudsman’s inquiries, there appeared to
be no evidence that, subsequent to the independent expert’s
report which removed its doubts concerning the scientific
aspects of
the project, Commission officials had made
statements inconsistent with the report.

It appeared necessary however, to make the following critical
remarks.

1.

In view of its present stance,
it was misleading for the
Commission to send a letter to the complainant dated 18

Decision on complaint 774/29.7.96/ELR/UK/IJH/OV against
European Commission

the

The complaint

Mr R. complained in July 1996 to the European Ombudsman
of alleged failure by the Commission (Directorate-General IV)
to deal properly with his complaint alleging restriction of
competition by sole agency agreements of German and
Austrian model railway manufacturers.

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Official Journal of the European Communities

C 300/115

The complainant wrote on behalf of a retailer in model
railways (toys) established in North Wales and specialising in
the supply of manufactured goods originating from sources in
Germany, Austria, France and Italy. On 3 August 1994 the
complainant wrote to Mr Joe Wilson MEP who forwarded the
complaint to the Commission (DG IV) alleging restriction of
competition
railway
manufacturers through sole agency agreements. He complained
the German and Austrian manufacturers
in particular that
appoint a sole importer/distributor
to supply the United
therefore trade prices to United
Kingdom market and that
Kingdom dealers are considerably higher than those enjoyed
by, for example, German counterparts.

and Austrian model

by German

the delay,

the contents of

that on the basis of

competition law. Not
reply,

The Commission replied on 12 January 1995, with an apology
for
the
complainant’s letter, it did not appear necessary to take any
satisfied with the
action under
Commission’s
the complainant wrote again on 23
January 1995 and received a similar reply on 1 February
1995. He wrote again on 28 April and 31 October 1995 and
got an answer on 9 November 1995.
the
Commission asked the complainant to provide more detailed
information about the alleged violation of competition rules,
and in particular indications on the companies involved in the
alleged improper
complainant
three other letters on 21 November 1995, 29
finally sent
March and 23 May 1996, but received no reply. In his letter of
21 November 1995 and further to the Commission’s request
for more detailed information, the complainant included a list
with names
of German and Austrian
manufacturers practising sole agency agreements.

competition activities. The

In its replies,

addresses

and

Given that the complainant received no reply to those last
letters, he complained in July 1996 to the Ombudsman that
the Commission:

1.

failed to take action further to his complaint alleging
restriction of competition by German and Austrian model
railway manufacturers;

As regards the alleged failure to reply to the letters of the
complainant, the Commission observed that it had recently
replied to the letter of 23 May 1996.
It annexed to its
observations a copy of this reply dated 28 November 1996
and of the answer of the complainant.

subject

regards

specific

As
the alleged failure to take action because of
violation of competition rules, the Commission observed that
DG IV only initiates investigations when duly substantiated
complaints on a
involving points of
Community law are lodged. The Commission maintained that
the circumstances which the complainant described did not
indicate that any violation of competition rules had taken
place and did not
involved, but
contained only statements of a general political nature.
However, the Commission added that, should the complainant
submit a formal complaint identifying an infringement of the
competition rules, it would deal with it in accordance with the
procedures established by Regulations No 17 and No 99.

identify the companies

The Commission observed that there were several reasons why
DG IV could not provide further assistance to the complainant.
Given that the complainant had failed to provide details which
might have led to discovering the existence of any restrictive
agreements, the Commission stated that there would be no
infringement of the competition rules, since all suppliers are
fully entitled to employ exclusive distributors,
in the United
Kingdom or elsewhere. The Commission further commented
that, in the absence of detailed information, it could not take a
decision to carry out in situ inspections, and that a systematic
investigation through formal requests for information to all
manufacturers and wholesalers of model
in the
Community was not justified by the economic impact of the
case, which the
small. The
Commission particularly drew the attention to the fact that,
attached to his complaint, the complainant had sent a copy of
the Commission notice of 3 September 1986 on agreements of
minor importance, which showed that he was aware that the
Commission did not normally intervene in such cases. Finally
the Commission observed that, since the case appeared to
concern trade in model railways at retail
level, an effect on
trade between Member States was in any event improbable.

admitted was

complainant

railways

2.

failed to answer his correspondence.

The complainant’s observations

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission in November
1996.
the Commission made the following
comments.

In summary,

investigation of

The complainant rejected the Commission’s statement and
asked for a full
the matters raised in his
complaint, which he declared are facts and not general
observations. He more particularly observed that there exists
no alternative source of supply, that a monopoly is created
and repeated that United Kingdom retailers have to pay
excessive prices as opposed to other countries. He also
commented that he could not furnish proof of restrictive trade
arrangements
of
suppliers/manufacturers to obtain such information.

premises

breaking

without

into

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The Decision

1. Alleged failure to take action further to the complaint

Given that the complainant received no answer from the
Commission by March 1996, he wrote the two other
letters in which he asked for the courtesy of a reply to his
first letter dated 21 November 1995. The Commission
answered that it replied to those letters on 28 November
1996.

the Commission should
1.1. According to the complainant
have taken action further
to his complaint alleging
restriction of competition by the German and Austrian
model
the
Commission observed that
the complainant did not
furnish enough detailed information in order to enable it
to initiate investigations.

railway manufacturers.

summary,

In

1.2. The alleged failure of

the Commission to take action
under competition law has to be considered in the frame
of the administrative procedure which the Commission
follows in order to bring to light infringements of Articles
85 and 86 of
the EC Treaty. This administrative
procedure is regulated by Council Regulation No 17 (1)
which confers on the Commission wide powers to make
investigations and to obtain information.

the competition rules. The Court of

1.3. According to the case-law of the Court of Justice (2), it is
for the Commission itself, and not for a third party, to
decide, for the purposes of an investigation under Article
14 of Regulation No 17, whether particular information
is necessary to enable it to bring to light an infringement
of
Justice has in
particular stated that, even if it already has evidence, or
indeed proof, of the existence of an infringement, the
Commission may take the view that it is necessary to
request further information to enable it to define more
accurately the scope of the infringement, to determine its
duration or to identify the circle of undertakings involved.
The fact that the Commission requested more information
from the
seemed
reasonable and not excessive. Therefore there appeared to
have been no maladministration by
the European
Commission in deciding that it was still unable to take
action on basis of
the information provided by the
complainant.

in the present

complainant

case

to

from complainants

2.2. Principles of good administrative behaviour require that
Commission
letters
administration receive a reply within a reasonable time
limit. This requirement is even more necessary when a
from a complainant contains new information
letter
compared to his previous
in
correspondence asking the Commission to take action
because of violation of competition rules.

example

letters,

the

for

2.3. It

appeared

from the

information given by

the
Commission that the letter of 21 November 1995 was
only answered on 28 November 1996, i.e. one year later.
Even if
the other
the Commission had replied to all
correspondence from the complainant referred to in the
facts of the complaint under point 2, it should also have
answered the letter of 21 November 1995 within a
reasonable time limit.

the

sole

further

request

complainant,

2.4. The necessity of a reply in the present case became
to the
urgent, given that
Commission’s
for more detailed information,
finally provided the Commission with new details in the
form of a list of German and Austrian manufacturers
supposed to practice
agency agreements. This
information which was new with regard to his previous
correspondence and which the complainant reasonably
could have considered as an answer to the Commission’s
request for more details, was an additional argument for
the complainant
to be entitled to receive a reasoned
answer from the Commission within a reasonable time
limit. Therefore, the fact that the Commission replied one
year later to the complainant’s letter of 21 November
1995 which contained new information with regard to
his original
constituted an instance of
maladministration.

complaint,

2. Alleged failure to reply to the letters of the complainant

Conclusion

2.1. The complainant alleged that the Commission failed to
reply to his letters of 21 November 1995, 29 March and
23 May 1996. In his letter of 21 November 1995, the
complainant provided the Commission,
to its
request
for more detailed information, with a list of
manufacturers supposed to use sole agency agreements.

further

(1) Council Regulation No 17 of 6 February 1962: First Regulation
implementing Articles 85 and 86 of the Treaty (OJ English Special
Edition, Series-I (59(cid:150)62), p. 87).

(2) Case 155/79, AM & S v Commission, ECR [1982] 1575; Case

374/87, Orkem v Commission, ECR [1989] 3283.

On the basis of
into this
the Ombudsman’s
complaint, it appeared necessary to make the following critical
remark.

inquiries

The principles of good administrative behaviour require that
letters from complainants to the Commission administration
receive a reply within a reasonable time limit. The fact that the
Commission only replied after one year to the complainant’s
letter of 21 November 1995 which contained new information
with regard to his original complaint constituted therefore an
instance of maladministration.

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Official Journal of the European Communities

C 300/117

this aspect of

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore decided to close the case.

In 1990, the Commission initiated the infringement procedure
under Article 169 against Spain for its failure to follow the
in Council Directives 78/686/EEC (1) and
criteria set out
78/687/EEC (2) for the recognition of dental degrees.

RECOGNITION OF CERTIFICATES OF DENTISTRY FROM
NON-MEMBER COUNTRIES

Decision on complaint 783/01.08.96/LBR/ES/KH(JMA) against
the European Commission

Article 1(4) of Directive 78/687/EEC establishes that (cid:145)nothing
shall prejudice
any facility which may be granted in
accordance with their own rules by Member States in respect
of their own territory to authorise holders of diplomas, [(cid:133)]
which have not been obtained in a Member State to take up
and pursue the activities of dental practitioner(cid:146).

The complaint

complaint

In July 1996, Mr B. complained to the Ombudsman on behalf
of the (cid:145)Colegio de Odont(cid:243)logos y Estomat(cid:243)logos(cid:146) of Vizcaya.
The
the
Commission to ensure that the Spanish authorities correctly
applied Directive 78/686/EEC on mutual
recognition of
certificates of dentistry.

concerned

alleged

failure

the

of

In his complaint Mr B. alleged that Spain was not complying
with the Directive since its authorities were recognising
odontologist degrees obtained in Latin American countries,
which did not meet the requirements set by the Directive.

Having received several complaints concerning the same
situation, the Commission initiated the infringement procedure
under Article 169 of the EC Treaty. A letter of formal notice
was sent to the Spanish authorities in October 1990, followed
by a
reasoned opinion in August 1992. The Spanish
authorities replied to the reasoned opinion in March 1993.

Mr B. had complained to the Commission in 1992. Since then,
he wrote to and visited the services responsible on several
occasions in order to receive information on the development
of the Article 169 proceedings. He had asked the Commission
to speed up the process and to have access to information
concerning the relevant files, in particular to obtain copies of
the exchanges between the Commission and the Spanish
authorities. The Commission, however, rejected his requests to
the proceedings are
see the files on the grounds
confidential.

that

and letters with the

In all
contacts
the
the procedure was following its
Commission insisted that
course and that the Commission’s services were reviewing the
documents sent by the Spanish authorities. The complainant
considered
and
unsatisfactory.

replies were

complainant,

general

those

that

too

However, in doing so, the Member State had been limited by
the basic criteria laid down by both Directives, and which
should be met by any practitioner of specialised dentistry. The
Commission considered that, in order to be recognised in the
Community,
a
by
non-member State must guarantee these minimum criteria.

odontologist

delivered

degree

an

the

In spite of
above obligations, Spain automatically
recognised dental degrees obtained in Latin American countries
and which did not meet the Directive’s minimum criteria. The
recognition of these degrees was based on the provisions of
bilateral
international agreements concluded by Spain before
its accession to the European Communities.

Although the Spanish administration sought to comply with
the provisions of
its decisions were
the above Directives,
reversed on appeal by different administrative courts. As a
result the provisions of the relevant Directives were still not
respected.

in the process of

The Commission also explained that in view of the fact that
renegotiating its bilateral
Spain was
agreements with third countries, it had decided not bring the
matter before the European Court of Justice, in the exercise of
its discretion, as recognised by the case-law of the European
Court of Justice.

infringement

As regards the length of time involved in the development of
this
the
Commission justified it on the basis of its complexity, both
from a legal and a political point of view.

under Article

proceeding

169,

reply to its

receiving the

the
After
Commission asked for further information from the Spanish
authorities in October 1994 and in July 1995. The Spanish
authorities replied to these requests in December 1994 and
October 1995 respectively.

reasoned opinion,

The inquiry

The Commission’s opinion

(1) Council Directive 78/686/EEC of 25 July 1978 concerning the
mutual recognition of diplomas, certificates and other evidence of
the formal qualifications of practitioners of dentistry,
including
the right of
measures
(OJ L 233,
establishment and freedom to provide
24.8.1978, p. 1).

to facilitate the effective exercice of
services

complaint was

The
summary, the Commission’s opinion was as follows.

forwarded to the Commission.

In

(2) Council Directive 78/687/EEC of 25 July 1978 concerning the
regulation or
activities of dental

coordination of provisions
administrative
practitioners (OJ L 233, 24.8.1978, p. 10).

action in respect of

laid down by law,

the

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18.10.1999

the date of

At
the
Commission was still waiting for a reply from the Spanish
authorities to a new request for information.

the opinion (20 December 1996)

As for the alleged failure of transparency of the proceedings
and the refusal to disclose the correspondence between the
Commission and the Spanish Government, the Commission
insisted that the letters and other documents exchanged with a
Member State in the context of Article 169 were of a
confidential nature. On that basis, there was no obligation to
share with or to pass the information on to third parties.

in its handling of
this
The Commission stressed that
followed principles of good
proceeding it had always
administration, and its
services had replied in time and
properly to the letters of the complainant, with whom they
had also had a meeting in Brussels.

The complainant’s observations

In his observations, Mr B. made in summary the following
points.

The Commission’s interpretation of Directives 78/686/EEC and
78/687/EEC was,
in his view, adequate, and he had always
made all possible efforts to guarantee the proper application of
these Directives in Spain.

the Commission’s justification for

the
He did not accept
lengthy period of time taken for the handling of the case. He
considered that since the Commission is a technical body, its
primary task is to ensure the proper application of Community
law by all Member States. Consequently,
the Commission
could not possibly justify the long time elapsed in this action
on the basis of political reasons.

He asked the Ombudsman to make the necessary inquiries to
verify whether all the parties involved in the case acted in
accordance with Community law.

On April 1997 he forwarded to the Ombudsman a copy of a
letter which he had received from the Commission. This letter
informed him of the decision adopted by the Commission on
December 1996 to refer the matter to the Court of Justice,
although it also added that
the case had not yet been
materially lodged. The Commission had adopted this decision
in view of
the unsatisfactory reply given by the Spanish
authorities to the Commission’s reasoned opinion.

Further inquiries

In May 1997, the European Ombudsman wrote again to the
Commission requesting further information in relation to the
complaint. The Ombudsman suggested that the Commission
should provide more clear, precise and transparent information
the negotiations between the
concerning the contents of
Commission and the
and on the
development of the proceedings which had taken place since
1990.

Spanish authorities

In reply, the Commission confirmed its previous opinion and
it was reviewing the new
informed the Ombudsman that
information submitted by the Spanish authorities in June
1997.

In February 1998, the Commission informed the Ombudsman
that it had decided not to bring the matter before the Court of
Justice. In the Commission’ view the Spanish authorities were
tackling the relevant problem in accordance with Community
law. Furthermore, the Spanish Supreme Court had changed its
interpretation of existing national rules, in order to make them
conform to the requirements of Directives 78/686/EEC and
78/687/EEC.

that

The Commission pointed out
the
Ombudsman had received several complaints (531/97/PD and
from citizens who had obtained their dental
535/97/PD)
degrees
in Latin American countries, but who had not
obtained the recognition of their dental degrees by the Spanish
authorities, was proof of the change in the situation.

that

fact

the

intended

The Commission
infringement
proceeding as soon as Spain ceased to be a party to all the
international
to
Community law.

agreements which

contrary

could

close

the

be

to

The Decision

1. Decision of the Commission not to bring the case before

the Court of Justice

1.1. Under Article 155 of the Treaty, the Commission’s duty
as (cid:145)guardian of the Treaty(cid:146) is to ensure that Community
instrument
law is applied.
available to the Commission to compel compliance by
Member States is the procedure set out in Article 169.

In this role, the main legal

1.2. Accordingly, when the Commission considers

that a
Member State has failed to fulfil a Community obligation,
it delivers a reasoned opinion. If the State concerned does
not comply with the opinion, the Commission may bring
the matter before the Court of Justice.

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Justice has repeatedly stated (1),

As the Court of
the
Commission has a discretionary power whether or not to
apply to the Court of Justice for a declaration establishing
the failure of the Member State concerned.

administration and act with due diligence. This implies
that the Commission should actively seek to make the
Member State concerned put an end to the infringement,
and also inform the complainant of its actions.

1.3. In the exercise of discretion a normal practice for most
public administrations is to explain the reasons which
justify the choice of a particular course of action.
Therefore, if the Commission chooses not to pursue an
infringement procedure, there should be some reasoning
supporting this particular option. These reasons should
provide the basis
inquiry by the
Ombudsman in order to ensure that no maladministration
has taken place.

for any potential

2.3. In the process of compelling the Spanish authorities to
comply with Directive 78/686/EEC, formal action by the
Commission was first undertaken in October 1990 with
the dispatching of a letter of formal notice. In December
1996 the institution decided to apply to the Court of
Justice, although it suspended this decision in December
1997, in view of the positive results of its negotiations
with Spain.

1.4. On the basis of the latest information submitted by the
Spanish authorities, the Commission decided not to bring
Justice. This
the matter before the European Court of
decision was prompted by the fact
the Spanish
that
authorities had denounced several international treaties on
recognition of degrees signed with some Latin American
countries, and by the new position taken by the Spanish
Supreme Court.

1.5. In reviewing the reasons given by the Commission to
the
justify its position,
institution had acted within the limits of
legal
authority and therefore no instance of maladministration
had been established.

the Ombudsman found that

its

This process, still being reviewed by the Commission, had
the
taken seven years. During
Commission had indicated it sent a reasoned opinion to
the Spanish authorities
and also
requested additional information on this matter in March
and July 1993, October 1994, July 1995, and April 1996.

in August 1992,

long period,

this

2.4. In its replies to the Ombudsman, the Commission had
claimed that its attitude has been very active in relation to
the complaint during the seven years that have elapsed
since infringement proceedings begun. However, despite a
request from the Ombudsman,
it had failed to provide
clear, precise and transparent information to support this
claim and thereby demonstrate that it had acted with due
diligence throughout this long period of time.

2. Due diligence in ensuring compliance with Community

law

3. Request by the complainant to have access to certain

documents

citizens’

administrative procedures

2.1. In the context of the Ombudsman’s own initiative inquiry
in
into the Commission’s
relation
the
to
Commission committed itself to adopt a decision on a
complaint within a year from its registration. As it was
noted at the time, the observance of this rule appeared to
be an adequate means for ensuring that the complaint is
processed without undue delay.

(303/97/PD),

complaints

However, this general aim could be frustrated if, once a
complaint had resulted in the opening of an infringement
procedure, the latter lingered on for many years with no
satisfactory solution to the problem.

2.2. In ensuring as guardian of the Treaty that Member States
fully comply with Community law,
the Commission
should work in accordance with principles of good

(1) See, most recently Case T-182/97, Order of the Court of First
Instance (Second Chamber) of 16 February 1998. Smanor SA,
Hubert SØgaud and Monique SØgaud v Commission of
the
European Communities [1998] ECT II-0271.

had

3.1. In order to clarify the evolution of the proceedings, the
complainant
occasions
requested
exchanges between the
information concerning the
Commission
The
authorities.
Commission replied to such requests by refusing to
release those letters on the basis of the confidentiality of
the infringement proceedings.

Spanish

several

and

the

on

3.2. The Commission indicated in its replies to this inquiry
that, in its role of guardian of the Treaty, the institution
has
trust with
Member States. This aim could not be achieved but for
the confidential character of
the contacts between the
institution and the Member State concerned.

to ensure an atmosphere of mutual

3.3. Requests

to

for

access

documents

the
Commission are to be dealt with in accordance with
Commission Decision 94/90/ECSC, EC, Euratom, which
gives effect
to the Code of Conduct adopted by the
Council and Commission. Those measures place a legal

held

by

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Official Journal of the European Communities

18.10.1999

obligation on the Commission to give the public the
widest possible access to documents held by it. The
exceptions to the right of access to documents should be
interpreted strictly in order not to frustrate this specific
aim of the Code of Conduct (1).

CONFIDENTIALITY OF DOCTOR-PATIENT RELATIONSHIP

Decision on complaint 819/19.8.96/GV/I/VK against the European
Commission

3.4. In the present case,

related to the possible opening of

the documents concerned were
an
admittedly
infringement procedure under Article 169. In the present
state of Community law,
the
the Commission has
to documents
possibility to refuse access
relating to
investigations which may
lead to an infringement
procedure under the heading of protection of the public
interest (2). It did not appear, therefore, that the refusal of
access to documents on these grounds constituted an
instance of maladministration.

Conclusion

On the basis of
into this
the Ombudsman’s
complaint, it appears necessary to make the following critical
remark.

inquiries

In ensuring as guardian of the Treaty that Member States fully
comply with Community law, the Commission should work in
accordance with principles of good administration and act
with due diligence. This implies that the Commission should
actively seek to make the Member State concerned put an end
to the infringement, and also inform the complainant of its
actions.

In its replies to the Ombudsman in this case, the Commission
claimed that its attitude had been very active in relation to the
complaint during the seven years that had elapsed since the
sending of the reasoned opinion. However, despite a request
from the Ombudsman, it had failed to provide clear, precise
and transparent information to support this claim and thereby
demonstrate that it had acted with due diligence throughout
this long period of time.

this aspect of

the case concerned procedures
Given that
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

(1) Case T-124/96. Judgment of 6 February 1998 Interporc Im- und
Export GmbH v Commission [1998] ECR II-0231, paragraphs 48
and 49.

(2) Case T-105/95, WWF UK v Commission [1997] ECR II-313,

paragraph 63.

The complaint

the complainant was awarded a traineeship at

In August 1996, X complained to the Ombudsman about the
behaviour of a Commission official during his traineeship at
the Translation Service of the Commission in Luxembourg. In
the
1994,
Commission. Right at the beginning of his traineeship, he fell
ill. He forwarded the necessary medical certificates to the
Commission. In January 1995, his head of service telephoned
in Italy, who had issued the certificates, and
X’s doctor
inquired about his situation. X considered that the head of
service had behaved incorrectly and wrote a letter of complaint
to the Commission. He received no reply to this letter.

In the complaint to the Ombudsman X claimed:

(i)

the head of

service concerned was
the behaviour of
incorrect. In substance, X alleged that the head of service
warned the doctor not
to issue unfounded medical
certificates;

(ii) the Commission should have replied to his letter.

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission recognised that the head of service
contacted the complainant’s doctor in January 1995 in order
to (cid:145)clarify the situation(cid:146). According to the Commission, the
intervention of
the head of service was purely limited to
questions necessary for this purpose and he did not attempt to
influence the doctor’s judgement. He merely reminded her that
medical certificates were required to justify all absences. The
Commission also recognised that the head of service informed
the doctor about the complainant’s accommodation situation
in
this
information was relevant to the discussion with the doctor and
contained
the
Commission concluded that at all times, the head of service
behaved in accordance with normal practice and professional
ethics.

Luxembourg. According

defamation. Therefore,

the Commission,

elements

no

to

of

the

concerns

As
the
Commission’s opinion stated that a reply to the letter was
drafted but was not sent due to an administrative oversight.

complainant’s

grievance,

second

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The complainant’s observations

Conclusion

In his observations, the complainant maintained his complaint.

On the basis of
into this
the Ombudsman’s
complaint, it appears necessary to make the following critical
remarks.

inquiries

The Decision

1.

The claim that the head of service should not have
contacted the complainant’s doctor

1.1. The rules governing in-service training at the Commission
make provision for the procedure to follow in case of
absence due to sickness (1). Article 33 of the rules appears
to provide the administration with adequate safeguards
for its interests. A trainee who is ill for more than three
days, must be able to prove this by a medical certificate;
if he is
the
administration may disregard the illness.
If a certificate
leaves the Commission with unanswered questions, a
specific procedure is provided:
i.e. the trainee may be
required to undergo a medical examination.

incapable of producing such evidence,

1.2. As recognised by the Court of

formed between a patient

Justice, a confidential
relationship is
seeking
treatment and his or her doctor (2), which it is important
to safeguard. Principles of good administration require the
the
the
Commission to respect
doctor-patient relationship.

confidentiality of

the

directly

and without

1.3. In the present case, the complainant’s head of service
complainant’s
contacted
the doctor who had issued a medical
permission,
certificate to the complainant. Whatever
the precise
nature of the information sought or provided about the
this action
complainant’s situation,
risked damaging the confidentiality of the doctor-patient
relationship.
If the Commission considered that it was
necessary to clarify the situation, the procedure expressly
foreseen by Article 33 of the rules governing in-service
training could have been used.

is obvious that

it

2.

Failure to reply to the complainant’s letter

2.1. According

to

the Commission,

the
complainant’s letter was drafted but was not sent because
of an administrative oversight.
It would have been
appropriate for the Commission also to express regret for
this oversight.

reply

to

a

(1)

if
(cid:145)In case of sickness trainees must notify their advisers immediately;
absent for more than three days they must produce a medical certificate,
indicating the probable length of absence, which the adviser will forward
to the Training Division. They may be required to undergo a medical
examination in the interest of the service(cid:146).

(2) Case 155/78 M. v Commission [1980] ECR 1797.

1. As recognised by the Court of

the

confidentiality of

Justice, a confidential
relationship is formed between a patient seeking treatment
and his or her doctor, which it is important to safeguard.
Principles of good administration require the Commission
to respect
the doctor-patient
relationship. In the present case, the complainant’s head of
service contacted directly and without the complainant’s
permission, the doctor who had issued a medical certificate
to the complainant. Whatever the precise nature of the
information sought or provided about the complainant’s
situation, it is obvious that this action risked damaging the
the
confidentiality of
Commission considered that it was necessary to clarify the
situation, the procedure expressly foreseen by Article 33 of
the rules governing in-service training could have been
used.

the doctor-patient relationship.

If

2. According to the Commission, a reply to the complainant’s
letter was drafted but not sent because of an administrative
the
It would have been appropriate
oversight.
Commission also to express regret for this oversight.

for

the case concern procedures
Given that both aspects of
relating to specific events in the past, it is not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

REASONS FOR REJECTION OF CANDIDATE

Decision on complaint 825/20.8.96/SH/SW/VK against
European Commission

the

The complaint

complained

to the Ombudsman
In August 1996, X.
concerning his
exclusion from the Commission’s open
competition COM/A/972, in which he was a candidate. This
open competition was based on qualifications and an oral test
to constitute a reserve list of medical advisers of grade A 5/
A 4 of Austrian, Finnish or Swedish nationality.

On request, X. provided the Commission with a curriculum
vitae which gave details about his education and experience in
the required fields.

By letter of 29 May 1996, X. was
informed that his
candidature had been rejected by the selection board. The

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18.10.1999

standard letter of rejection mentioned as alternatives both that
X. lacked a medical qualification and that he failed to provide
proof of studies in the field of occupational medicine (ett
utbildningsbevis efter specialstudier i arbetsmedicin).

By letter of 8 June 1996, X. asked the selection board to
reconsider his application.
the selection board
stated that X. did not have sufficient professional experience in
the fields of tropical medicine and radiation safety.

In its reply,

In his complaint to the Ombudsman X. claimed that:

The complainant’s observations

the

In his observations,
the
Commission’s explanations were still not entirely clear. He also
pointed out that the Commission admitted that it had given
two different reasons.

claimed that

complainant

expressed his

the board’s
Finally, X.
assurance that its decision was not influenced by the timing of
his studies in the Swedish education system.

satisfaction about

his qualifications met
the requirements for the open
competition. In particular, he emphasised that he did have
professional experience in the field of radiation safety and
that this was not taken into account;

The Decision

1.

The Selection Board’s reasoning

(i)

(ii)

(iii)

the Commission had given two different
reasons for
rejecting his application and that he had not therefore
for
received an appropriate
reconsideration of his case;

request

to his

answer

the Commission’s
indicate
discrimination against candidates with Swedish medical
qualifications.

reasoning

faulty

could

The inquiry

The Commission’s opinion

complaint was

In
the Commission’s opinion made the following

forwarded to the Commission.

The
summary,
points.

(i) The

board

selection

complainant’s
application form and decided not to admit him to the
competition because it considered that he did not possess a
diploma in occupational health medicine.

examined

the

(cid:145)The decision was notified to X. by a letter dated 29 May 1996.
The board recognised that the letter was not absolutely clear on
the motivation for this decision(cid:146).

(ii) On

the

board

slection

request,

the
complainant’s application and came to the conclusion that
he did not have sufficient experience compared with the
other candidates, neither
in
radiation safety.

in tropical medicine nor

re-examined

III.B.2 of

1.1. Competition COM/A/972 was organised to constitute a
reserve list of grade A 5/A 4 medical advisers on
occupational health in the Commission’s Medical Service.
Point
the notice of competition required
candidates to be holders of a higher university degree in
medicine and a certificate of specialised occupational
health studies. Furthermore, candidates were required to
have professional experience of, among other
things,
tropical medicine and radiation safety.

1.2. In its first letter to the complainant, the selection board
gave as the reasons for rejecting his candidature either the
fact that he lacked a medical qualification or that he had
in the field of
failed to provide proof of
occupational medicine
efter
(ett
In its second letter, the
specialstudier i arbetsmedicin).
selection board gave a different reason: that he lacked
sufficient experience compared with the other candidates
in both the tropical medicine and the radiation safety
fields.

utbildningsbevis

studies

1.3. It

is a fundamental principle of good administrative
behaviour that decisions should be reasoned, as required
the EC Treaty. The
for example, by Article 190 of
reasoning should enable the affected party to know why a
particular measure has been taken. In its comments to the
Ombudsman,
the
selection board’s first letter to the complainant was not
absolutely clear on the motivation for this decision. In
fact, it appears that the reasoning was not only unclear,
but also wrong.

the Commission recognised

that

1.4. In its second letter, the selection board considered the
complainant’s
compared with
other candidates in both the tropical medicine and the
radiation safety fields.

insufficient

experience

(cid:145)The board can assure [X.] that its decision was not influenced
by the timing of his studies in the Swedish education system but
only by the need to ensure
that only the most qualified
candidates were invited to the interview(cid:146).

1.5. Article 27 of

the European
the Staff Regulations of
Communities provides that recruitment shall be directed
to securing for the institution the services of officials of

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C 300/123

the highest standard of ability and efficiency. In applying
the criteria laid down in the notice of competition, the
selection board was entitled to make a comparative
evaluation of the candidates in order to ensure that the
most suitable candidates were chosen for interview.

1.6. Taken by themselves, the reasons given in the second
letter appeared adequate to enable the candidate to
understand the reasons for his rejection. Furthermore the
reasons were consistent with the proper exercise of
judgement by the selection board. However, the second
letter did not acknowledge that the reasons given in the
first letter were wrong. Taken together therefore, the first
and second letters were inadequate to explain the reasons
for the candidate’s rejection.

2. Alleged discrimination against candidates with Swedish

medical qualifications

2.1. In its opinion, the Commission stated that its decision
was not influenced by the timing of the complainant’s
studies in the Swedish education system but only by the
need to ensure that only the most qualified candidates
were invited to the interview.
In his observations the
complainant expressed satisfaction with this response.

pursue a friendly solution in the matter. The Ombudsman
therefore closed the case.

MODIFICATION OF GRANTS FOR RESEARCH

Decision
878/13.9.96/TT/IT/PD
905/26.9.96/AGS/IT/PD against the European Commission

complaints

on

and

The complaint

In September 1996, the Grant Holders Association complained
to the Ombudsman about a reduction in the grants which its
members received from the Commission and about the way in
which the Commision had made the reduction.

In 1994, the Council and the European Parliament adopted
Decision No 1110/94/EC (1) concerning the fourth framework
programme of the European Community activities in the field
of research and technological development and demonstration.
Under the Euratom Treaty,
the Council adopted a parallel
decision, Decision 94/268/Euratom (2) concerning a framework
of Community activities in the field of research and training
for the European Atomic Energy Community.

2.2. The Ombudsman’s

revealed no
evidence of maladministration in relation to this aspect of
the complaint.

therefore

inquiries

into this
the Ombudsman’s
On the basis of
complaint, it appeared necessary to make the following critical
remarks:

inquiries

recitals

to the

to the

two Decisions,

the
According
Communities’ actions within the framework programmes shall,
among other objectives, aim at stimulating and promoting the
researchers, particularly young
training and mobility of
researchers. Furthermore,
the
Communities shall contribute to the implementation of the
framework programmes.

the Joint Research Centre of

It is a fundamental principle of good administrative behaviour
that decisions should be reasoned, as required for example, by
Article 190 of the EC Treaty. The reasoning should enable the
affected party to know why a particular measure has been
taken. In its comments to the Ombudsman, the Commission
recognised that
to the
complainant (cid:145)was not absolutely clear on the motivation for
this decision(cid:146). In fact, it appeared that the reasoning was not
only unclear, but also wrong.

the selection board’s

letter

first

for his

Taken by themselves, the reasons given in the second letter
appeared adequate to enable the candidate to understand the
rejection. Furthermore the reasons were
reasons
judgment by the
consistent with the proper exercise of
selection board. However,
did not
acknowledge that reasons given in the first letter were wrong.
Taken together therefore,
the first and second letters were
inadequate to explain the reasons for the candidate’s rejection.

second

letter

the

for

The role of the Joint Research Centre is laid down in more
detail by Council Decision 94/918/EC adopting a specific
programme
research and technological development,
including demonstration, to be carried out for the European
Community, on the one hand, by the Joint Research Centre
and, on the other hand, by means of activities within the
framework of a competitive approach and intended for
scientific and technical support to Community policies (3) and
by Council Decision 94/919/Euratom adopting a specific
research and technological development,
programme of
to be implemented by the Joint
including demonstration,
Research
Energy
the
Community (4).

European Atomic

Centre

for

It appears from the recitals to these two Decisions that the
Joint Research Centre, with its laboratories and installations,
shall make an effective contribution to the training and
mobility of researchers.

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to

this aspect of

(1) OJ L 126, 18.5.1994, p. 1.
(2) OJ L 115, 6.5.1994, p. 31.
(3) OJ L 361, 31.12.1994, p. 114.
(4) OJ L 361, 31.12.1994, p. 132.

C 300/124

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Official Journal of the European Communities

18.10.1999

these acts,

Under
the Joint Research Centre entered into
contracts with researchers from the different Member States of
the Community. The individual contract is a standard form to
be filled in with the individual elements of each case and is
entitled (cid:145)Individual fellowship contract between the European
Community and (X)(cid:146). An Annex containing general conditions
applicable is attached to the contract. Both documents are
drafted by Commission services. The standard form provides
for the duration of the fellowship at the Joint Research Centre
which normally is two years. During the fellowship,
the
researcher receives a monthly grant from the Community.

In all contracts concerned in this case, Article 4(1) of the
standard form used provided:

contractor,

the
the
(cid:145)The Commission shall pay
duration of the fellowship, a monthly amount of ECU (cid:133). This
sum will be modified, either up or down, following approval by
the European Commission of
conditions
governing research training fellowships. This modification will not
be backdated(cid:146).

the new general

throughout

this background,

In the complaint

Against
the researchers assembled in the
Grant Holders Association decided to lodge the complaint with
the Ombudsman.
the
decision taken completely upset the basis on which individual
grant holders had entered the
in
it was
particular for researchers with a family. Furthermore,
stated that the decision taken made it materially very difficult
for the researchers to continue to stay at the Joint Research
Centre. The Association’s allegations were in substance that:

research programme,

it was stated that

1.

the Commission should have informed the grant holders in
advance about
the possible forthcoming reduction of
grants, before making its decision;

2.

the letter of 6 August 1996 should have been addressed to
each individual grant-holder in his own language;

3.

the clauses in the contracts allowing for the reduction of
grants were illegal and unfair and ran against the spirit of
the mobility programmes.

Article 9 of the standard form established that the general
conditions attached form an integral part of the contract and
that

The inquiry

(cid:145)These general conditions will be replaced, following approval of
the
training
fellowships. The replacement will not be backdated(cid:146).

new general

conditions

governing

research

the Commission adopted a decision
On 29 July 1996,
establishing new standard contract
forms, new amounts of
grants and new general conditions. The Commission also
decided that
the decision should be applied to all existing
contracts containing the above quoted clauses. According to
the decision, it should take effect as from 1 August 1996. It is
established that as a result of this decision, the current grants
of roughly 50 grant holders suffered a reduction of 30 %.

the Commission services

By letters of 6 August 1996 the individual grant-holders were
informed about the decision and that it became effective as
from 1 August 1996. The letter was drafted in French.
Attached to the letter were the new general conditions in
French as well as an unofficial translation of them into English.
The letter ended by asking the individual grant holder to
contact
the signing of new
contracts, but not until 9 September 1996, given the summer
holidays. Thereafter, the grant-holders undertook considerable
activity, consulting lawyers and contacting Commissioners and
Commission services with a view to making the Commission
refrain from reducing the current grants and in order to seek
clarification on some clauses in the new general conditions.
Apart from this last aspect, these contacts were apparently
fruitless.

for

The Commission’s opinion

informed,

grant-holders

As concerned the Association’s first grievance, the Commission
stated that the administration of the Joint Research Centre kept
the
the
Association, of the progress of discussion on the new grant
amounts. The Commission stressed in particular that a meeting
took place on 11 July 1996 at the Ispra site of the Joint
Research Centre, during which grant-holders were informed
about the forthcoming Commission decision.

either directly or

via

As concerned the letter of 6 August 1996, the Commission
recognised that it was wrong to send only a French version of
the letter to the grant-holders and undertook not to repeat the
error in future. It also undertook to have contracts translated
into the other Community languages.

third

grievance,

concerned

the Association’s

the
As
Commission stated that
the new amounts of grants were
adopted for the sake of coherence and uniformity, so that the
amount of the grants would be identical to the ones used in
training through research contracts under other programmes
of the fourth framework programme established by the above
quoted Decisions. The Commission furthermore stated that
new amounts were determined after close consultation with
representatives of the Member States; they were calculated in

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Official Journal of the European Communities

C 300/125

such a way as to ensure, as far as possible, that grant holders
received a net amount comparable to what a researcher of an
equivalent level would earn in the host country.

Further inquiries

It was decided that the new amounts should also be applied to
current contracts which contained the above quoted clauses.
However, in order to allow the 47 grant-holders at the Ispra
site and the four grant-holders at the Seville site of the Joint
Research Centre to prepare for the substantial reduction in
their grants, the Commission decided on 16 December 1996
to suspend the application of the Decision until 31 March
1997. Thus, until that date, there was no reduction of the
current grants.

The Association’s observations

As concerned the first grievance, the Association stated that
the local administration at the Ispra site of the Joint Research
Centre did everything in its power to keep grant-holders
informed about developments concerning them. However, the
Association stated that the local administration was faced with
information from the Commission’s services in
a lack of
Brussels. In any case, it was not until the meeting of 11 July
1996 that
the
the grant-holders were
forthcoming reduction of their grants.

informed about

As concerned the second grievance, the Association stated that
it accepted the Commission’s apology for sending only a
French version of the letter of 6 August 1996 to the individual
grant-holders.

As concerned the new amounts of grants,
the Association
stated that it did not question the Commission’s entitlement to
establish new amounts.
It was even prepared to accept the
considerations underlying the new amounts and the aim
purported by the new amounts,
i.e. amounts comparable to
what a researcher of an equivalent level would earn in the
same country. However, the Association strongly questioned
why new amounts had to be applied to running contracts. In
this context, it was underlined that the reduction of grants in
running contracts was not aimed at compensating for,
for
example lower living costs or lower taxes;
in that case, the
reduction of the grant would not imply a net reduction of the
grant. The Commission Decision adopted did not refer to such
possibly justifiable
circumstances. The Decision, on the
contrary,
implied a 30 % net reduction of grants in running
contracts. In some cases, the reduction completely frustrated
the conditions underlying the researcher’s taking up of the
the
for
research programme. As
Commission adopted on 16 December 1996 of the Decision
taken, the Association welcomed this but stated that those
researchers, whose contracts would not terminate until the end
of 1997, would still suffer severe negative effects of
the
Decision taken.

suspension that

the

After due consideration of the Commission’s opinion and the
the Ombudsman addressed the
Association’s observations,
Commission. In his letter, the Ombudsman stated that while
the general aim pursued by the establishment of new grant
amounts appeared understandable, the Commission had not
specified why its Decision had to be applied to current grants.
The Ombudsman furthermore stated that researchers could
reasonably expect the Commission not to make such a drastic
use of the quoted contract clauses, and that a 30 % reduction
in the current grants had made it materially very difficult for a
number of researchers to continue their work and in any case
threatened their motivation. Finally, the Ombudsman stated
that it could not be excluded that in future, researchers would
refrain from joining the research schemes, if it became known
that grants may be drastically reduced during the course of a
contract. The Ombudsman concluded by suggesting that the
Commission review its position in the
these
considerations.

light of

In its answer to this letter, the Commission stated that it had
very often been criticised on the grounds of the high amounts
it allocated to grant-holders and for failing to fully consider the
existing conditions of
the country where the research was
carried out. According to the Commission, these issues had
been discussed in the relevant programme committee, and
taking into consideration the points
several
delegations, the Commission decided the new amounts. The
Commission pointed out that the new amounts were intended
to provide coherence and equity with respect to grants used in
other
framework
programme.

programmes

raised by

specific

fourth

the

of

Other facts

It appeared from a complaint lodged with the Ombudsman on
(complaint 855/97/PD) that given the
23 September 1997,
drastic reductions of the current grants, one researcher had to
abandon his research programme and return to his home
country with his family.

The Decision

1. As concerned the first grievance about lack of information
and communication with the grant-holders prior to the
firstly be observed that
Commission’s Decision,
it shall
principles of
the
administration shall deal with citizens in a fair and just
way. This implies, among other things,
that when the
administration intends to take measures towards a limited

administration require

good

that

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Official Journal of the European Communities

18.10.1999

of

clearly

number

citizens,

identified

and
the
administration shall establish suitable contacts with the
citizens concerned, making it possible for them to voice
their opinion. It also implies that citizens shall be informed
with due notice about the measures taken, so they can take
changed
adequate
situation.

themselves

to adapt

to the

steps

Conclusion

On the basis of
complaints,
critical remark.

the Ombudsman’s

into these
it appeared necessary to make the following

inquiries

there were no contacts
In this case it appeared that
responsible and the
between the Commission services
the meeting of 11 July 1996 the
grant-holders. At
grant-holders were simply informed about
the possible
reduction of their grants before the Commission actually
took its Decision to that effect on 29 July 1996. When the
grant holders were informed about the actual reduction
that the Decision implied by the letters of 6 August 1996,
the reduction had already taken effect. This way of
proceeding appeared high-handed and arrogant and thus
did not comply with principles of good administration.

2. As

concerned the

letter of 6 August 1996,

the
Commission acknowledged that
the letter should have
been sent to the individual grant holder in his language
and apologised for this. Therefore, the Ombudsman did
not find that there were grounds for pursuing the inquiry
into this aspect of the complaint.

it shall be observed that

3. As concerned the allegation that the clauses which allowed
for the drastic reduction of grants to take place were
illegal,
this question must be
assessed in the light of the applicable national law, which
must be done by the competent national authorities. The
Ombudsman did therefore not examine this question.
However, the administration must always be accountable
to the Ombudsman for its observance of principles of
good administration and thus be able to provide the
Ombudsman with a coherent account of its actions and
why it believes them to be justified. Principles of good
administration require
the
that
Commission deals with citizens in a fair and just way.

among other

things

In this case it was established that the clauses which the
Commission had inserted in the standard contract allowed
for reduction of current grants without any limitations and
without giving any indication as to the parameters that
would underlie a reduction. The clauses must be deemed
to make the taking up of a research traineeship very
precarious and make abuses possible. They cannot be
qualified as fair. Considering this, there must at least be
overriding reasons
resorting to the clauses. The
Commission was not able to indicate such overriding
reasons.

for

Principles of good administration require that the Commission
deals with citizens in a fair and just way. By failing to establish
suitable contacts with the grant-holders concerned by a
substantial reduction that the Commission envisaged making
of their grants and by failing to inform them with due notice
this
the Commission failed to meet
about
requirement. The Commission also failed to meet
the
requirement by using unfair contract clauses.

the reduction,

the case concerned procedures
Given that
these aspects of
the grant-holders
in the past,
relating to specific events
concerned having ended their
fellowship with the Joint
Research Centre, it was not appropriate to pursue a friendly
settlement of the matter. The Ombudsman therefore closed the
case.

SUBSIDY FOR A FILM FESTIVAL: INADEQUATE REASONING

Decision on complaint 23/97/KH against the European Commission

The complaint

By letters dated in December 1996 and January 1997, Mr M.
complained on behalf of the Stichting Nederlands Film Festival
(NFF) against the Commission. He alleged incomprehensible
treatment by Commission Directorate-General XIII, bad
functioning and shortage of information.

The background to the complaint can be summarised as
follows. In 1995, NFF organised a day of scientific films for
which it received a subsidy from the Commission. Apparently,
both NFF and the Commission services involved considered the
event to be a success. NFF then took the decision to organise
another day of scientific films in 1996,
for which it also
applied for a Commission subsidy. However, the subsidy was
not obtained.

NFF made the application for the subsidy for the 1996 day of
scientific films in May 1996. The Commission replied by
letters of 18 June 1996 and 28 June 1996.

Against this background, the Ombudsman found that by
using unfair contract clauses, the Commission had failed to
act in accordance with principles of good administration.

The first letter indicated that the complainant’s project was of
the
a nature which could receive a subsidy. However,

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complainant would have to rearrange the budget so as to
bring it within the ECU 12 000 (1) limit which, according to
the rules of the relevant Commission programme could not be
exceeded. An application form was enclosed with the letter.

We have carefully examined the possibility of granting financial
aid also to the 16th edition of the Dutch Film Festival. I regret
to inform you that
the application was not accepted by our
financial authorities, considering that at that moment the report
of the previous event was not yet satisfactorily done.

The second letter contained an additional application form,
and stated what documents should be attached to it. It also
informed the complainant that the application had to be sent
as soon as possible.

On 1 July 1996 the NFF replied stating:

(cid:145)Hereby you receive the specified budget of
the
Scientific Film and the Masterclass and the Seminar. We kindly
request you for an EC financial support of ECU 12 000 and
participation of EC representatives at the events (DG XIII D/2)(cid:146).

the Day of

By letter of 11 September 1996 the Commission replied,
stating:

(cid:145)I regret to inform you that your application for the subsidy has
been rejected. I apologise for the trouble this decision may cause
to you. The final report from the 1995 event has not yet been
presented to the Commission in the form as requested in the
contract.
the contractual
It
obligations(cid:146).

is being seen as a violation of

Thereafter, a meeting took place between the responsible
Commission services and NFF on 23 September 1996. After
the meeting, NFF addressed a letter to the Commission on 27
November 1996. In the letter, NFF informed the Commission
that the Film Festival had been a great success. The letter also
stated that,
to your office and our
[M’s] visit
telephone call you promised to contact me after the festival
about the procedure concerning the ECU 25 000 subsidy for
the Second Day of the Scientific Film. I tried to get in touch
with you by phone but I could not get hold of you. I would be
grateful if you could contact me about the project mentioned
above(cid:146).

(cid:145)After Mr

Following this letter, NFF informed the Commission services
on 29 November 1996 that it had decided to continue the
subsidy procedures as quickly as possible via diplomatic
channels. On 9 January 1997 the Commission addressed the
following letter to NFF:

I am sorry not to have been able to help you on this occasion(cid:146).

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission. In its first
opinion, the Commission stated that, in respect of the 1995
subsidy, NFF had failed to fulfil one of its basic obligations by
submitting its report for the assistance too late. The payment
had, however, been approved.

also

The Commission
complainant’s
referred
correspondence regarding the 1996 project. With reference to
its letter of 18 June 1996, the Commission stated that NFF had
been duly informed of
such
subsidies, and that NFF was asked to submit a new application.

the ECU 12 000 limit

the

for

to

Regarding subsequent applications from NFF, the Commission
stated that a search of the document registration system of the
relevant Directorate-General showed no entries referring to an
application or to correspondence in this respect. NFF later
inquired about the subsidy. The Commission conceded that the
reply, informing NFF that their application had been formally
rejected, was mistaken. In a subsequent telephone conversation
the Commission informed NFF that no application had actually
been received and that it had become too late to make such
application. On 23 September 1996, NFF enquired anew
whether a subsidy for the 1996 project could still be given.
They were informed that there was no possibility to fund the
1996 event.

The complainant’s observations

In its observations, NFF maintained the complaint. Due to the
Commission’s letter of 9 January 1997 mentioning NFF’s
failure to account adequately for the spending of the subsidy
in 1995, NFF extensively documented the way in which it
accounted for the spending of the 1995 subsidy.

(cid:145)I am happy to inform you that the payment of our financial
contribution to the NFF 1995 has been finally approved by our
financial authorities. The subsidy of ECU 12 000 should be
credited to your bank account within the next few days.

Further inquiries

(1) Innovation, The third activity of the fourth framework programme
for research and technological development, dissemination and
optimisation of results.

In view of the different reasons given by the Commission for
not granting the 1996 subsidy, the Ombudsman asked the
Commission for further information.

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In its second opinion the Commission stated that the question
of whether to grant a subsidy or not was never considered,
because no duly completed application forms were ever sent to
the Commission.

Conclusion

The Commission added that, following NFF’s complaint, the
services responsible had reviewed their internal procedure in
order
regards
it more
communication with applicants for subsidies.

formal, particularly as

to make

In its observations on the Commission’s second opinion, NFF
maintained its complaint.

The Decision

1. The Commission in its two opinions did not maintain that
a subsidy for the 1996 event was refused because of NFF’s
failure to account properly for the spending of the 1995
subsidy. The Ombudsman did therefore not inquire into
the Commission’s view that NFF’s
the correctness of
accounting was faulty.

2. The Commission maintained that NFF did not receive a
subsidy for the 1996 event because no formal application
was ever
received. No conclusive evidence had been
produced to the effect that the Commission did indeed
receive the formal applications. Therefore, the Ombudsman
could not inquire further into the question whether the
Commission had dealt improperly with NFF’s application.

the

3. The case-law of the Court of Justice and principles of good
administration require
administration gives
that
adequate and coherent reasons for the measures it takes
towards the citizens (1). In this case, it appeared that the
Commission at first, gave no reasoning for rejecting the
complainant’s application for a subsidy;
it
motivated the rejection by referring to the complainant’s
alleged failure to comply with accounting requirements for
subsidy; and finally the
the spending of a previous
Commission indicated that had it never
received the
application. Thereby the Commission had failed to meet
the requirement of adequate and coherent reasons.

thereafter

4. The Ombudsman welcomed the Commission’s initiative to

review its procedures.

(1) See among other judgment of 7 November 1997 in case T-218/95,
Azienda Agricola (cid:145)Le Canne(cid:146) v Commission, [1997] ECR II-2055
(paragraph 65). See also for the administration’s liability to explain
itself, J. A. Usher, (cid:145)The good administration of Community law(cid:146), in
Current legal problems (1985) p. 278.

On the basis of the inquiries into this complaint, it appeared
necessary to make the following critical remark.

The case-law of the Court of Justice and principles of good
administration require that the administration gives adequate
and coherent reasons for the measures it takes towards the
citizens. In this case, it appeared that the Commission at first,
gave no reasoning for rejecting the complainant’s application
for a subsidy; thereafter it motivated the rejection by referring
to the complainant’s alleged failure to comply with accounting
requirements for the spending of a previous subsidy; and
finally the Commission indicated that had it never received the
application. Thereby the Commission had failed to meet the
requirement of adequate and coherent reasons.

this aspect of

the case concerned procedures
Given that
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

MUTUAL RECOGNITION OF HELICOPTER LICENCES

Decision
Commission

on

complaint

121/97/VK against

the

European

The complaint

In February 1997, Mr B. made a complaint to the Ombudsman
against the Commission. He alleged that the Commission had
failed to ensure that the German authorities complied with a
Directive on mutual acceptance of personnel licences for the
exercise of functions in civil aviation (2). He also alleged that
the Commission had failed to act in accordance with its own
obligations under the Directive.

Mr B. had asked the German authorities for the recognition of
his Austrian professional helicopter
licence. The German
authorities considered that his licence was not equivalent to a
German one and therefore, they would not grant recognition
unless Mr B. complied with additional conditions. Mr B.
considered this to be discriminatory and complained to the
Commission. After an exchange of correspondence, Mr B. was

(2) Council Directive 91/670/EEC of 16 December 1991 (OJ L 373,

31.12.1994, p. 21).

1.

2.

3.

4.

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dissatisfied with the Commission’s stand and complained to
the Ombudsman. He alleged that the Commission had failed:

The complainant’s observations

to make the comparison of requirements applied in each
Member State for issuing helicopter licences, which is
foreseen by Article 4 of the Directive;

In his observations Mr B. maintained his complaint.

impose
to ensure that
discriminatory conditions for the recognition of Austrian
helicopter licences;

the German authorities do not

The Decision

to establish the proposal for a Council act on full mutual
recognition of
foreseen by the recitals to the
Directive;

licences,

to reply to a letter that Mr B. addressed to Mr Probst of
Commission Directorate-General VII, on 9 September
1996.

The inquiry

The Commission’s opinion

1. As concerned the first grievance, Article 4(1) of

the Commission,

the
(cid:145)shall make, and
Directive states that
forward to all the Member States before 1 January 1992, a
comparison of the requirements applied in each Member
States for issuing licences for the same functions(cid:146). The
Commission admitted that it had not yet made such a
lies within the
comparison for helicopter
Commission’s powers to propose an amendment to the
Directive if it cannot meet the deadline laid down by the
Directive. Principles of good administration require that
the Commission complies with the rules and principles
which are binding on it. As the Commission did not
comply with Article 4(1) of
the Directive as concerns
helicopter licences, the Commission had not complied with
that requirement.

licences.

It

The complaint was forwarded to the Commission.
opinion, the Commission in substance stated the following.

In its

2. As regards the Commission’s assessment of the additional
conditions, established by the German authorities
for
recognition of Austrian helicopter licences, there were no
elements at hand which indicate this assessment
to be
wrong.

it

is

true

concerned the

first grievance,

the
As
Commission has not yet made the comparison of requirements
for helicopter licences applied in each Member State, which
according to Article 4(1) of the Directive should have been
made before 1 January 1992. However, the failure to provide
the comparison does not have any bearing on Mr B.’s
individual situation.

that,

The Commission was duly informed by the German authorities
about the additional conditions they established for recognition
of Austrian helicopter licences. After due consideration, the
Commission accepted these. Mr B. was informed about this.

As concerned the third grievance, the Commission relies for its
proposal on technical work carried out by the Joint Aviation
Authority which is an associated body of the European Civil
Aviation Conference. At the time of the Ombudsman’s inquiry,
the Authority had just finished its work concerning helicopter
licences which the Commission will examine in due course
with a view to establishing its proposal for a Council act.

As concerns Mr B.’s
the
Commission considered that a fax sent to him by the Bonn
Representation on 7 November 1996 made
reply
superfluous.

letter of 9 September 1996,

a

1

It

July

The

1992.

before

3. As concerned the third grievance, the last recital of the
Directive states that with a view to full mutual recognition
of licences, the Commission shall submit a proposal to the
Commission
Council
it had not yet provided such a
acknowledged that
proposal.
to
propose an amendment to the Directive if it cannot meet
the deadline indicated by the Directive. Principles of good
administration require that the Commission complies with
clear, unambiguous and publicly made statements about
when to submit legislative proposals. As the Commission
had not yet acted in conformity with the said recital, the
Commission had not met that requirement.

lies within the Commission’s powers

4. As concerned the fourth grievance, it shall be noted that
the fax of the Bonn Representation of 7 November 1996,
which the Commission considered to be a reply to Mr B.’s
letter of 9 September 1996, did not refer to the letter. The
contents of the fax did not appear to answer the important
questions raised in Mr B.’s letter. On the contrary, the fax
ended by stating that the Representation would contact the
Commission services in Brussels so that they addressed Mr
B. Principles of good administration require that
the
Commission replies to letters addressed to it. As the
Commission did not reply to Mr B.’s letter of 9 September
1996, the Commission had not met that requirement.

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Conclusion

On the basis of
into this
the Ombudsman’s
complaint, it appeared necessary to make the following critical
remarks.

inquiries

(i)

(ii)

Principles of good administration require
the
Commission complies with the rules and principles
binding on it. Given that as concerns helicopter licences,
the Commission has not yet complied with the obligation
laid down by Article 4(1) of Directive 91/670/EEC, the
Commission failed to meet that requirement.

that

the
Principles of good administration require
that
and
Commission complies with clear, unambiguous
publicly made
about when to submit
legislative proposals. As the Commission has not yet
recital of
made the proposal,
Directive
the
Commission has failed to meet that requirement.

foreseen by the last

91/670/EEC before

statements

1992,

July

1

(ii) The decision to co-finance the project had not been
the

appropriately published in the Official
European Communities.

Journal of

complaint

concerned

together with the

Public Works. The

community of Mytika,

(iii) On 8 January 1996, using the Commission’s standard
complaint form (OJ C 26, 1.2.1989, p. 6) the association
made,
a
complaint alleging non-compliance with Community law
by the Greek Ministry of Environment, Regional Planning
and
the
Ministry’s joint decision No 30146/94 of 11 July 1995 to
Ionian sea at
discharge processed sewage
Kalamitsi. According to the complainant,
this decision
was contrary to Community and national environmental
law. The association also asked the Commission to
suspend its funding of the project mentioned under (i).
The association also sent to the Commission five other
letters on 7 February 1996, 8 March 1996, 6 May 1996,
15 July 1996, and 8 January 1997, in which it provided
new information as regards its original complaint. DG
XVI never answered those letters and did not inform the
association about the progress of its complaint.

into the

(iii) Principles of good administration require

the
Commission replies to letters addressed to it. As the
Commission did not
letter of 9
September 1996, it failed to meet that requirement.

reply to Mr B.’s

that

these aspects of

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

FAILURE TO INFORM ABOUT THE OUTCOME OF A COMPLAINT

Decision
Commission

on

complaint

250/97/OV against

the

European

The complaint

In March 1997, Mr S. complained to the Ombudsman, on
behalf of an association, alleging lack or refusal of information
by the Commission (DG XVI. E. 3). He more particularly made
the following claims.

(i) When the association learnt about the decision of the
(cid:145)Draining and
Commission to co-finance the project
in Preveza, Greece from the
biological cleaning system(cid:146)
Cohesion Fund,
(Regional Policy and
Cohesion) by telephone for a copy of the decision, but
the request was refused.

it asked DG XVI

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission in June
1997. As regards the first allegation, the Commission’s opinion
stated that the competent service informed the complainant
that, according to Article 2(1) of the Commission Decision of
8 February 1994 on public access to Commission documents,
the application should be made in writing. The Commission
observed that, on receipt of a written demand, it would see no
obstacle to sending the Decision to the complainant, but such
a request had not been received.

Journal of

As regards the second allegation, the Commission observed
that, according to Article 10(7) of Council Regulation (EC) No
1164/94 (1), only the key details of the Commission’s decisions
have to be published in the Official
the European
Communities. For the present project the key details had been
published in Official Journal of the European Communities C 122
of 19 April 1997. However, the Commission explained the
delay between the adoption of the decision and its publication
in the Official Journal of the European Communities by referring
to the size and the nature of the publication which grouped
together 66 projects adopted on different days. Given that,
once adopted, the decisions are notified to the Member States,
the key details are only published for transparency reasons.
Therefore the Commission prefers
the
information related to different projects instead of publishing it
the European
the Official
in separate parts of
Communities.

to group together

Journal of

(1) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing

a Cohesion Fund (OJ L 130, 25.5.1994, p. 1).

18.10.1999

EN

Official Journal of the European Communities

C 300/131

With regard to the third allegation,
the Commission first
observed that its services had concluded that the project did
not violate Community law, and that, therefore, the complaint
did not need to be registered. More particularly, there was no
violation of Council Directive 85/337/EEC (1), which entered
into force after the project had started in 1985.

It was only after a preliminary decision of the Greek Council
of State, and after an environmental impact assessment decided
by the Minister of Environment, that the Commission decided
on 5 November 1996 to co-finance the project. This decision
had been taken in conformity with the decision of the Greek
Council of State.

The Commission observed that, further to his complaint dated
8 January 1996, two acknowledgement receipts had been sent
to the complainant on 17 January and 19 February 1996, by
respectively the Regional Fund and the Cohesion Fund
Divisions, but that it was not necessary to answer all the other
letters which the association had sent
to the Commission.
However, on 23 July 1997, the Cohesion Fund Division sent a
letter to the complainant in which it answered all previous
letters.

The complainant’s observations

the

and that

The complainant maintained his allegation that the publication
of the decision five months after its adoption constituted an
irregularity
association had received no
information about it. The complainant further observed that
there was no violation of
the Commission’s assertion that
Community law was wrong and that the Commission never
informed the association about the fact that the complaint had
been rejected. The complainant concluded that for a whole
year he received no reply at all to his letters which had been
ignored by the Commission.

competent Commission service of this formality in order
to obtain the requested document. However, it appeared
that
the complainant did not produce such a written
demand to DG XVI. Under these circumstances, the fact
send him a copy of
the Commission did not
that
of
did
decision
the
maladministration.

constitute

instance

not

an

2.

The alleged failure of appropriate publication of the
decision in the Official Journal of the European
Communities

2.1. The complainant alleged that the decision to co-finance
the project had not been appropriately published in the
Official Journal of the European Communities and that five
months passed between the adoption of the decision and
its publication. The Commission replied that
the key
details of
the present decision were published in the
Official Journal of the European Communities C 122 of 19
April 1997.

2.2. Article 10(7) of Council Regulation (EC) No 1164/94
provides that only the key details of decisions of
the
Commission approving projects and granting financial
support from the Cohesion Fund shall be published in the
Official Journal of the European Communities. The Regulation
does not foresee a time limit for this publication. In the
present case the decision was taken on 5 November 1996
and its key details were published on 19 April 1997. The
Commission explained this five months delay by referring
to the size and the nature of
the publication which
grouped together 66 projects adopted on different days. It
to group this
pointed out
information in one Official Journal instead of publishing
it separately. This explanation for the delay between the
adoption and the publication of the decision appeared to
be reasonable. Therefore the fact that the decision was
only published on 19 April 1997 did not constitute an
instance of maladministration.

services prefer

that

its

The Decision

1.

The alleged failure to send a copy of the decision
granting financial support

3.

The alleged failure to inform the complainant about the
outcome of his complaint concerning non-compliance
with Community law (Article 169 procedure)

The Ombudsman noted that, as regards a request for a
copy of a Commission decision to co-finance a project,
Article 2(1) of the Commission Decision of 8 February
1994 on public
to Commission documents
provides that all applications for access to documents
shall be made in writing to the relevant Commission
informed by the
department. The complainant was

access

3.1. This

of

the

part

concerned

alleged
complaint
maladministration in the administrative procedure for
dealing with a complaint for infringement of Community
law by a Member State. As regards this administrative
procedure, the Commission had, in its comments in the
framework of the Ombudsman’s own initiative inquiry
303/97/PD (2), observed that all complaints which reached
the Commission were registered and that no exceptions

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment
the effects of certain public and private projects on the

of
environment (OJ L 175, 5.7.1985, p. 40).

(2) 303/97/PD, reported in the European Ombudsman’s Annual report
for 1997 pp. 270 to 274 and see the Commission’s 15th Annual
report on monitoring the application of Community law (1997),
Introduction pp. III-IV (COM (1998) 317 final).

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EN

Official Journal of the European Communities

18.10.1999

were made to this rule, that it acknowledged receipt of
the complainant was kept
the complaint, and that
informed about the action taken by the Commission in
response to the complaint, or whether no action had
been taken on it. The Commission also observed that a
decision to close a file without taking any action must be
taken on every complaint within a maximum period of
one year of the date on which it was registered.

violation

July 1997,

law. However,

of Community

to the complainant

3.2. In the present case it appeared that two acknowledgement
in January and
receipts were sent
February 1996. The Commission then decided not
to
register the complaint because it concluded that there was
the
no
Commission did not inform the complainant about the
fact and the reasons why the complaint had not been
registered. The Commission left the complainant without
the outcome of his
any written information about
the
complaint until
acknowledgement receipts. More particularly, during this
period of 17 months in which the complainant had sent
five letters asking for information on the progress of his
complaint, the Commission did not inform him why it
found that there was no infringement of Community law.
The Ombudsman
the
Commission’s own observations in the framework of his
own initiative inquiry, no exceptions were made to the
rule that all complaints received by the Commission were
registered, and a decision to close a file without taking
any action must be taken within a maximum period of
one year
from the date when the complaint was
registered.

i.e. 17 months after

according

noted

that,

to

3.3. Even if

the

commitments which the Commission
undertook in the framework of the own initiative inquiry
dated from after the lodging of the present complaint, the
principles of good administrative behaviour require that
the Commission should have informed the complainant
adequately and as soon as possible about the outcome of
his complaint. Therefore, the fact that in the present case
the Commission did not inform the complainant about
the fact and the reasons why it did not register the
the complainant during 17
complaint, and even left
months without any written information about
the
outcome of his complaint, constituted an instance of
maladministration.

Conclusion

On the basis of the Ombudsman’s inquiries into parts 1 and 2
of
to have been no
appeared
maladministration by the Commission.

complaint,

there

this

On the basis of the Ombudsman’s inquiries into part 3 of this
complaint, it appeared necessary to make the following critical
remark.

303/97/PD, no exceptions are made to the rule that all
complaints received by the Commission are registered, and a
decision to close a file without taking any action must be
taken within a maximum period of one year from the date
when the complaint was registered. Even if the commitments
which the Commission undertook in the framework of this
own initiative inquiry date from after the lodging of
the
present complaint,
the principles of good administrative
behaviour require that the Commission should have informed
the complainant adequately and as soon as possible about the
in the
outcome of his complaint. Therefore,
present case the Commission did not inform the complainant
about the fact and the reasons why it did not register the
complaint, and even left the complainant during 17 months
without any written information about the outcome of his
complaint, constituted an instance of maladministration.

the fact

that

this aspect of

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

CHANGE OF RECRUITMENT POLICY

Decision
Commission

on

complaint

320/97/PD against

the

European

The complaint

In April 1997, Mr R. complained to the Ombudsman that the
way in which the Commission had dealt with his recruitment
constituted maladministration.

recruitment of

In June 1994, Mr R. had passed a selection procedure
organised by the Commission for establishing a reserve list for
in grades A 7/6,
temporary posts
the
65T/XXIII/93. In September 1996, while he was working in
Peru, Mr R. was called by a Commission official from DG IB,
who wanted to know if he would be interested in a post
concerning Latin America. Mr R. confirmed his interest.

In November 1996, Mr R. received a letter from Directorate
General IX inviting him to an interview in Brussels and to the
necessary medical examinations in case he was offered the
post. The interview and the medical examinations took place
later the same month.

According to the Commission’s own observations
the Ombudsman’s own initiative
framework of

in the
inquiry

On 6 December 1996 Mr R. was informed orally by DG IB
that he was offered the post
in question. By note of 16
December 1996, DG IB asked DG IX to put the recruitment
procedure in motion as soon as possible.

18.10.1999

EN

Official Journal of the European Communities

C 300/133

On 13 January 1997 Mr R. contacted DG IX. He was told that
his recruitment was certain and that he would receive a fax to
that effect within a week. On 16 January 1997, DG IX
informed Mr R. that the recruitment procedure was blocked by
a decision to close the relevant reserve list, and therefore he
could not be recruited. Mr R. was never informed in writing
that the reserve list had been closed.

By letter of 15 March 1997, Mr R. informed the Commission
that he did not find this way of proceeding appropriate.

of

way

In his complaint to the Ombudsman, Mr R. claimed that the
Commission’s
constituted
maladministration. In his view,
it showed faulty procedures,
lack of professional conscience within the Commission’s
services, disrespect
for the citizen as well as bad financial
management, as Mr R.’s return ticket Lima-Brussels had been
paid by the Commission.

proceeding

The inquiry

The Commission’s opinion

The complaint was forwarded to the Commission.
In its
opinion, the Commission stated that on 13 November 1996 it
adopted a new decision concerning its policy towards
temporary agents governed by Article 2a of
the Rules
applicable to other agents (hereinafter:
(cid:145)the new decision(cid:146)).
Detailed consultation with services and staff representation had
preceded the adoption of the new decision, which entered into
force on 1 December 1996. The new rules were much stricter
than the old ones, because they limited the recruitment of
temporary agents in grade A 7/6 to applicants who were on a
reserve list established under an external competition or to
applicants who had passed a selection procedure for specific
professions. In fact, according to the new decision, recruitment
of temporary agents was mainly to take place in the grade A
5/4 so as to enable the institution to dispose of specialised
the Commission administration
knowledge.
selection
decided that all
procedures for temporary posts, should be closed as from 1
December 1996,
to relaunch the policy towards
temporary agents on the basis of the new decision. General
Directors and Heads of Service were informed of the new
decision on 3 December 1996.

reserve lists, established under

Furthermore,

so as

The Commission furthermore stated that it found it regrettable
that Mr R. received contradictory information concerning a
possible job offer, but it considered it necessary to underline
the following points.

1. When Mr R. was asked to come to Brussels,

the new
decision had not yet been adopted and therefore DG IX
could not refuse DG IB’s request to invite Mr R. for an
interview.

2. The fact of being on a reserve list does not confer any
right to a post on the person concerned. In fact only the
Director-General of DG IX is authorised to decide on the
recruitment of temporary agents and only the services of
DG IX are empowered to address job offers in the name of
the Commission. It is established that Mr R. never received
such a letter.

3. Mr R.’s letter of 15 March 1997 received a reply from the

Commission.

The complainant’s observations

In his observations, Mr R. maintained his complaint.
In
particular he emphasised that he considered the Commission’s
way of proceeding contrary to the principle of
legitimate
expectations. He considered that the fact that the Commission
services both in December and in January confirmed orally the
job offer that he was about to have, i.e. after the new decision
came into force, confirmed his view that the Commission’s
procedures were faulty.

Further inquiries

After due consideration of the Commission’s opinion and the
complainant’s observations,
the
Commission to forward to him a copy of the decision of 13
November 1996 and to inform him about
the following
points.

the Ombudsman asked

1. Did the

abovementioned

any
transitional measures for ongoing recruitment procedures?
If the decision did not provide for any such measures,
what were the reasons for that?

decision provide

for

The Commission further stated that it was true that during the
process leading to the adoption of the new decision, DG IB
was in contact with Mr R. and that he had an interview for a
post with DG IB. However, as DG IB’s request for recruiting
Mr R. was not made until 16 December 1996, DG IX until
had to apply the new rules and therefore reject the request.

2. Did the intensive consultation with services involve DG IB?
When was the work on the decision finalised, and when
was the procedure for submitting the new decision for the
Commission’s approval set in motion?

C 300/134

EN

Official Journal of the European Communities

18.10.1999

3. How were the Commission’s services informed about the

new decision after its adoption?

it appeared that

moment when he was successful in the recruitment procedure.
the
Thus,
requirement to organise its procedures so as to deal with the
citizen in a fair and just way.

the Commission had not met

In its reply, the Commission forwarded the decision of 13
November 1996 as well as a note from DG IX addressed to
the
the Directors-General
and Heads
Commission, dated 3 December 1996,
the
decision. Furthermore the Commission forwarded a copy of Mr
R’s curriculum vitae.

of
concerning

services

of

to the Commission,

the decision contained
According
transitional measures as
the abovementioned note of 3
December 1996 stated that existing reserve lists could be kept
open in order to allow for recruitment in conformity with the
new decision.

The Commission further stated that it was not possible to
consider Mr R’s education in political science as a specific
profession under the new decision. Finally the Commission
stated that the procedure leading to the adoption of the new
decision had taken place in all transparency and that all the
Commission services had been regularly informed of
the
ongoing work, e.g. during the weekly meetings of assistants, as
well as by the note of 3 December 1996.

In observations on the second opinion of the Commission, Mr
R. maintained his complaint.

Conclusion

On the basis of the inquiries into this complaint, it appeared
necessary to make the following critical remark.

of

that

good

require

administration

Principles
the
administration deals with citizens in a fair and just way. In this
case it appeared that an applicant, who had successfully
undergone interviews for a job and medical examinations and
had been retained by the service responsible, was not recruited.
The reason for this was that the Commission subjected the
recruitment to a requirement which was not in force at the
moment when the applicant was successful. By proceeding in
this way,
the Commission committed an instance of
maladministration.

this aspect of

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore decided to close the case.

The Decision

RECRUITMENT PROCEDURES

of

good

Principles
the
administration deals with citizens in a fair and just way. It falls
on the Commission to organise its procedures so as to comply
with that requirement.

administration

require

that

it was established that

In this case,
the new decision
concerning recruitment of temporary agents came into force
on 1 December 1996 and that the new decision laid down the
requirement that applicants have a specialised profession.
It
was also established that Mr R. did not fulfil that requirement
and therefore was not recruited.

undergone

Furthermore, it was established that, under the old rules, Mr R.
had
examinations
successfully and had been retained by the service responsible.
It appeared that if the old rules had continued in force after 30
November 1996, Mr R. would have been recruited.

and medical

interviews

Thus, the question was whether it was fair to apply to Mr R’s
case a new requirement which was not in force at the moment
when he was successful
in the recruitment procedure. The
Commission had not indicated any overriding interest in doing
so. The Ombudsman found that it could not be considered fair
to apply to Mr R. a requirement which was not in force at the

Decision
Commission

on

complaint

588/97/PD against

the

European

The complaint

by

organised

In June 1997, Mr S. made a complaint to the Ombudsman
concerning the Commission’s failure to offer him a post after
he had succeeded in a general competition for administrators,
COM/A/720,
the Commission in 1992.
Subsequently, Mr S. applied for jobs at the Commission on
several occasions and had interviews with different heads of
service.
that his qualifications were
generally recognised, he had not yet been offered a job.
According to what he was told at the Commission, the reasons
for this were, firstly, that vacant posts were to be filled with
candidates from the new Member States, i.e. Austria, Finland
and Sweden, which joined the European Union on 1 January
1995, and secondly that there were already many officials of
Belgian nationality.

In spite of

the fact

The complainant considered these reasons, of which he learned
orally in his contacts with the Commission, to be contrary to
fundamental rights as established by the European Convention

18.10.1999

EN

Official Journal of the European Communities

C 300/135

Furthermore,

on Human Rights and to Article 27 of the Staff Regulations
which establishes that no posts can be reserved for a particular
nationality.
it
paradoxical that tasks within the Commission were given to
i.e providers of services,
different kinds of temporary staff,
there was no
auxiliary
recruitment of applicants who had passed a competition.

agents, while

complainant

considered

temporary

and

the

Mr S. asked the Ombudsman to intervene so that his
application for a job would be duly examined.

The inquiry

The Commission’s opinion

In its
The complaint was forwarded to the Commission.
opinion, the Commission stated that the validity of the reserve
list in question was prolonged twice and finally expired on 30
June 1995. It was thus no longer possible to recruit Mr S., as
the reserve list, on which he was placed, was no longer valid.
The Commission furthermore recalled that according to the
case-law of the Court of Justice, the fact that a person is on a
reserve list does not entail an entitlement to a job with the
Community institutions.

i.e.

rights,

discrimination on grounds

the complainant’s allegation about a violation of
As
for
fundamental
of
nationality, the Commission firstly stated that the general rule,
established by Article 27 of the Staff Regulations, is that no
post can be reserved for a particular nationality. On the basis
of reserve lists, the Commission services select those applicants
whose professional profile appears to match the needs of the
service, after which they make the corresponding proposal for
recruitment to the relevant Directorate-General, DG IX. The
received any
Commission stressed that DG IX had not
proposal concerning Mr S. Furthermore,
the Commission
referred to the fact that out of eight Belgians on the reserve list
in question, four had been recruited.

The complainant’s observations

In his observations on the Commission’s comments, Mr S. in
substance maintained his complaint. Furthermore, he raised a
number of new questions such as the average period of
validity of reserve lists, the reasons for the Commission to
decide not to prolong the validity of a reserve list, the cost
involved in organising a competition and the reasons for
which the Commission decided to publish a post, for which he
considered himself qualified, after the expiration of the reserve
list.

In a further letter, Mr S. asked to be informed about the action
undertaken by the Ombudsman with a view to finding a
friendly solution to his complaint, facilitating in due course his
employment with the Commission.

The Decision

Firstly, it should be noted that the Ombudsman did not find it
justified to start inquiries into the new questions raised in the
complainant’s observations as they went beyond the scope of
his original complaint.
It should also be remarked that the
question of finding a friendly solution to a complaint only
arises when the Ombudsman has established an instance of
maladministration.

Thereafter, it should be noted that the Commission was not
entitled to offer the complainant a permanent post, as the
validity of the reserve list had expired, and that the fact of
being on a reserve list does not give candidates a right to
employment with the Community institutions.

Mr S.’s complaint raised in substance the question whether he
was exposed to unlawful discrimination on grounds of
and/or
nationality. The Commission’s
temporary staff did not appear
the
assessment of this question. The examination of the question
fell in two parts; firstly, discrimination as to posts to which the
general rule in Article 27 of the Staff Regulations applied and
secondly discrimination as to posts to which the general rule
did not apply by virtue of Regulation (EC) No 626/95.

external
to be relevant

use

for

of

Secondly, the Commission stated that in the context of the
accession of the three mentioned Member States, the Council
adopted Regulation (EC) No 626/95 to the effect that certain
posts should be reserved for the holders of one of the three
nationalities concerned. This Regulation thus constitutes a
lawful derogatory measure to the general rule that no post is
reserved for a particular nationality.

authorities

the budgetary

Concerning the use of temporary staff, the Commission stated
that
and
temporary posts to the Commission and appropriations to
employ auxiliary agents and service providers. Consequently,
the use of this kind of staff does not affect the possibilities for
recruiting civil servants to permanent posts.

allocate permanent

As concerns the first part, the wording of Article 27 shall be
recalled:

Recruitment shall be directed to securing for the institution the
services of officials of the highest standard of ability, efficiency
and integrity, recruited on the broadest possible geographical basis
from among nationals of Member States of the Communities.

Officials shall be selected without reference to race, creed or sex.

No posts shall be reserved for nationals of any specific Member
State.

C 300/136

EN

Official Journal of the European Communities

18.10.1999

This provision seeks to strike a balance between the need for
recruiting qualified staff and the need that an international
organisation has for ensuring staff from the different States
that have founded the organisation. According to the case-law
of the Court of Justice, the provision implies

the Staff Regulations. As
the Regulation had not been
it
contested, the Commission was bound to apply it. Thus,
appeared that the Commission was fully entitled to reserve
posts to be filled for nationals from one of the three countries.

(cid:145)(cid:133) that when any Community institution recruits, promotes or
assigns its officials to posts, it must be guided on the one hand
of the interests of the service without regard to nationality and on
the other hand must ensure that they are recruited on the widest
possible geographical basis from among nationals of the Member
States of
those
requirements, as the Court declared in particular in its judgment
of 6 May 1969 (Case 17/68, Reinarz, [1969] ECR 61), when,
in those cases where the qualifications of the various candidates
it makes nationality the overriding
are substantially the same,
criterion in order
re-establish a geographical
balance among its staff(cid:146) (1).

the Communities. The

institution reconciles

to maintain or

that

appeared

It
the Commission Directorate-General
responsible for recruitment had never received any proposal
for the complainant’s recruitment and thus, that no proposal
had been turned down on the grounds of his Belgian
nationality. Furthermore, given the fact that four of the eight
Belgians on the reserve list had received employment with the
Commission, it appeared difficult to give credit to the claim
that there was a general bar on recruitment of Belgians. Thus,
it was not established that
the Commission engaged in
unlawful discrimination against Belgian applicants.

of

However, as concerned the oral declarations of Commission
officials to which Mr S. referred and which the Commission
did not contest, it was true that these declarations could give
the impression that the officials concerned were not aware of
their obligations under Article 27 of
the Staff Regulations.
the
administration
good
Principles
administration in its dealings with citizens comply with the
rules that are binding on it. As the declarations to which Mr S.
referred could easily be misunderstood to the effect that the
their obligations under
officials concerned did not respect
Article 27 of the Staff Regulations, the Ombudsman addressed
a critical remark to the Commission to the effect that it should
ensure that, in dealing with applicants, its staff respect Article
27 of the Staff Regulations.

require

that

As concerns the posts reserved for nationals of Austria, Finland
or Sweden, Article 1 of Regulation (EC) No 626/95 provides:

(cid:145)Notwithstanding (cid:133) the third paragraph of Article 27 (cid:133) of the
Staff Regulations of Officials of
the European Communities,
provision may be made until 31 December 1999 for vacant posts
to be filled by Austrian, Finnish and Swedish nationals up to the
limit set
in the context of budgetary discussions within the
institution responsible(cid:146).

Thus, as concerned both the complainant’s grievances,
it
appeared that the Commission had not engaged in unlawful
discrimination. The provisions of the European Convention on
Human Rights did not appear to have any bearing on this
result.

On the basis of the European Ombudsman’s inquiries into this
complaint, it appeared necessary to make the following critical
remark.

in its dealings with
The Commission shall ensure that,
applicants, its staff is aware of its obligations under Article 27
of the Staff Regulations.

this aspect of

the case concerned procedures
Given that
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

UNDUE DELAY IN REPLYING TO CORRESPONDENCE

Decision
Commission

on

complaint 1087/97/OV against

the

European

The complaint

In November 1997, Mr G., director of a non-governmental
organisation offering medical care to seriously injured children
from war and crisis areas, complained to the Ombudsman
about the rejection of his application for funding by DG VIII
(Development) of the Commission. The project concerned was
intended to integrate homeless children into selected new
families, given that orphanages would not give them the family
structure necessary for
their emotional development. The
project had been conceived by AAD (Angolan action for
development, Luanda) and approved by the relevant Angolan
Ministry. However, given the absence of adequate financial
resources, on 30 August 1996 the complainant made an
application to DG VIII
for funding the project under the
budget heading B7-7 0 2 0 (Promotion of human rights and
democracy in the developing countries).

It appeared clearly that this Regulation established a derogation
from the general rule in the third paragraph of Article 27 of

(1) Judgment of 30 June 1983 in Case 85/82, Schloh v Council,

[1983] ECR 2105, see paragraph 26.

On 3 December 1996, the complainant was informed that his
application had been rejected because of the limited resources
of budget line B7-7 0 2 0 and because his project did not fit
exactly into the criteria of the budget line. DG VIII equally
informed the complainant that it doubted that the new families
which already faced enormous daily problems could be the
ideal home for these vulnerable children.

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for

the

the

four

explanations

complainant wrote

Finding the rejection decision unclear and not sufficiently
times between
motivated,
December 1996 and September 1997 to the Commission
asking for more
rejection of his
application, in order to eventually reformulate the concept of
the project. He received no reply until November 1997 when,
further to a telephone request from the Ombudsman’s office,
the Commission answered his correspondence. However, the
complainant was still unsatisfied with the reasoning of the
rejection decision, which he considered contradictory, not
objective and not clear enough. He therefore complained to
the Ombudsman alleging that the Commission had failed:

project did not fulfil those criteria. Therefore the complainant
asked the Ombudsman to continue his investigation.

As regards the failure to reply, the complainant observed that
the Commission’s reply of 8 April 1997 was in fact an answer
to the letter of 6 March 1997 which was already a reminder of
the letter of 27 December 1996. Therefore the observation of
the Commission that it replied within three weeks was not
correct.

(i)

to give him adequate reasons for the rejection decision,
and

Further inquiries

(ii) to reply during several months to his correspondence.

The inquiry

The Commission’s opinion

resources

the rule of

The complaint was forwarded to the Commission. As regards
the Commission
the reasoning of
the rejection decision,
observed that, given the limited financial
(ECU
17 million for use in around 100 countries), a strict selection
procedure was necessary, and that the projects selected were
those which were likely to have the maximum impact on
strengthening democracy,
for
human rights in the country. The Commission further stated
that
the same
procedure and in the same objective manner as the others. The
Commission also considered that the reasons given for the
rejection decision were not contradictory, given that it first
informed the complainant that the project did not fulfil the
selection criteria for the budget heading and later informed
the main obstacle was that only projects which
him that
contributed to the democratic development of
the country
could be funded.

the present project was dealt with under

law and respect

With regard to the failure to reply to the complainant’s
correspondence asking for
the Commission
stated that the periods for answering the complainant (three
weeks for the letter of 8 April 1997 and eight weeks for the
letter of 12 November 1997) were reasonable considering the
workload and the human resources available.

explanations,

complainant’s observations,

After careful consideration of the Commission’s opinion and
further
the
inquiries were necessary, more particularly in order
to
the funding under
determine which selection criteria for
budget heading B7-7 0 2 0 had not been fulfilled by the
complainant.

appeared that

it

the complainant had been
The Commission observed that
informed of
the selection criteria (impact on strengthening
democracy, the rule of law and respect for human rights in the
country), having received the general conditions governing the
budget heading B7-7 0 2 0 and having completed the standard
form attached to them.

The Commission stated however that,
number of
only 20 % of which can be met),
detailed explanation for each refusal.

in view of the large
funding applications received (over 300 a year,
it was difficult to give a

In the present case, the Commission stated that the project was
primarily socially and medically oriented (psychological care of
children), and therefore not covered by the direct priorities of
the budget line. The rejection decision was thus rather based
on the nature of the project.

complainant

admitted having

The
received the general
conditions governing the budget heading. However, he
observed that those conditions were very extensive and subject
to interpretation. He also stated that he was still missing a
clear argumentation of why his project did not fit exactly into
the selection criteria.

The Decision

The complainant’s observations

1.

The alleged failure to state reasons for the rejection
decision

The complainant observed that the Commission ignored the
the project by the Angolan Government. As
approval of
regards more particularly the reasoning of
the rejection
decision, the complainant stated that the Commission never
the exact selection criteria and why his
informed him of

1.1. The complainant alleged that the decision of 3 December
1996 by which the Commission rejected his funding
application was unclear and failed to state sufficient
reasons. The Commission observed that it had informed

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contributed

the complainant about the selection criteria and that only
democratic
projects which
development of
In its
additional comments, the Commission stated that, in view
of the large number of applications,
it was difficult to
give a detailed explanation for each refusal.

the country could be funded.

the

to

1.2. According to the case-law of the Court of Justice, the
reasoning followed by the authority which adopted the
measure must be disclosed in a clear and unequivocal
fashion so as, on the one hand, to make the persons
concerned aware of
the reasons for the measure and
thereby enable them to defend their rights, and, on the
other,
to exercise its supervisory
jurisdiction (1).

to enable the Court

1.3. By its letter of 3 December 1996,

the Commission

rejected the application in the following terms:

(cid:145)((cid:133)) After having examined your abovementioned proposal
together with our Delegation in Angola and with the
to
geographical
inform you that the Commission is not able to take your
project into consideration.

for Angola,

responsible

service

regret

I

To fulfil with the criteria of our budget line, only the projects
the
which could best
country have been selected ((cid:133))(cid:146).

foster democratic development of

1.4. The Ombudsman first noted that,

it

then

regard,

appeared

in his additional
observations, the complainant admitted that he had been
informed about the selection criteria (projects with the
maximum impact on strengthening democracy, the rule
of law and respect for human rights in the country). In
above
this
correspondence
provide
sufficient reasons for the rejection of the complainant’s
application, because he was informed that his project did
not fulfil those selection criteria and that only projects
which could best promote the democratic development of
the
the
complainant’s project
and
medical aid, the Commission’s explanation appeared to be
reasonable.

concerned mainly

the Commission

selected. Given

that
social

from the

country

been

that

had

did

2.

The alleged undue delay in replying to correspondence

In fact, the limited resources of budget line B7-7 0 2 0 in
relation with the numerous countries and fields of activities
covered, impose the setting up of priorities, in order to ensure
a geographic and thematic balance in the allocation of
subventions. Your project, although centred on a very
opportune and important problem, does not fit exactly in the
criteria of budget line B7-2 0 7 0.

2.1. The complainant alleged that the Commission failed to
reply to four letters dated 27 December 1996, 6 March, 3
April and 3 September 1997, in which he asked for more
explanations for the rejection of his application. The
Commission observed that
replied to those letters
respectively within three weeks (fax of 8 April 1997) and
eight weeks (reply of 12 November 1997), which it
considered as reasonable periods, given the workload and
the human resources available.

it

Moreover, as far as the content of this project is concerned,
face
we doubt
enormous daily problems could be the ideal home for these
vulnerable children ((cid:133))(cid:146).

(cid:147)new families(cid:148) which already

that

the

In the letter of 12 November 1997,
replied in the following terms:

the Commission

the
(cid:145)((cid:133)) As already mentioned, I regret
Commission is not able to take the funding of your project
into consideration.

to confirm that

First of all, I would like to inform you that the number of
project proposals received here are such that a strict selection
has to be operated in order to ensure a geographic and
thematic balance in the allocation of our limited financial
resources (ECU 17 million/year for about 100 countries).

Your project proposal,
together with the others we have
received, has been examined by our geographical services, in
Brussels and in Luanda,
the
priorities to be addressed by the EC in the present Angolan
conditions.

in the global

framework of

2.2. The principles of good administrative behaviour require
that letters from complainants to the Commission receive
a reply within a reasonable time.

the names of

the Commission representatives

2.3. The Ombudsman notes that the fax from DG VIII of 8
April 1997 was a reply to the complainant’s letter asking
for
in
information as
Angola, and did not provide additional
regards the reasoning of the rejection decision.
It was
only on 12 November 1997, after a telephone request by
that DG VIII replied to the
the Ombudsman’s office,
complainant’s request
information. This
cannot be considered as a reasonable time period for
replying to correspondence. Therefore, the fact that the
Commission only replied on 12 November 1997 to the
complainant’s correspondence starting from December
1996 constitutes an instance of maladministration.

for additional

Conclusion

(1) Case T-166/94, Koyo Seiko v Council

[1995] ECR II-2129,

paragraph 103.

On the basis of the Ombudsman’s inquiries into this aspect of
the complaint,
it appeared necessary to make the following
critical remark.

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The principles of good administrative behaviour require that
letters from complainants to the Commission administration
receive a reply within a reasonable time. Therefore, the fact
that the Commission only replied on 12 November 1997 to
the complainant’s correspondence starting from December
1996 constitutes an instance of maladministration.

(cid:151) a maximum sum of ECU 120 where the distance is
superior or equal to 800 km and inferior to 1 500 km,

(cid:151) a maximum sum of ECU 180 where the distance is

superior or equal to 1 500 km(cid:146).

this aspect of

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

3.5.4. THE COURT OF AUDITORS

REIMBURSEMENT OF COSTS FOR APPLICANTS IN A
COMPETITION

Decision on complaint 928/7.10.96/LL-JP/FIN/PD against
Court of Auditors

the

The complaint

In October 1996, Mr L. and Mr P. complained to the
Ombudsman, alleging that the Court of Auditors had treated
them in an unjust and discriminatory way by offering them a
very limited reimbursement of the travel expenses they would
have incurred in participating in a competition organised by
the Court of Auditors. The complainants also forwarded a
copy of their complaint directly to the Court of Auditors.

that

time they were both agents at

The competition in question was internal and interinstitutional,
so that civil servants and agents in service in all Community
institutions could apply. The complainants applied for this
competition. At
the
Commission’s representation in Finland. By letter of 9 August
1996 from the Court of Auditors the complainants were
informed that
they were admitted to the written tests.
According to the letter, these would take place on 17 October
1996 in Brussels. The complainants were asked to be present
at 8.30 a.m. Annexed to the letter was a sheet setting out the
expenses.
rules
applicable
there would be no
According to Article 2 of
reimbursement
applicant’s
residence and the place of the competition was inferior or
equal to 300 km. Article 3 provided that if the distance was
superior to 300 km, the applicants would be entitled to a sum
calculated on the basis of kilometres as follows:

reimbursement of
these rules,
the distance between the

travel

for

if

(cid:145)(cid:151) a maximum sum of ECU 60 where the distance is superior

to 300 km and inferior to 800 km,

The complainants considered that the level of reimbursement
In
these rules would imply for them was insufficient.
that
order to attend the tests, which took place on a Thursday, they
would have had to take an ordinary return air ticket from
1 212.
Helsinki-Brussels,
costing
Accommodation expenses
at
to the
approximately ECU 63 would bring
complainants of participation in the written tests to ECU 1 275,
while they would only be entitled to a reimbursement of
ECU 180. Given that the amount of costs that they would
have to bear themselves amounted to more than one month of
net salary, the complainants refrained from taking part in the
competition.

approximately
for one night

in Brussels

ECU

cost

the

to the Ombudsman the complainants
In their complaint
claimed that the rules concerning the reimbursement of travel
costs had in this case privileged agents who were working in
Luxemburg and Brussels, contrary to the principle of equal
treatment. The complainants also considered the effect of the
rules to be contrary to the principle enshrined in Article 27 of
the Staff Regulations according to which

(cid:145)Recruitment shall be directed to securing for the institution the
services of officials of the highest standard of ability, efficiency
and integrity, recruited on the broadest possible geographical basis
from among nationals of Member States of the Communities(cid:146).

The inquiry

The opinion of the Court of Auditors

The complaint was forwarded to the Court of Auditors. In its
opinion, the Court stated that it had limited itself to applying
the rules laid down in conclusion 211/95, adopted by the
College of Heads of Administration. According to its wording,
the conclusion is only applicable to general competitions
organised by the institutions but by an internal decision of the
Court of Auditors, the same rules were made applicable to
competitions as the one in question.

Further inquiries

The Ombudsman requested the Court of Auditors to submit
the documents underlying the adoption of conclusion 211/95.
It appeared from the documents received that the conclusion
aimed at reducing the costs incurred by the institutions in
and
reimbursing
the
travel
it also appeared that fears
reimbursement system. However,

simplifying

expenses

at

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18.10.1999

had been voiced to the effect that the conclusion did not take
the heavy financial burden it would put on
into account
applicants coming from far away and therefore had a doubtful
relation to the principle that applicants should have equal
opportunities for participating in competitions. These fears
were dealt with by statements to the effect that the number of
places of competition would be increased and decentralised.

Against this background, the Ombudsman addressed a letter to
the Court of Auditors. In his letter, the Ombudsman noted
that the tests in question had not been organised on another
weekday, for example a Saturday, so as to enable applicants to
benefit from cheaper air fares. The Ombudsman also noted
for
that where there was only one place of competition,
instance Brussels,
to be borne by an
the average costs
applicant (after deduction of travel reimbursement), travelling
by train, second class and coming:

(cid:151) from Luxemburg, would be ECU 43,

(cid:151) from Strasbourg, would be ECU 29, and

Regulations, the administration shall still comply with the
rules and principles which are binding on it.

2. The Ombudsman also took notice of

the
that
the
committee stated that, when adopting the rules,
the places of
institutions had
competition in order
for
applicants. The Ombudsman observed that the Court of
Auditors had not acted in conformity with that agreement.

to shorten travel distances

to multiply

the fact

agreed

3. The Court of Auditors sought to justify its departure from
that agreement by referring to the disproportionate costs
of also holding tests in Finland. The Ombudsman observed
that the organisation of the competition lay with the Court
of Auditors which could have exercised its powers so as to
reduce costs
itself and applicants. There was no
evidence to the effect that the competition could not have
been organised on another weekday nor to the effect that
providing for another place of competition, for instance by
asking the Commission or the Parliament Representations
for assistance, would have entailed disproportionate costs.

for

(cid:151) from Athens, would be ECU 330.

4.

Noting that it appeared that applicants from distant locations
had to bear disproportionate costs, the Ombudsman asked the
Court of Auditors whether it would envisage taking measures
so that a similar situation would not arise again.

in the written tests

It was uncontested that the application of the rules in this
case resulted in excessive costs for a limited number of
potential participants
the
competition in question. Principles of good administration
require that the administration proceed in a fair and just
way towards all applicants in a competition. Organising a
competition in a way which entails excessive costs for a
limited number of applicants cannot be deemed to meet
that requirement.

of

the

institutions

After having submitted this question to the committee for the
preparation of statutory questions, a body depending on the
the Court of Auditors
College of Heads of Administration,
informed the Ombudsman that
in the
committee had pointed out that the reimbursement of travel
expenses was in itself a financial benefit for the applicants
which was not provided for by the Staff Regulations and that
the institutions, when adopting the conclusion, had agreed to
multiply the places of competition in order
to shorten
distances for applicants. As regards this last aspect, the Court
of Auditors added that its decision only to organise written
tests in Luxemburg and in Brussels was reasonable given the
circumstances and the interest of the service. According to the
Court, organising written tests in other places such as in places
involved
representations would
Community
of
disproportionate costs.

have

The Decision

1. The Ombudsman took notice of

the
institutions assembled in the committee for the preparation
of statutory questions stated that reimbursement of travel
costs was a financial contribution, not provided by the
Staff Regulations. The Ombudsman observed that in case
the administration takes actions not foreseen by the Staff

that

fact

the

Conclusion

On the basis of the European Ombudsman’s inquiries into this
complaint, it appears necessary to make the following critical
remark.

Principles of good administration require the administration to
proceed in a fair and just way towards all applicants under
competitions. In this case it appears that the Court of Auditors
organised a competition in such a way that
it entailed
excessive costs for two applicants from one Member State
(return air ticket of approximately ECU 1 212). Therefore, by
organising the competition in such a way,
the Court of
Auditors committed an instance of maladministration. It fell to
the Court of Auditors to organise competitions so as to meet
the requirement,
for instance by organising more places of
competition in order to shorten travel distances.

this aspect of

Given that
the case concerned procedures
relating to specific events in the past, it was not appropriate to
pursue a friendly settlement of the matter. The Ombudsman
therefore closed the case.

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C 300/141

3.6. DRAFT RECOMMENDATIONS BY THE OMBUDSMAN

The complainant’s observations

3.6.1. THE COUNCIL OF THE EUROPEAN UNION

AN UP-TO-DATE LIST OF MEASURES ADOPTED IN THE FIELD OF
JUSTICE AND HOME AFFAIRS

recommendation in complaint 1055/25.11.96/Statewatch/

Draft
UK/IJH against the Council

The complaint

In November 1996, Mr B. complained to the Ombudsman that
the Council does not maintain and make available to the
public an up-to-date list of the measures which it adopts in the
field of Justice and Home Affairs (1). The complainant claimed
that in the interests of informing citizens and conforming to
democratic standards the Council should maintain such a list
and make it available on request.

The inquiry

The Council’s opinion

The complaint was forwarded to the Council. In its opinion,
the Council referred to the considerable efforts that it has
made to improve the transparency of its proceedings in this
context. In particular:

a summary of Council decisions taken under Title VI of the
Treaty on European Union is produced once a year and has
been published as an Annex to the annual Review of the
Council’s Work from the 1995 edition onwards;

decisions taken by the Council both under Title VI and in
other areas are announced in press releases issued by the
General Secretariat including, in principle, acts adopted by the
written procedure. Decisions formally taken by compositions
of the Council which do not correspond to the subject matter
concerned appear in a separate heading which can be easily
identified in press releases;

a computer search of the content of Council press releases can
be made using the (cid:145)Rapid(cid:146) base which is accessible via the
Internet using the (cid:145)Europa(cid:146) server;

the General Secretariat of the Council is working on setting up
its own databases which will also be accessible via the Internet.
Among other things they will present Council Decisions in the
areas both of Justice and Home Affairs and common foreign
and security policy (2).

the

complainant

In his observations,
acknowledged the
Council’s efforts to provide more information. However, he
considered that it is a sign of inefficiency if the Council does
not itself have an up-to-date list of measures adopted in each
area. He also repeated his claim that it is unacceptable that
citizens cannot obtain on request an up-to-date list of the
measures which have been adopted.

The Ombudsman’s attempt to achieve a friendly solution

After careful consideration of the complaint, the opinion and
the observations, the Ombudsman wrote to the Council on 15
December 1997 in order to seek a friendly solution to the
complaint, in accordance with Article 3(5) of the Statute of the
Ombudsman.

He informed the Council that he considered that failure to
maintain an up-to-date list of measures adopted by the Council
could constitute an instance of maladministration because:

(i)

(ii)

a basic principle of good administrative behaviour is that
a public authority should maintain adequate records. Such
records help ensure the consistency and continuity of
the Treaty on
activities, mentioned in Article C of
could make it
Inadequate records
European Union.
difficult
to locate relevant documents accurately and
quickly;

the Council publishes a summary of decisions taken
under Title VI of the Treaty on European Union once a
year. For the Council’s secretariat to produce such a list
only at the end of each year could lead to errors and
omissions. A more effective administrative technique
would be for the secretariat to maintain an up-to-date list
during the year;

(iii)

there appears to be no legal reason for the present
position. The Council could maintain a list by virtue of its
power of internal organisation, which authorises it to take
appropriate measures
internal
in order
operation in conformity with the interests of good
administration (3).

to ensure its

in the

field of

The Ombudsman suggested that the Council could respond by
agreeing to maintain an up-to-date list of measures which it
adopts
Justice and Home Affairs. The
Ombudsman also stated that making such a list available to
the public would enhance transparency and strengthen the
democratic nature of the Council and the public’s confidence
in its administration, as foreseen by Declaration 17 attached to
the Treaty on European Union.

(1) Title VI of the Treaty on European Union; the (cid:145)third pillar(cid:146).
(2) Title V of the Treaty on European Union; the (cid:145)second pillar(cid:146).

(3) See,

for example Case C-58/94, Netherlands v Council, [1996]

ECR-I 2169.

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The Council’s response

By letter dated 26 February 1998 the Council replied to the
Ombudsman as follows.

(cid:145)Thank you for your letter of 15 December 1997 concerning the
complaint by Mr B. and his wish that the Council maintain an
up-to-date list of measures agreed in the field of
Justice and
Home Affairs and make this list accessible to the public.

I am pleased to be able to confirm that the General Secretariat
does indeed maintain a list of all such measures. The question of
how and in what form this information might be made available
to the public is currently being considered.

list of measures in the Council’s annual
review was not
to meet democratic standards, which require that
sufficient
citizens should be able to obtain, on request, an up-to-date list
of the measures at any point during the year.

In the light of the above, it appeared that the Ombudsman’s
search for a friendly solution to the complaint had been
unsuccessful.

Draft recommendation

After considering the Council’s response to the points made in
his letter of 15 December 1997, the Ombudsman reached the
following conclusions.

Moreover, the Justice and Home Affairs Council on 19 March
1998 will look at the overall issue of transparency in the third
pillar(cid:146).

(i)

The Council has
its General Secretariat
maintains a list of all measures approved in the field of
Justice and Home Affairs.

stated that

By letter dated 13 July 1998, the Council provided additional
information, including the following points.

(i) The General Secretariat is to make a database on Council
activities in the JHA field accessible through the Internet.
This will provide, among other things, lists of instruments
adopted by date and subject and the possibility of access to
the full texts in the official languages.

(ii) As regards publication of the list of measures taken by the
Council in the JHA field, in addition to the facilities offered
by the database, such information is contained in the
annual review of the Council’s work.

The Council’s letter also contained the conclusions adopted by
the JHA Council at its meeting on 19 March 1998 concerning
transparency in the JHA field and information on the
follow-up to the conclusions.

The complainant’s response

The Council’s letters of 26 February 1998 and 13 July 1998
were forwarded to the complainant, who replied by letters
dated 9 March 1998 and 18 September 1998. The
complainant welcomed
concerning
transparency in the JHA field, which were mentioned by the
Council in its letter of 13 July 1998. However, he maintained
his complaint, pointing out
the list of
instruments mentioned by the Council was not the same as a
list of measures and that his complaint related to the latter.
Furthermore, the complainant stated that the publication of a

new initiatives

in particular,

that

the

(ii) Article 1(2) of Council Decision 93/731/EC of 20
December
Council
public
documents (1), defines (cid:145)Council document(cid:146) as (cid:145)any written
text, whatever its medium, containing existing data and
held by the Council(cid:146).

access

1993

on

to

(iii) The list of all measures approved in the field of Justice
and Home Affairs, which the Council has
stated is
maintained by its General Secretariat, appears to be a
(cid:145)Council document(cid:146) within the meaning of Article 1(2) of
Decision 93/731/EC.

In accordance with Article 3(6) of
the
Ombudsman, the Ombudsman therefore makes the following
draft recommendation to the Council.

the Statute of

The Council should make available to the public on request, in
accordance with
of Council Decision
provisions
93/731/EC, the list of all measures approved in the field of
Justice and Home Affairs which is maintained by its General
Secretariat.

the

In accordance with Article 3(6) of

The Council and the complainant will be informed of this draft
recommendation.
the
Statute of the Ombudsman, the Council shall send a detailed
opinion before 31 January 1999. The detailed opinion could
draft
of
consist
recommendation and a description of how it has been
implemented.

the Ombudsman’s

acceptance

of

(1) OJ L 340, 31.12.1993, p. 43.

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C 300/143

3.7. OWN INITIATIVE INQUIRIES BY THE OMBUDSMAN

The inquiry

3.7.1. THE EUROPEAN COMMISSION

AGE LIMITS FOR RECRUITMENT

The Commission’s opinion

The opinion of the Commission can be summarised as follows.

Decision in own initiative inquiry 626/97/BB

The Commission decided as a matter of policy to abandon the
use of age limits in the notices of competitions.

The issues

In July 1997, the Ombudsman began an own-initiative inquiry
into the use of age limits for recruitment to the Community
institutions,
following a significant number of complaints
which mainly related to the exclusion of candidates from
specific
various Community
institutions.

competitions organised

by

of

are

the

and

citizen

the claims put

851/3.9.96/ALC/ES/PD,

In substance,
forward in the complaints
included the following: age limits are against the fundamental
rights
discriminatory
(1042/25.11.96/SKTOL/FIN/BB,
479/11.3.96/MCHP/ES/KT,
300/97/BB,
850/3.9.96/JIA/FR/KT,
725/97/BB, 277/98/IP). They breach the principle of equality
between candidates (529/98/XD). They do not concern those
who have already been employed by the institutions for one
year (325/8.1.96/ML/L/PD, 529/98/XD). Age limits are not
applied
posts
(479/11.3.96/MCHP/ES/KT). The legal basis for setting the
current
clear
(695/5.7.96/RW/UK/KT). The date of birth is a non-objective
criterion laid down in the competition notices and is in
contradiction with objective criteria such as professional
experience
examination (529/98/XD). Some
complainants referred to the fact that in certain Member States
age limits are prohibited by constitutional or
legislative
provisions.

and medical

candidates

candidates

political

limits

not

age

for

for

to

is

The research note on the application of age limits in the
Member States of the European Communities

The Ombudsman considered that research was needed in order
to be able to fully evaluate the current situation in the various
Member States. For that purpose, the Ombudsman contacted
the Court of Justice, which agreed as a measure of cooperation
to allow its Research and Documentation Division to prepare a
research note for the Ombudsman.

research note indicated that

This
there is no common
constitutional or legal principle in the Member States either
allowing or prohibiting age limits. An age limit is imposed in
the public sector in more than half of the Member States.
However, this age limit is, in general, higher than 35 years and
the reasons for use differ from one Member State to another.
it was noted that there is a tendency in some
Furthermore,
Member States
treating age limits as unjustified
discrimination and therefore abandoning their use.

towards

The Commission recognised the need to implement
this
principle with the common agreement of the institutions. For
this reason, it decided as a temporary measure to raise the age
limit to 45 years for forthcoming competitions for the starting
grades,
in line with the decision taken by the European
Parliament on 20 October 1997.

The Commission stated that the necessary delay in obtaining
common agreement between the institutions would allow the
appreciation
into
consideration for the administration of careers.

possible measures

taken

be

to

of

The Council’s opinion

The opinion of the Council can be summarised as follows.

appropriate means

The institutions not only enjoy discretion in their choice of the
most
personnel
requirements, but also broad discretion in drawing up the
requirements of a competition.

of meeting

their

Age does not appear among the criteria on the basis of which
any distinction made at the time of recruitment is prohibited
by the Staff Regulations.

Under Article 1(g) of Annex III to the Staff Regulations, one of
the conditions which may, where appropriate, be legitimately
determined by the appointing authority is an age limit.

It remains to be seen whether the Staff Regulations comply in
this respect with the general principles of Community law,
particularly with respect for fundamental rights guaranteed by
the European Convention for the Protection of Human Rights
and Fundamental Freedoms, signed in Rome on 4 November
1950 and as they result
traditions
common to the Member States, as general principles of
Community law.

from the constitutional

The Council noted that the Treaty of Amsterdam has not yet
entered into force.

At the beginning of the 1990s, the question of whether age
should play any part as a selection criterion was examined.
After noting the undesirable consequences for the institution
of abolishing all age limits, such as successful candidates

C 300/144

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Official Journal of the European Communities

18.10.1999

reaching retirement age, the age limit was set at 50 for a
whole series of competitions.

the

joint organisation of
for
After 1995, arrangements
competitions were made and harmonised conditions of access
thereto, which included setting an age limit of 35 for
candidates for posts at starting grades, taking into account the
problems of unemployment of young people living in the
European Union.

As regards the most recent competitions concerning the new
Member States, the age limits were set at 55 and 45 to take
account of the experience required for such posts.

has made a policy decision in principle to abolish the age
limits, the intermediate solution of raising the age limits to 45
years is in contradiction with this principle, and therefore
unacceptable.

One complainant stated that he was not satisfied with the
position of the Council. According to the complainant, Article
27 of the Staff Regulations provides in fact a legitimate basis
for age discrimination. The complainant claimed that
the
Council imposed age limits arbitrarily and that this should be
stopped. He hoped that the Ombudsman would not close his
investigation until the institutions had changed their policies
relating to this matter and until all age limits had been
abolished.

Recently launched notices of competition provide for the
possibility of extending the age limit for a maximum of six
years in certain cases.

1. Age limits and human rights

The Decision

Rules governing age limits are not laid down automatically,
but vary according to the nature of the department’s needs, in
accordance with the requirements of Article 27 of the Staff
Regulations, and allow a distinction to be made between
candidates to take account of their respective situations.

the Council considers that

The General Secretariat of
the
application of age limits on the basis of the posts to be filled
by successful candidates of a competition, as provided by the
Staff Regulations, particularly Article 1(g) of Annex III,
together with the possibility of an extension to take account of
specific situations,
is not a (cid:145)discriminatory(cid:146) measure in the
sense given to this concept by the European Court of Human
Rights and the Court of Justice.

information,

the General Secretariat added that

For
currently in the process of discussing a proposal
to the Staff Regulations
amendment
treatment (1).

it
is
for an
in respect of equal

Complainants’ observations

the Commission’s opinion to seven
The Ombudsman sent
complainants and the Council’s opinion to one complainant
for their observations. He received observations from three
complainants. Two of them claimed that since the Commission
has now acknowledged that the use of age limit is wrong and

(1) Amended proposal for a Council Regulation (Euratom, ECSC, EC)
amending the Staff Regulations of Officials and the Conditions of
Employment of Other Servants of the European Communities in
respect of equal treatment, COM(96) 77 final, 4 March 1996.

1.1. Article F(2) of the Treaty on European Union provides

that:

(cid:145)The Union shall respect fundamental rights, as guaranteed
by the European Convention for the Protection of Human
Rights and Fundamental Freedoms signed in Rome on 4
November 1950 and as they result from the constitutional
common to the Member States, as general
traditions
principles of Community law(cid:146).

1.2. As

regards

the human rights provisions on non-
discrimination, Article 14 of the European Convention
on Human Rights provides as follows:

(cid:145)The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status(cid:146).

the Convention and the Protocols.

Article 14 complements the other substantive provisions
of
It has no
independent existence, since it has effect solely in relation
to (cid:145)the enjoyment of the rights and freedoms(cid:146) safeguarded
by those provisions.

treatment

the European Court of
According to the case-law of
Human Rights concerning Article 14 of the Convention, a
difference of
(cid:145)has no
objective and reasonable justification(cid:146), that is if it does not
pursue a (cid:145)legitimate aim(cid:146) or if there is not a (cid:145)reasonable
relationship of proportionality between the means
employed and the aim sought to be realised(cid:146) (2).

is discriminatory if

it

(2) Case of Gaygusuz v Austria (39/1995/545/631) judgment of 16

September 1996.

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C 300/145

The prohibition of discrimination in the United Nations
International Covenant on Civil and Political Rights (1) is
stated in Article 2 of the Covenant:

(cid:145)Each State party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognised in the
present Covenant, without distinction of any kind, such as
religion, political or other
race,
opinion, national or social origin, property, birth or other
status(cid:146).

language,

colour,

sex,

1.3. Although neither Article 14 of the European Convention
on Human Rights nor Article 2 of the Covenant of Civil
and Political Rights explicitly prohibit discrimination on
the grounds of age, the scope of application of both the
abovementioned
extremely
broad. It cannot be excluded that this scope of application
could also cover discrimination on the grounds of age in
cases where there exists no objective and reasonable
justification for such discrimination.

discrimination clauses

is

1.4. In July 1997, the European Union took steps to combat
age discrimination. The Treaty of Amsterdam introduced
a new Article 13 in the EC Treaty,
in which age is
mentioned as one form of discrimination. This Article
reads as follows:

(cid:145)Without prejudice to the other provisions of this Treaty and
the powers conferred by it on the
within the limits of
Community, the Council, acting unanimously on a proposal
from the Commission and after consulting the European
Parliament, may
combat
discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation(cid:146).

appropriate

action

take

to

1.5. Although the Treaty of Amsterdam has not yet entered
the new
into force, by planning the introduction of
Article,
the European Union has recognised age as a
possible cause of unjustified discrimination. Moreover, as
the new Article 13 on non-discrimination affirms,
the
Community institutions should not hesitate actively to
enhance the respect of human rights provisions on their
own-initiative.

1.6. The Court of Justice of the European Communities has
recognised that Community recruitment must respect the
principle of equality. It must not discriminate by treating
candidates in similar situations differently, if there are no
justifiable grounds for doing so.

(1) International Covenant on Civil and Political Rights, adopted on 16

December 1966.

1.7. According to the Court’s consistent case-law, the general
principle of equality is one of the fundamental principles
of the law of the Community civil service. That principle
requires that comparable situations shall not be treated
differently unless
such differentiation is objectively
justified (2).

2. Application of age limits in the Member States

The Ombudsman’s inquiries revealed that, currently, there
is no common constitutional or legal principle in the
Member States either allowing or prohibiting age limits.
An age limit is imposed on the public sector in more
than half of the Member States. However, this age limit is,
in general, higher than 35 years. Furthermore, a tendency
towards abandoning age
limits as discriminatory is
apparent in some Member States.

3. Application of age limits within the Community

institutions

3.1. All Community institutions apply age limits

the
admission of candidates to competitions. This possibility
is mentioned in Article 1(g), of Annex III to the Staff
Regulations which provides that the notice of competition
must specify:

for

(cid:145)where appropriate, the age limit and any extension of the
age limit in the case of servants of the Communities who
have completed not less than one year’s service(cid:146).

3.2. Article 27(2), of the Staff Regulations provides that:

(cid:145)Officials shall be selected without reference to race, creed or
sex(cid:146).

3.3. The Ombudsman understood that, based on Article 1(g)
the Appointing
in notices of

to the Staff Regulations,
limit

of Annex III
Authority may specify an age
competition.

3.4. However, the Ombudsman found that taking into account
the principle that decisions must be reasoned and the
provision laid down in Article 27 of the Staff Regulations,
the wording of Article 1(g), of Annex III of the Staff
Regulations, in particular, the phrase (cid:145)where appropriate(cid:146)
and the Court’s consistent case-law on the general
principle of equality, these seemed to suggest that age
limits cannot be imposed arbitrarily and that there should
be reasoning to support why a specific age limit
is
considered appropriate for a particular competition.

(2) Judgment of 14 July 1983 in Joined Cases 152, 158, 162, 166,
170, 173, 175, 177 to 179, 182 and 186/81 W. Ferrario and
Others v Commission of the European Communities [1983] ECR
2357, p. 2367.

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3.5. The developed practice indicates that

the Appointing
Authorities have applied various age limits differing from
one institution to another. Article 31 of
the Staff
Regulations lays down a principle according to which
candidates are to be recruited at
the basic grade.
Therefore, in general, an age limit of under 35 years has
been set on the grounds that the basic grades are only
suitable for young graduates who, in time, can establish
careers as European civil servants.

3.6. According to the Commission, other age limits have been
set, for example, for heads of unit an age limit of 55
years, for principal translators a limit of 50 years and for
translators a limit of 40 years with the possibility to raise
them in certain cases (1). The Council is setting age limits
at 35, 45, 50 and 55 with the possibility to raise them
for a maximum of six years (2).

4. Grounds for the setting of age limits according to the

Community institutions

4.1. The grounds for setting age limits have varied according
to the different Community institutions. The institutions
presented to the Ombudsman a number of different
grounds in connection with the individual complaints on
the use of age limits. The grounds put forward can be
summarised as follows:

(cid:151) there is a need for a balanced management of human
resources and, in particular, the career structure,

(cid:151) the system is not suited for the recruitment of older
persons with a wealth of experience gained through a
long career,

(cid:151) the problems for new officials of adapting to the
environment may

and multilingual

multicultural
increase with age,

(1) For candidates who have performed compulsory military service or
any other form of compulsory service, for candidates who at any
time have been out of paid employment for at least one year
without interruption in order to look after a dependent child under
compulsory school age or certified as suffering from a severe
mental or physical handicap and for candidates with a physical
handicap, the age limit may be raised. Furthermore, age limits are
not applied to candidates who, on the closing date for
the
submission of applications, will have been serving continuously as
officials or other servants of the European Communities for at least
one year.

(2) Age limits have been raised for candidates who have given up paid
employment for at least one year in order to look after a child
under 16 years of age who is living with them. In this case, the age
limit will be raised by the period outside paid employment,
allowing three years per child, up to a maximum of six years. For
candidates who have done their compulsory military service or any
other form of compulsory service which they are required to do by
their country of origin, the age limit will be raised by the duration
of the service done. Periods of voluntary service over and above
the period of compulsory service will not be taken into account.
For candidates who have a physical handicap which is compatible
with the duties
to be performed and which has been duly
recognised by the competent national authority, the age limit may
be raised by three years.

(cid:151) institutions are bound by the requirement to recruit
on the broadest possible geographical basis without
recourse to national quotas,

(cid:151) the possibility of mobility decreases both with age
and in relation to the candidate’s place of work and
place of residence,

(cid:151) recruitment of younger candidates makes it easier to
achieve a reasonable geographical balance, and a
better ratio of male and female employees,

(cid:151) the setting of an age limit of 35 for candidates for
posts at
the
problems of unemployment of young people living in
the European Union,

starting grades

into account

takes

(cid:151) experience shows that female participation is higher
in competitions at A 8 level than at A 7/6 level.
Therefore, age limits also enhance the gender balance,

(cid:151) abolishing age limits would be counter-productive as
it would increase the number of applications from
men while doing little to remove the obstacles for
women,

(cid:151) there is a need to ensure the best possible conditions

for a balanced administration of careers,

(cid:151) highly experienced people recruited in the lower

career brackets disrupt the staff structure,

(cid:151) hypothetically,

if

the

institutions

abandoned the
general principle of recruiting personnel at the basic
grade, recruitment on a more appropriate grade might
not
create
distortions within the personnel with negative effects
on motivation and good management,

therefore might

justified,

and,

be

(cid:151) it can be envisaged that older A 8 and A 7 officials
more rapidly request promotions in order to obtain a
grade which would suit their experience,

(cid:151) rules governing age

are not

laid down
limits
mechanically, but vary according to the nature of the
department’s needs and allow a distinction to be made
between candidates to take account of their respective
situations,

(cid:151) unofficially, it has often been mentioned that the use
of an age limit is a means of limiting the number of
candidates, and therefore in practice age limits enable
the organising of (cid:145)manageable(cid:146) competitions.

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C 300/147

4.2. The Ombudsman was concerned that the grounds for the
forward by the different
setting of age limits put
Community institutions appeared not to be objectively
the possibility of
justified
to eliminate
arbitrariness. Therefore, without sufficient
justification,
the setting of age limits could constitute discrimination.

in order

5. Union citizens’ possibility to seek employment within

the European Union administration

5.1. The Ombudsman is of the view that each Union citizen
should have the possibility to seek employment within
If
the European Union administration.
it is considered
appropriate to limit
this needs to be
this possibility,
carried out with sufficient justification, avoiding in the
recruitment procedures any elements which might be
considered discriminatory or arbitrary.

5.2. The Ombudsman’s own initiative inquiry into age limits,
as well as individual complaints, have clearly indicated
that the Community institutions have applied various age
limits without a common justification, either in their
practice or in the provision of
the Staff Regulations
governing the setting of an age limit.

institutions are not able to abandon the use of age limits,
it would be preferable to clarify the relevant provision of
the Staff Regulations in order to guarantee that age limits
are not applied in a discriminatory or arbitrary manner.

7.

The actions taken by the Community institutions
concerning age limits

7.1. The European Parliament decided on 20 October 1997 to
raise the age limits
the upcoming
to 45 years
competitions for the starting grades, with a review after
two years on the basis of a report to be submitted by the
the
personnel
Parliament.

Secretary-General of

to the

service

for

7.2. The Commission decided on 21 January 1998 on a policy
principle to abandon age limits in its recruitment policy.
In its comments, the Commission considered it necessary
to put its decision into practice in common agreement
with other institutions and that,
in the meantime, the
Commission will apply an age limit of 45.

7.3. In view of

the above developments,

the Ombudsman
recognised that there is indeed a need for a common
interinstitutional agreement.

6. Correct application of age limits

Conclusion

6.1. The Ombudsman noted that Article F of the Treaty of the
European Union sets a duty to all Community institutions
to respect human rights provisions as they are guaranteed
in the European Convention of Human Rights and result
from the constitutional traditions of the Member States. It
seems pertinent to the Community institutions to apply
these provisions on their own-initiative enhancing the
respect of human rights and fundamental freedoms, as
they appear to have done by the introduction of new
Article 13 in the EC Treaty.

6.2. The Ombudsman found that age is to be regarded as a
possible cause of discrimination. As regards the European
Union, this has been particularly clarified by the Treaty of
Amsterdam and,
the need to combat age
discrimination will only culminate by its entry into force.

therefore,

6.3. The Ombudsman is of the view that the current practice
within the Community institutions of setting various age
limits with differing grounds and without
sufficient
justification cannot be considered as correct application of
age limits.

6.4. However,

the Ombudsman’s

to
indicate that the Community institutions could envisage
the setting of one common age limit with appropriate
If the Community
reasoning and sufficient justification.

appeared

inquiries

On the basis of the Ombudsman’s own-initiative inquiry and
taking into account
the Commission’s announcement of a
policy principle to abandon the use of age limits with a
possible interinstitutional agreement, the Ombudsman found
no grounds to further pursue his own-initiative inquiry into
therefore, decided to close the
the use of age limits and,
the
requested
The Ombudsman
inquiry.
Commission keep him informed about the action undertaken
in order to obtain a common interinstitutional agreement to
abolish age limits.

kindly

that

PENSION RIGHTS OF LOCAL AGENTS OF THE COMMISSION

Own initiative inquiry 1150/97/OI/JMA

The complaint

In November 1997, the European Parliament transferred to the
Ombudsman petition No L-35/96 which had been addressed
to it by Mrs A.V., a Chilean citizen. The petition referred to
the refusal of
the Commission to recognise her retirement
rights during the period 1977 to 1978 in which she worked as
a local agent at
the
Commission.

the Latin American Delegation of

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18.10.1999

The petition was registered as a complaint, but had to be
declared inadmissible since the complainant was neither a
citizen of the Union nor a resident of one of the Member
States, and accordingly she did not meet the criteria set out in
Article 138e of the EC Treaty and Article 2(2) of the Statue of
the Ombudsman.

the circumstances of

In view of
the
Ombudsman decided to open an own-initiative inquiry into
the matter, on the basis of Article 138e of the EC Treaty. It
was registered under file number 1150/97/OI/JMA.

the case, however,

The inquiry

The Commission’s opinion

In December 1997 the Ombudsman informed both the
President of
the European
the Committee on Petitions of
Parliament and the President of the European Commission of
the own-initiative inquiry, and requested an opinion from the
Commission before the end of March 1998.

In reply,
the Commission informed the Ombudsman that,
following this intervention, its services responsible for pensions
had started to evaluate the situation as regards pension rights
of its local staff.

its local agents,

the Commission covers

The Commission subsequently explained that Mrs A.V. had
worked for its Latin American Delegation from 1 January
1977 to 30 September 1978. On the basis of Article 80 of the
Conditions of Employment of other servants of the European
Communities,
security
charges of
in line with local regulations.
However, because of the high rate of inflation which prevailed
in Chile in the 1970s, the Commission arranged for its local
agents employed in Santiago to join a special social security
scheme, the (cid:145)Office de sØcuritØ sociale d’outre-mer(cid:146) (OSSOM),
in Brussels. With the change of economic conditions in Chile,
the Commission’s
there were progressively
agents
incorporated into the national Chilean social security system.

the social

local

As regards the pension rights of Mrs A.V., the Commission
she had been
contacted OSSOM and was
registered there during her period of work with the Latin
American Delegation. The social security contributions paid
during that period should therefore be taken into account for
the calculation of her pension rights, as from the age of 55.

informed that

The Commission also informed the Ombudsman that it had
sent this information to the complainant with reference to his
intervention.

The Decision

In the light of the information contained in the Commission’s
opinion
the
Ombudsman concluded that the problem had been settled by
the Commission and therefore closed the case.

complainant,

supplied

that

and

the

by

4. RELATIONS WITH OTHER INSTITUTIONS OF THE

EUROPEAN UNION

4.1. THE EUROPEAN PARLIAMENT AND THE COMMITTEE ON

PETITIONS

On 19 January, Mr S(cid:246)derman presented his first Special Report
following the own initiative inquiry into public access to
documents, to the Committee on Petitions.

On 20 January, Mr S(cid:246)derman and Mr Ian Harden, Head of the
in Luxembourg with the
Secretariat,
jurisconsult, Mr Garz(cid:243)n Clariana
the
and members of
Parliament’s legal service.

a meeting

had

On 20 April 1998, Mr S(cid:246)derman presented his Annual Report
for 1997 to the Committee on Petitions of
the European
Parliament presided by Mr Edward Newman. Mr S(cid:246)derman’s
speech was
followed by a lively discussion. The press
conference after the meeting was attended by a large number
of journalists.

On 25 June, Mr S(cid:246)derman gave a speech to the Committee on
Institutional Affairs in Brussels in the framework of its hearing
on openness. The rapporteur was MEP Maj-Lis L(cid:246)(cid:246)w. Other
speakers included Professor Deirdre Curtin of the University of
Utrecht, Ms Kristina Rennerstedt, State Secretary in the
Swedish Department of Justice and Mr Hans Brunmayr of the
Council.

On 25 June, Mr S(cid:246)derman also met with the President of the
European Parliament, Mr Gil Robles and with the Secretary
General, Mr Julian Priestley. They discussed open issues related
to the establishment of the Ombudsman’s office as well as the
draft budget for 1999.

On 7 July, Mr S(cid:246)derman and Mr Ian Harden met Mr Garz(cid:243)n
Clariana,
issues
related to the budget.

jurisconsult in Luxembourg to discuss legal

On 23 November, Mr S(cid:246)derman exchanged views with the
Committee on Petitions in Brussels.

4.2. THE EUROPEAN COMMISSION

The Ombudsman forwarded the letter of the Commission to
Mrs A.V.
in June 1998, but no observations were received
from her.

On 2 February, Ian Harden and Peter Dyrberg had a meeting
with the Commission services in view of finding a friendly
solution in Case 1109/96.

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Official Journal of the European Communities

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On 20 April, Mr S(cid:246)derman and Mr Dyrberg met with Mr
Jean-Claude Eeckhout, Director at the Secretariat-General of
the Commission and Mr Philippe Godts. They discussed the
possibility of organising a joint seminar for liaison officers and
Euro-Jus representatives in the Member States to take place in
Brussels in November.

S(cid:246)derman met with Mr

On 21 April, Mr
Santiago
G(cid:243)mez-Reino Lecoq, Deputy Director-General, Directorate
General
I B (cid:151) External Relations: Southern Mediterranean,
Middle East, Latin America, South and South-East Asia and
North-South cooperation. They discussed the possibilities of
the Union to assist
and cooperate with the national
Ombudsmen in Central America.

On 7 May, Mr S(cid:246)derman had a meeting with Mr Alfonso
Mattera Recigliano, Director, Directorate XV B (cid:151) Free
movement of goods and public procurement. They discussed
the Article 169 procedure.

On 8 July, Mr S(cid:246)derman met with Ambassador Christoffersen,
Permanent Representation of Denmark in Brussels.
In the
afternoon he met Commissioner Anita Gradin for an exchange
of views.

On 29 September 1998 Mr S(cid:246)derman met with Mr Mattera
Recigliano, Director in DG XV of the European Commission
and a number of his collaborators to tell in general about the
Ombudsman’s procedures in dealing with complaints related to
the Commission’s Article 169 procedures.

right?(cid:146)

always

On 30 September 1998 Mr S(cid:246)derman gave a speech (cid:145)Is the
customer
the European Commission’s
premises in Brussels. The conference was attended by a large
number of staff from all Community institutions and bodies.
The meeting was chaired by the Director General of DG IX, Mr
Steffen Smidt.

at

Ombudsman, even when a right of Union citizenship is
involved, such as the freedom of movement guaranteed by
Article 8a of the EC Treaty. In many cases, such complaints
could be dealt with effectively by national Ombudsmen or
committees), who are
similar bodies
the
increasingly
implementation
national
administrations.

(such as petitions
involved with matters

concern
by

Community

that

law

of

5.1. THE LIAISON NETWORK

In 1998, the cooperation between the national ombudsmen
and similar bodies and the European Ombudsman continued.
A second liaison letter was published in May 1998 and the
third was produced in the late autumn.

A seminar was held together with the liaison officers of the
national ombudsman offices and Euro-Jus officers on 23 and
24 November 1998 in Brussels, dealing with the fields of
Community law, standards of good administrative behaviour
and the work of the national ombudsmen and similar bodies
in relation to judicial review and concrete cases related to
Community law. The speakers included Mr S(cid:246)derman, Mrs
Anita Gradin, Commissioner
and Mr Edward Newman,
Vice-President of
the Petitions Committee in the European
Parliament, Mr Leif Sev(cid:243)n Judge of the Court of Justice of the
European Community, Mr David O’Keeffe, Professor of Law,
University College London, Mr De Brouwer, European
Commission, Mr Brophy,
Irish Ombudsman Office, Mr
Ebermann, European Commission, Mr Palacio GonzÆlez,
Administrator, Court of First Instance, Mr Philippe Bardiaux,
Portuguese
French Ombudsman Office, Mr
Ombudsman Office, Mrs Gerstberger, Secretariat of
the
Petitions Committee of the German Bundestag, Mr Andersen,
Danish Ombudsman Office, Mr Tate, UK Ombudsman Office,
Mr Gasparinetti, European Commission and Mr Stoodley,
European Commission. The sessions were chaired by Mr
S(cid:246)derman, Mr Bermejo from the Spanish Ombudsman Office,
Mrs Riitta L(cid:228)nsisyrj(cid:228) from the Finnish Ombudsman Office and
Mr Bardiaux from the French Ombudsman Office.

Ribeiro,

5. RELATIONS WITH THE NATIONAL OMBUDSMEN

AND SIMILAR BODIES

5.2. COOPERATION IN DEALING WITH COMPLAINTS

To safeguard the rights of European citizens, a flexible system
of cooperation is being developed between the European
Ombudsman and ombudsmen and similar bodies
in the
Member States.

The implementation of many aspects of Community law is the
responsibility of national, regional or local administrations in
the Member States. Complaints from citizens who consider
rights under
that
infringed their
the European
Community law are outside the mandate of

such authorities have

At the seminar held in Strasbourg in September 1996 with the
national Ombudsmen and similar bodies and the European
Ombudsman it was agreed that the European Ombudsman
would be willing to receive queries from national Ombudsmen
and similar bodies about Community law and either provide
replies directly or channel the query to an appropriate Union
institution or body for a response.

During year 1998, five queries were dealt with in this way.

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5.3. COOPERATION WITH REGIONAL OMBUDSMEN AND

SIMILAR BODIES

paid a visit to the European Ombudsman’s office and invited
the Ombudsman to visit Tuscany.

In May 1997, the European Ombudsman received an inquiry
from the Andalusian regional Ombudsman, Mr Chamizo de la
Rubia. He complained about the allegedly passive attitude of
the French authorities towards the attacks suffered by Spanish
truck drivers in France, and the destruction of their agricultural
goods. In his view, that attitude was contrary to one of the
basic principles of the European Community, namely the free
circulation of goods, and in particular contravened Articles 38,
39 and 74 of the EC Treaty. Mr Chamizo stressed the very
negative consequences of
these actions for the agricultural
Spanish exports, and in particular for farmers in Andalusia.
(Complaint 478/97/JMA).

He called on the European Ombudsman to launch an
own-initiative inquiry into this matter, in order to make the
Commission, as the guardian of the Treaty, take action against
the French Government.

Having examined the arguments put forward in the complaint,
the Ombudsman concluded that
it could not be declared
admissible since no prior administrative approaches towards
the responsible EC institution had been undertaken, as required
by Article 2(4) of the Statute of the European Ombudsman
and decided to transfer
to the European
Commission. In his letter to Mr Chamizo of June 1997, the
Ombudsman explained that
this transfer would allow the
Commission to take appropriate measures.

the complaint

the

latest

situation.

regarding

developments

The Commission informed the Andalusian ombudsman that
his letter had been registered as a complaint. In August 1997,
DGVI’s Director-General, Mr Legras, updated Mr Chamizo on
the
The
Commission explained that it had monitored the situation, and
considered that it was contrary to Article 30 of the Treaty.
Accordingly, after having started an infringement proceeding,
the Commission had brought the matter before the Court of
Justice (Case C-265/95). As regards the latest events,
the
Commission had sent several letters to the French authorities
accordingly. An additional letter from Mr Legras was sent to
Mr Chamizo in March 1998, informing of the ruling of the
Court of Justice against France. Mr Legras also explained that,
following
the
Commission had been working on a draft regulation which
has already been submitted to the Council. This Regulation
would enable the Commission to take action against Member
States which do not adopt all necessary measures to avoid
attacks on the free circulation of goods.

the Amsterdam Summit

in June 1997,

On 12 October 1998, Mr S(cid:246)derman met with the Petitions
Committee of the S(cid:228)chsischer Landtag, headed by Mr Thomas
M(cid:228)dler, President of
the Committee. After the speech Mr
S(cid:246)derman gave about his work as European Ombudsman, an
exchange of views followed concerning future cooperation
between the two bodies.

6. PUBLIC RELATIONS

6.1. HIGHLIGHTS OF THE YEAR

1998 FIDE CONGRESS

The European Ombudsman was general rapporteur for the
theme (cid:145)The citizen, the administration and Community law(cid:146) at
the XVIII FIDE Congress, held in Stockholm, Sweden, 3 to 6
June 1998. He was accompanied by Ian Harden, Peter Dyrberg
and JosØ Mart(cid:237)nez Arag(cid:243)n.

The working sessions for the theme were chaired by Ms
Elisabeth Palm, President of
the Administrative Court of
Appeal of Gothenburg and Dr Hans Ragnemalm, judge at the
Court of Justice of the European Communities.

The FIDE Congress was attended by over 500 delegates, from
the European Institutions, all Member States of the Union and
from Cyprus, Malta, Norway and Switzerland.

At the opening plenary session of the Congress, the Swedish
Minister of Justice Ms Laila Freivalds gave a speech on (cid:145)the rule
of law and the enlargement of the European Union(cid:146) and the
Justice Dr Gil Carlos Rodr(cid:237)guez
President of
Iglesias gave the opening lecture (cid:145)la Cour de justice des
CommunautØs europØennes et
l’interaction entre le droit
europØen et le droit national(cid:146).

the Court of

The Ombudsman’s general report on the theme (cid:145)the citizen,
the administration and community law(cid:146), together with his final
report to the plenary session are available on the website, in
English and French.

In view of
those explanations, Mr Chamizo wrote to the
Ombudsman in May 1998, expressing his satisfaction for the
actions which had been undertaken by the Commission, and
thanked the Ombudsman for his cooperation in seeking a
solution to the problem.

THE ANNUAL REPORT 1997

On 17 July 1998, Mr Romano Fantappie,
the Regional
Ombudsman of Tuscany, accompanied by his collaborators,

The European Ombudsman presented his annual report for
1997 to the European Parliament at a plenary session in
Strasbourg on 16 July 1998.

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C 300/151

the

Edward Newman (MEP) welcomed

Reporting on behalf of
the Committee on Petitions of the
the
Parliament, Mr
Ombudsman’s definition of (cid:145)maladministration(cid:146). The previous
year,
the
Parliament
Ombudsman to make full use of his mandate to deal with
maladministration in the activities of Community institutions
and bodies and noted the importance of a clear definition of
the term (cid:145)maladministration(cid:146).

encouraged

European

had

Based on information supplied by national Ombudsmen and
similar bodies,
the
following definition in his annual report:
(cid:145)Maladministration
occurs when a public body fails to act in accordance with a
rule or principle which is binding on it(cid:146).

European Ombudsman offered

the

6.2. CONFERENCES AND MEETINGS

GERMANY

On 10 May, Mr S(cid:246)derman was invited by MEP Karl von
Wogau to speak about (cid:145)the rights of European citizens(cid:146) in the
in Bad
(cid:145)European day(cid:146)
framework of
Krozingen.

celebration,

the

Over 1 000 people from the surrounding area as well as from
France and Switzerland took part in the festivities and visited
the various stands. Brochures on the European Ombudsman
were displayed and distributed on the EU stand.

Parliament considered that this definition, together with the
examples mentioned in the annual report, gives a clear picture
as to what lies within the remit of the Ombudsman. Following
Mr Newman’s proposal on behalf of
the Committee on
Petitions (1), it adopted a resolution welcoming the definition.

Mr S(cid:246)derman had the opportunity to meet Mrs Gerdi Staiblin,
Minister for Agriculture of Baden W(cid:252)rttemberg as well as the
Mayor of Bad Krozingen, Mr Ekkehart Meroth.

THE SPECIAL REPORT OF THE EUROPEAN OMBUDSMAN

the Ombudsman concerning the
The Special Report of
Ombudsman’s own-initiative into public access to documents,
which he presented to the President of
the European
Parliament on 15 December 1997, was discussed by
Parliament at the plenary session of July on the basis of the
report on it by the Committee on Petitions (rapporteur Astrid
Thors) (2). In its resolution on the Special Report, Parliament
welcomed the action of the Ombudsman towards transparency
in the Union.
increasing transparency and
improving public access to documents are closely linked with
the code of good administrative behaviour suggested by the
Ombudsman in his annual report 1997.

It noted that

A EUROPEAN HUMAN RIGHTS AGENDA FOR THE YEAR 2000

Jacob

On 9 and 10 October 1998, Mr
S(cid:246)derman,
accompanied by Mr Peter Dyrberg, participated in a conference
in Vienna, the theme of which was (cid:145)The EU and human rights:
Towards an agenda for the year 2000(cid:146). The conference was
organised by the European University Institute in cooperation
with the Austrian Ministry for Foreign Affairs. Mr S(cid:246)derman
gave a speech on the European Ombudsman and human
rights, including suggestions on how to improve the protection
of human rights within the Union.

(1) A4-0258/98 (OJ C 292, 21.9.1998, p. 168).
(2) A4-0265/98 (OJ C 292, 21.9.1998, p.170).

On 27 June, Mr S(cid:246)derman was invited to participate in a panel
with the theme (cid:145)Europe today (cid:151) Its institutions and its people(cid:146)
organised by Professor Dr H(cid:246)nnighausen of the University of
Bonn in the framework of the Transatlantic summer academy
(TASA) 1998. The panel was chaired by Mr Matt Marshall,
journalist for the Wall Street Journal Europe. Other speakers
included Dr Eckhard L(cid:252)bkemeier, Head of the Foreign Policy
Studies of the Friedrich Ebert Foundation as well as Professor
Hella Mandt, Professor of Political Science of the University of
Trier. The audience consisted of 32 students from various
Universities in the United States, Canada, Russia,
Italy, The
Netherlands, Former Yugoslav Republic of Macedonia, Great
Britain, Ukraine, Yugoslavia, Ireland, Lithuania and Estonia.

On 22 and 23 October, Ms Vicky Kloppenburg and Mr
Mart(cid:237)nez Arag(cid:243)n took part in a seminar on (cid:145)Cooperation in
the field of
justice and home affairs, and Schengen after
Amsterdam(cid:146), organised by the Academy of European Law in
Trier. The course sought to evaluate the changes introduced by
the Treaty of Amsterdam as
judicial and police
cooperation in the European Union, and the consequences of
the new Community provisions on common rules of asylum,
immigration and border controls.

regards

into

account

The powers given by the Treaty to the Ombudsman in order
to monitor the application of these provisions were discussed,
taking
on other
Community institutions, particularly on the Court of Justice,
and their impact to citizens’ rights. It was generally agreed that
the
raise
important legal problems, which should require a cooperative
effort among national and Community institutions.

those new provisions will

implementation of

limitations placed

the

On 5 November 1998 Peter Dyrberg met with Mrs Kn(cid:246)fler,
Chairman of the Petitions Committee of the Parliament of the
German
the
Saxony-Anhalt,
Administrator of the Committee.

and Mr

Sch(cid:228)fer,

Land

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On 6 November 1998 Peter Dyrberg gave a speech on (cid:145)The
European Ombudsman and transparency and democracy(cid:146) at a
conference entitled (cid:145)Transparency and democracy(cid:146), organised in
Magdeburg by the association (cid:145)Europa-Forum Magdeburger
B(cid:246)rde e.V.(cid:146)

On the occasion of
the Human Rights’ Declaration, Mr
S(cid:246)derman was invited to give a speech about EU and human
rights at the Universidad Complutense Madrid on 9 December.

Invited by Professor Dr J(cid:252)rgen Schwarze, Mr S(cid:246)derman gave a
lecture on 2 December at the University of Freiburg.

On 10 and 11 December, Mr S(cid:246)derman accompanied by Mr
Mart(cid:237)nez Arag(cid:243)n participated in a seminar (cid:145)Jornadas sobre
’Educaci(cid:243)n en Derechos humanos’(cid:146) organised in Seville by the
Andalusian Ombudsman. Mr S(cid:246)derman gave the opening
lecture.

SPAIN

FRANCE

the 50th anniversary of

the UN
On the occasion of
the Catalonian Institute for
Declaration of Human Rights,
Human Rights invited Mr S(cid:246)derman to participate together
with Mr Caæellas, regional Ombudsman of Catalonia, and Mr
`lvarez de Miranda y Torres, Spanish Ombudsman in a
conference in Barcelona on 6 March 1998. The round table
revolved around the role of human rights in the work of
Ombudsmen. The speech was attended by a diverse audience
of lawyers and law students. Mr S(cid:246)derman was accompanied
by Mr JosØ Mart(cid:237)nez Arag(cid:243)n.

On 5 and 6 February, Mr S(cid:246)derman was invited to participate
in a colloquium organised by the French Ombudsman, Mr
Jacques Pelletier, on the occasion of the 25th anniversary of
the French institution. Among other participants, Mr Jacques
Chirac, President of France, gave the opening speech and Mr
Jospin, Prime Minister, participated in the closing
Lionel
ceremony. Mr S(cid:246)derman spoke about
the origins and the
development of the Ombudsman institution in the world. He
was accompanied by Mr Olivier Verheecke.

As part of the initiatives of the Ibero-American Federation of
Ombudsmen (FIO),
the University of AlcalÆ de Henares in
Madrid organised a (cid:145)Course to strengthen the institution of
Ombudsman in Latin America(cid:146)
from March to December
1998. The aim of the course is to give practical training to
officials
in Latin
from the different Ombudsmen offices
America. Mr S(cid:246)derman was invited to speak at the opening
ceremony on 9 March 1998. In reviewing the evolution of the
Union’s
years, he drew some
conclusions of interest for the Latin American audience.

citizenship in the past

Other participants in this event included Mr Gala, Provost of
the University, Mr Pimentel, Portuguese Ombudsman, Mr
`lvarez de Miranda y Torres, Spanish Ombudsman, Mr
Caæellas, regional Ombudsman of Catalonia, and Mr Chamizo,
regional Ombudsman of Andalusia.

The University of Complutense organised (cid:145)1as jornadas sobre
derecho interno y derecho comunitario europeo(cid:146) with the
theme (cid:145)armonizaci(cid:243)n e integraci(cid:243)n de los ordenamientos
jur(cid:237)dicos de los Estados miembros en el derecho de la Uni(cid:243)n
Europea(cid:146) in Madrid on 27 to 29 April 1998.

Legal Officer Benita Broms participated in a colloquy (cid:145)In our
hands (cid:151) The effectiveness of human rights protection 50
years after
the Universal Declaration(cid:146). The colloquy was
organised in Strasbourg, 2 to 4 September 1998 by the
Council of Europe as a contribution to the commemoration of
the 50th anniversary of the Universal Declaration of Human
Rights and the 1998 review of the implementation of the
Vienna Declaration and action programme.

and

indivisibility

interdependence,

The opening statement was made by Ms Mary Robinson,
United Nations High Commissioner for Human Rights. The
themes discussed included the following: prevention of and
responses to structural or large-scale human rights violations,
rapporteur Mr Vojin Dimitrijevic; Social rights: the challenge
of
rapporteur Mr
Aalt-Willem Heringa; effective implementation of women’s
rights, rapporteur Ms Katarina Tomasevski; protection: effective
action at the national level, rapporteur Mr RØgis De Gouttes;
international
protection:
level,
at
effective
rapporteur Mr Jeremy McBride;
the promotion of human
information, education and training, rapporteur Ms
rights:
Kaija Gertnere. Parallel discussion groups on the various
themes were chaired by prominent persons in the field of
human rights.

action

the

Mr S(cid:246)derman was invited to speak at the closing ceremony on
29 April. He gave a talk entitled (cid:145)La figura del Defensor del
Pueblo Europeo: Funciones y perspectivas de actuaci(cid:243)n(cid:146).

Mr Peter Dyrberg participated in the 24th International
Congress of Administrative
the
International Institute of Administrative Sciences in Paris on 7
to 11 September.

Sciences, organised by

Mr S(cid:246)derman also visited the European Parliament office in
Madrid.

On 20 October, Mr Bernard Stasi, MØdiateur de la RØpublique,
paid a visit to the European Ombudsman together with Mr

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Vincent Bouvier, DØlØguØ GØnØral, Mr Philippe Bardiaux,
Conseiller pour les relations extØrieures, Mme Anne Morrier,
ChargØe de mission pour
and Mr
Jean-Fran(cid:231)ois Leroy, ChargØ de mission pour les DØlØguØs
dØpartementaux.

la Communication,

issue

on a bill organising the ombudsmanship in Italy is an
for European citizenship. Mr S(cid:246)derman
important
emphasised that, although Italy has active local and regional
ombudsmen, often responsible for regions which are bigger
than some Member States of the European Union, it remains
among the few countries in the Union without a national
ombudsman.

During the discussions, a seminar was agreed to be organised
in September 1999 in Paris. After the meeting, Mr Stasi and
Mr S(cid:246)derman gave a joint press conference.

IRELAND

On 4 and 5 November, Mr Ian Harden presented the work of
the European Ombudsman at seminars on transparency and
democracy in Europe in Dungarvan, County Waterford and in
Killarney, County Kerry, organised respectively by the South
East European Centre and the South-west
Ireland Rural
Carrefour of the South Kerry Development Partnership. Other
speakers included Michael Brophy of the Irish Ombudsman’s
Office, Siobhan Duffy, the Euro-Jus representative in Ireland,
Paul Gormley of
the Commission representation and Jim
O’Brien from the European Parliament representation.

ITALY

Mr. S(cid:246)derman paid an official visit
to Italy on 23 to 26
September 1998. During his visit to Florence, he first had a
meeting with the Regional Ombudsman of Tuscany, Mr
Romano Fantappie, and his staff. Mr S(cid:246)derman was informed
of various projects conceived by the office of the Regional
Ombudsman, such as the creation of an electronic network to
link all the ombudsmen in Tuscany, and the organisation of an
international meeting of regional ombudsmen in the EU.

The European Ombudsman met also Mr Paolo Giannarelli,
Minister of the Regional Government of Tuscany in charge of
community politics. Mr Giannarelli mentioned the importance
of the European Ombudsman’s activities, which in his view are
essential to make the Italian citizen aware of his European
citizenship. Mr S(cid:246)derman expressed his wish to create strong
relations with Italian ombudsmen at all
levels. The project
presented by the Regional Ombudsman of Tuscany would be
an excellent way to achieve this cooperation. During this
meeting,
the European Ombudsman was presented two
specific cases opposing the European Commission and Tuscany
(cases relating to wine production and livestock farming).

Mr Fantappie invited the local ombudsmen of Tuscany, 30 in
all, to a meeting with the European Ombudsman. This offered
an opportunity to discuss the problems raised by a very
heterogeneous organisation of
the Italian ombudsmanship.
Unifying the rules in this domain and promoting cooperation
between ombudsmen appeared to be extremely necessary.

the Institute, Professor Meny, Director of

Mr S(cid:246)derman also paid a visit to the European University
Institute in Fiesole meeting with Professor Masterson, President
of
the Institute,
Professor Dehousse and Professor Ziller. Mr S(cid:246)derman spoke
about his work and the notion of maladministration. Further
there was an exchange of views about the relations between
the European Ombudsman and other Community institutions,
as well as with some national courts or ombudsmen. Finally
Mr S(cid:246)derman underlined the importance of creating a network
between the European Ombudsman and national, regional and
local ombudsmen, especially from the perspective of the Treaty
of Amsterdam.

the

first

region in Italy to have

This meeting was followed by a meeting with Professor Angelo
Passaleva, President of the Regional Council of Tuscany. The
President expressed his happiness to welcome Mr S(cid:246)derman to
Tuscany,
regional
ombudsman. Professor Passaleva and Mr S(cid:246)derman exchanged
views about the work of the European Ombudsman, as well as
on the importance of relations between ombudsmen of all
local, regional and national
levels. As to his work, Professor
Passaleva said that in Italy, questions relating to public health
constitute a major part of the regional ombudsmen’s work,
and that this issue is of particular concern to him. Professor
Passaleva and Mr S(cid:246)derman agreed that the forthcoming vote

a

On 26 September, a conference was organised in Verona by
the Local Ombudsman, Mr Giovanni Fraizzoli. Mr S(cid:246)derman
was invited to deliver a speech about the (cid:145)Cooperation with
regional and local ombudsmen to protect and
national,
promote
the European citizenship(cid:146). Mr Anton Caæellas,
Regional Ombudsman of Catalonia presented the regional
ombudsmanship from a Spanish point of view, highlighting
his own experiences. Mr Paolo Cavaleri, Professor of Public
Law in Verona, and professor Lucio Strumendo, Regional
Ombudsman of Veneto, were invited to present the Italian
issues
in the
perspective of the forthcoming vote of the Italian Parliament.

relating to ombudsmanship,

in particular

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The conference was followed by a debate involving regional
and local ombudsmen from various parts of Italy, as well as
some citizens of Verona.

THE NETHERLANDS

From 8 to 10 May 1998, Mr Olivier Verheecke and Mr Ben
Hagard attended the Congress of Europe held in The Hague
(Let’s build Europe of the 21st century area of solidarity and
freedom) on the occasion of the 50th anniversary of the first
Congress of Europe. The congress was organised by the
International European Movement, presided by Mr Mario
Soares who gave the welcoming speech. The congress was
solemnly opened on 9 May 1998 by her Majesty the Queen of
Interventions followed by Mr JosØ Maria
the Netherlands.
Gil-Robles, President of
the European Parliament, Mr Peter
Mandelson, Minister without Portfolio (United Kingdom), Mr
Jacques Santer, President of the European Commission, Mr Gil
Carlos Rodriguez Iglesias, President of the Court of Justice of
the European Communities, and Mrs Leni Fischer, President of
the Parliamentary Assembly of the Council of Europe.

During the congress, Mr Verheecke and Mr Hagard managed a
stand about the European Ombudsman at the (cid:145)Expo Europe(cid:146)
and informed participants to the congress about the role and
activities of the European Ombudsman. Of the 3 000 congress
participants, over 700 visited the Ombudsman’s stand to ask
questions and to take material.

Mr Verheecke attended the workshop (cid:145)Democracy, citizenship
and human rights(cid:146), chaired by Mr P. J. G. Kapteyn, Judge at the
Court of Justice of the European Communities. Among the
speakers at the workshop were Mr Jean-Victor Louis, Professor
at the European Studies Institute (Brussels) and President of the
Initiative Committee of the International European Movement,
Mr Pier Virgilio Dastoli, General Secretary of the International
European Movement, and Mr Andreas Gross, Member of the
Parliamentary Assembly of the Council of Europe. The debates
and
introductory
were based on the
citizenship in Europe(cid:146) presented by Mr Jo Leinen, President of
the Union of European Federalists (UEF). One of the main
subjects of
the debates concerned the drawing up of a
European constitution. The three other workshops were (cid:145)The
(cid:145)The multicultural
economic and social dimension of Europe(cid:146),
dimension of Europe(cid:146) and (cid:145)Europe in the world(cid:146).

(cid:145)Democracy

text

PORTUGAL

Mr Jacob S(cid:246)derman made an official visit to Portugal from 13
to 15 April 1998. The visit was organised by both Mr JosØ
Meneres Pimentel, Portuguese National Ombudsman and Mr
Nuno Antas de Campos, Head of the European Parliament
Information Office in Lisbon. The European Ombudsman paid
a visit to the Portuguese National Ombudsman Office. He also
visited the European Parliament Information Office and the
European Commission Representation in Lisbon.

General
for European Affairs in the Foreign Ministry, Mr
Cardoso da Costa, President of the Constitutional Court, Mr
Santos, President of the Portuguese Parliament and Mr Martins,
the Portuguese Parliament
President of
dealing with Constitutional
and
guarantees to citizens. Mr S(cid:246)derman also had the opportunity
to meet Mr Soares,
the Portuguese
Republic and current President of the European Movement.

former President of

the Commission of

freedoms

affairs,

rights,

Mr S(cid:246)derman also met with Mr Freitas do Amaral, Professor of
administrative law at the University of Lisbon and President of
the Portuguese branch of the European Movement.

FINLAND

On 14 March, Mr S(cid:246)derman gave a lecture entitled (cid:145)Citizens’
Europe(cid:146)
in Tampere, Finland. The meeting was attended by
about 150 jurors of the Courts of First Instance.

Mr S(cid:246)derman participated in a seminar on ethics organised by
the Archbishop of Turku on 20 May 1998. He gave a speech
on (cid:145)European values(cid:146).

Mr S(cid:246)derman accompanied by Mrs Benita Broms, Legal
Officer, attended the (cid:145)Nordic Conference on Community law(cid:146)
on 6 to 8 November in Helsinki. Mr S(cid:246)derman gave a speech
about European citizens and the Community institutions.

Mr S(cid:246)derman also presented his work in Kajaani, Sein(cid:228)joki,
and Imatra on 11, 12 and 15 November.

SWEDEN

On the occasion of the 1998 FIDE Congress (3 to 6 June
1998),
Swedish
the European Ombudsman visited the
Parliament and presented his work to the Committee on
European Affairs on 2 June.

On 16 October, Mr S(cid:246)derman visited G(cid:246)teborg, Sweden and
gave a lecture in a seminar (cid:145)Demokrati och transparens I v(cid:229)rt
Europa(cid:146). The seminar is part of the Carrefour West Europe
sponsored by the Commission. Mrs Linda Steneberg, Head of
the Commission’s representation in Sweden, made a speech
about access to EU related information and Mr Ivar Virgin and
Mrs Anneli HulthØn, MEPs, about their work at the European
Parliament.

UNITED KINGDOM

Meetings with high Portuguese officials were also part of the
they included Mr Seixas da Costa, Secretary
programme,

On 23 January, Mr S(cid:246)derman made an official visit to Scotland
where he visited the Commissioner for local Administration,
Mr Frederick Marks. He also paid a visit to the Commission

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Representation in Edinburgh and was invited to give a lecture
on the role of the European Ombudsman at the University of
Edinburgh by Professor John Usher.

On 12 February, Mrs Sandra Piszk, Ombudsman of Costa Rica
paid a visit to the European Ombudsman in Strasbourg.

Mr S(cid:246)derman, accompanied by Internet Communications
Officer Ben Hagard, visited the United Kingdom on 28 and 29
May. On 28 May, Mr S(cid:246)derman gave a seminar about the role
of the European Ombudsman at the University of Reading’s
Centre for Ombudsman Studies. Before the meeting, Mr
S(cid:246)derman met with Professor Roy Gregory, the Director of the
Centre, who then chaired the seminar. A lively discussion
followed the speech by Mr S(cid:246)derman. Participants included
Professor Roy Gregory and Dr Philip Giddings from the Centre
for Ombudsman Studies, Professor Peter Woodward and Dr
Alex Warleigh from the University of Reading’s Department of
Politics,
the Department of Politics Professor
Richard Bellamy, the Dean of the University’s Faculty of Letters
Professor Tony Downs, and Professor Gavin Drewry from the
Royal Holloway College, University of London.

the Head of

Articles about the visit of Mr S(cid:246)derman later appeared in the
Reading evening post and the Reading chronicle, as well as in the
University of Reading’s Bulletin.

After the seminar,
the University of
the Vice-chancellor of
Reading, Professor Roger Williams, hosted a dinner in honour
of Mr S(cid:246)derman.

On 29 May, Mr S(cid:246)derman addressed the (cid:145)Focus Europe(cid:146)
briefing of the Civil Service College in London. Mr Michael
Duggett, Principal Lecturer in Policy, Government and Europe
at the College, chaired the briefing. In the question-and-answer
session following the speech of Mr S(cid:246)derman, participants
included Mr Michael Duggett, Mr John Tate from the office of
the UK Parliamentary Commissioner,
the UK Pensions
Ombudsman Mr Julian Parry, Mrs Margaret Batty from the
Civil Service College, Mr Nick O’Brien from the office of the
UK Legal Services Ombudsman, and Mr Keith Finch from the
Ministry of Agriculture.

On 6 November, Mr Ian Harden presented the work of the
European Ombudsman at a conference organised by the
community Council of Lancashire. Other speakers included Mr
Tony Cunningham MEP, Mr Alan Watson from the office of
the Parliamentary Commissioner for Administration and Ms
Alison Hook from the Commission representation. The
conference was chaired by Mrs Patricia Thomas Commissioner
for Local Administration in England.

6.3. OTHER EVENTS

On 9 February, Mr S(cid:246)derman gave a lecture on his role as
European Ombudsman to approximately 400 students from
the UniversitØ Robert Schuman of Strasbourg. This event was
organised by the European Parliament in the framework of the
(cid:145)European Week(cid:146)
in
Strasbourg.

in the hemicycle

and took place

The Peruvian Ombudsman, Mr Jorge Santistevan de Noriega,
visited the Brussels antenna of the European Ombudsman’s
office and met with Mr Peter Dyrberg, senior legal officer, on
12 February.

On 19 February, Mr S(cid:246)derman and Mr Harden met Mr GØrard
Beliard, Head of the International Relations’ Department of the
City of Strasbourg.

role as European
Mr S(cid:246)derman gave a lecture on his
Ombudsman to about 50 members of the EU Committee of
the American Chamber of Commerce in Belgium. The meeting
took place in Strasbourg, on 11 March.

The Australian Ambassador
John Michael
Spender visited the European Ombudsman in Strasbourg, on
11 March.

in France, Mr

Mr S(cid:246)derman met with Mr Jan Grevstad, Counsellor at the
Mission of Norway to the European Union on 12 March, in
Strasbourg.

On 17 March,
Ian Harden gave a talk to the Centre for
European Policy Studies in Brussels entitled (cid:145)The work of the
European Ombudsman’s office(cid:146).

On 18 March, Mr Peter Dyrberg gave a talk on the role of the
European Ombudsman to 20 students from Saxony-Anhalt.

On 23 March, Mr Fahri Ozturk, President of the Conseil de
supervision d’(cid:201)tat (cid:224) la PrØsidence of Turkey and Mr Nuri
to the
Tortop, member of
European Ombudsman. This visit was organised by the French
Ministry of Foreign Affairs as part of an official trip to France.

the same council paid a visit

Dr G(cid:246)khan ˙apoglu, Chairman of
Turkey and Member of
European Ombudsman on 1 April.

the Party of Changing
the Turkish Parliament visited the

On 6 April 1998, Mr Olivier Verheecke received a group of
students and professors from the Scuola Media Statale of
Belluno (Italy) and gave a presentation on the work of the
European Ombudsman.

On 7 April, Mr S(cid:246)derman gave a lecture to 12 students of
political
science from the Strasbourg Centre of Syracuse
University (New York, USA).

On 21 April, Mr Peter Dyrberg gave a talk on the work of the
European Ombudsman to 35 teachers from Saxony-Anhalt. He
also received a group of 20 Danish journalists and spoke about
the Ombudsman’s latest achievements.

C 300/156

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18.10.1999

(cid:145)Internationales

On 23 April, Mr S(cid:246)derman made a presentation of his work as
the
European Ombudsman to a group of 60 members of
association
audience
included German, Swiss, Austrian, Hungarian, Czech, Polish
and Slovak nationals. The meeting took place
in the
framework of an annual visit to the European Parliament in
Strasbourg.

Kolpingwerk(cid:146).

The

On 28 April, Mr S(cid:246)derman gave a lecture to a group of 50
students of the University of Bayreuth, Germany.

On 7 May, Mr Peter Dyrberg gave a talk on (cid:145)Open government
and the need for transparency(cid:146) at a seminar on (cid:145)Parliaments on
the net(cid:146), organised by the European centre for Parliamentary
Research and Documentation, in Brussels.

On 7 May, Mr S(cid:246)derman presented his work to a group of 20
students of
Jyv(cid:228)skyl(cid:228), Finland who were
visiting Brussels.

the University of

In the context of the European Day, the European Parliament
organised an open day both in Brussels and Strasbourg on 9
May. Among the estimated 9 000 visitors in Brussels and
5 000 in Strasbourg, a large number visited the Ombudsman’s
stands in the new Leopold building in Brussels and in IPE1 in
the
Strasbourg. General
Ombudsman’s staff present on the stands and information
material was distributed.

information was provided

by

On 11 May 1998, 20 members of the European Information
Association from the United Kingdom, Estonia, Austria and
Italy were given a report by Mr S(cid:246)derman on the work of the
Ombudsman and on the future of the Ombudsman’s website.

On 11 May, Mr S(cid:246)derman also gave an insight of his work to
20 members of the EU Committee of the Finnish Parliament.

Mr S(cid:246)derman was further invited to give a lecture to 12
Finnish high officials participating in a training session at the
Centre des Øtudes europØennes in Strasbourg on 11 May.

The Secretary-General of the Chilean Communist Party, Ms
Gladys Marin, who was visiting the European Parliament, paid
a visit to Mr S(cid:246)derman on 13 May.

On 25 May, Mr Jukka Pasanen, Vice-chancellor of Justice of
the
Finland and Mr Jukka Okko Referendary counsellor at
office of
to the
Ombudsman.

Justice paid a visit

the Chancellor of

On 28 and 29 May, Peter Dyrberg attended a conference
organised by the European University Institute (Florence) on
the theme (cid:145)An EU human rights agenda for the year 2000(cid:146).

Ian Harden gave a lecture on the role of
the European
Ombudsman to a group of students of the Leiden Law Faculty,
led by Professor Dr H. G. Schermers on 11 June 1998.

On 15 June, Mr S(cid:246)derman presented his work to a group of
38 members of the National Centre of Culture of Lisbon that
were invited to visit the European Parliament by MEP Vaz da
Silva.

Ian Harden gave a lecture on the role of
the European
Ombudsman to a group of stagiaires from the Centre des
Øtudes supØrieures de la fonction publique territoriale, on 17
June 1998.

On 18 June, the Catalonian Ombudsman, Mr Anton Caæellas i
Balcells, visited the Brussels antenna of
the Ombudsman’s
office. He was accompanied by Mr Jan Goorden, Ombudsman
of
the Flemish community of Belgium. They both had an
exchange of views with Peter Dyrberg.

At the request of The Montgelas society for the promotion of
franco-bavarian cooperation, a group of 20 high officials from
Bavaria were given a lecture by Mr S(cid:246)derman on 2 July.

On 6 July, Mr S(cid:246)derman received a group of students from the
(cid:145)Gymnasium Geretsried(cid:146), Germany who were visiting the
European Parliament. He gave them a lecture on his role and
activities.

Professor Roy Gregory of the Centre for Ombudsman Studies
at the University of Reading visited the Ombudsman’s office
on 6 July. He had an exchange of views with Mr S(cid:246)derman
and Mr Harden.

Ian Harden gave a lecture on the role of
Ombudsman to members of
Auditors for the State Administration,
May.

the European
the Finnish Association of
in Strasbourg on 14

Mr Ian Harden gave a lecture on the role of the European
Ombudsman to a group of
journalists from Pakistan and
Bangladesh, visiting the European Journalism Centre on 15
September 1998.

Peter Dyrberg gave a talk to members of the Danish union
HK-Handel from ¯rhus, in Brussels on 19 May.

On 24 September 1998, Mr Peter Dyrberg gave a speech to a
Finnish group of University students on the work of
the
Ombudsman and the citizens’ access to information.

Also on 19 May, Ms Vicky Kloppenburg gave a presentation of
the work of
the European Ombudsman to a group of
journalists
from Finland who were visiting the European
Parliament in Brussels at the invitation of MEP Astrid Thors.

On 23 October, Mr S(cid:246)derman met with a group of Leiden’s
Student Association giving them a review of the European
Ombudsman’s role and duties.

18.10.1999

EN

Official Journal of the European Communities

C 300/157

Mr Ian Harden gave a presentation on the right to complain to
the European Ombudsman in a seminar organised by L’institut
des hautes Øtudes europØennes on 17 and 18 November in
Strasbourg.

On 20 November, Mr S(cid:246)derman received a Danish group of
students from Handelssolen I Ballerup in Strasbourg.

On 23 November, Mrs Benita Broms gave an overview of the
role of the European Ombudsman to a group of Finnish judges
and lawyers visiting Strasbourg.

Mr S(cid:246)derman lectured about (cid:145)Le mØdiateur dans le systŁme
communautaire, r(cid:244)le de la Commission des affaires juridiques(cid:146)
to l’Union des avocats europØens on 27 November
in
Strasbourg.

Lectures about the role of the European Ombudsman were
given by Mr Olivier Verheecke on 2 December in Wageningen,
Netherlands and by Mr Xavier Denoºl on 10 December in Midi
PyrØnØes, France, to conferences organised by the (cid:145)Carrefour(cid:146)
network of the rural information centres.

6.4. MEDIA RELATIONS

On 6 January, Mr S(cid:246)derman was
Paljakka,
Sanomat.

journalist

for

interviewed by Anna
the Finnish newspaper Helsingin

Ms Frances Horsburgh of the Glasgow Herald interviewed Mr
S(cid:246)derman on 23 January on the occasion of his visit
to
Edinburgh, Scotland.

On 27 January, Ian Harden gave an interview to Mr Claude
Keiflin on behalf of La Croix about the work of the European
Ombudsman.

Mrs Eva Spira interviewed Mr S(cid:246)derman for a Swedish paper
Statstj(cid:228)nstemannen.

Journalists of the Swedish newspaper Dagens industri and of the
Finnish Kauppalehti interviewed the Ombudsman in Strasbourg,
on 17 February.

On 18 February, Mr S(cid:246)derman gave a briefing to a delegation
of 15 Danish journalists who were attending a seminar in
Strasbourg.

Ms Zornitza Venkova, a Bulgarian journalist working for
Bulgarian National Television interviewed Mr S(cid:246)derman for a
quarterly publication entitled Europ magazine, on 19 February.

On 10 March, Mrs P(cid:228)ivi Palm interviewed Mr S(cid:246)derman for
the newspaper Turun Sanomat.

The European Ombudsman’s visit to Portugal (13 to 15 April)
from the
received a broad media
Television SIC and the Portuguese newspaper DiÆrio de Not(cid:237)cias.

especially

coverage,

A press conference was organised in Brussels on 21 April
following the presentation of the 1997 Annual Report to the
Committee on Petitions. Mr Edward Newman, Vice-chairman
of
the Committee on Petitions participated in the press
conference.

On 27 April, Mr S(cid:246)derman gave a telephone interview to Mr
Seznec for the French publication 7 jours Europe.

On 29 April, Mr S(cid:246)derman was interviewed by Ms Berna G.
Harbour, journalist of the national newspaper El Pa(cid:237)s while he
was visiting the information office of the European Parliament
in Madrid.

Pedro, a Danish journalist interviewed Mr S(cid:246)derman for the
Danish paper Ekstra Bladet in Strasbourg on 12 May.

On 27 May, Mr Gilles Bessec interviewed Mr Ian Harden for
Radio France Internationale’s programme (cid:145)Accents d’Europe(cid:146).

On 29 May, the journalist Ms Jill Morrell, who was present at
the (cid:145)Focus Europe(cid:146) hearing of
the Civil Service College in
London interviewed Mr S(cid:246)derman for British Satellite News.
The interview, together with film footage from the briefing,
was then circulated throughout the world for the UK Foreign
and Commonwealth Office.

On 2 June 1998, Mr S(cid:246)derman was interviewed by the
in
newspaper Dagens Nyheter and the news agency TT,
Stockholm.

On 17 June, a German journalist Mr Michale Kalz interviewed
Mr S(cid:246)derman.

Mr S(cid:246)derman gave an interview on his role and activities to
Mrs Diane Klein for Radio Television Luxembourg, on 2 July.

On 3 July, Mr S(cid:246)derman gave a telephone interview to Mr
Jouni Tanninen for the Finnish YLE Radio.

On 9 July Mr S(cid:246)derman attended a press lunch in the EP
Information Office, London.

On 15 July, a press conference was arranged in Strasbourg
after the presentation of the annual report of the Ombudsman
to the European Parliament. The same day, Mr S(cid:246)derman gave
an interview to Mr Bj(cid:246)rn M(cid:229)nsson from the Finnish-Swedish
paper Hufvudstadsbladet.

Mrs Terttu Levonen interviewed Mr S(cid:246)derman on 11 March
for the newspaper Aamulehti.

On 17 July, Mr S(cid:246)derman was interviewed by Mr Roland
Krimm for
the Le Temps/Suisse and the Radio Suisse
Romande.

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Official Journal of the European Communities

18.10.1999

Mr Jesper Vind Jensen,
from a Danish paper Słndagsavisen,
interviewed Mr S(cid:246)derman on 22 July. The same day Mr
S(cid:246)derman was
interviewed by Ms Tiziana Di Simone,
RAI/Radio/Roma.

On 21 October, Mr S(cid:246)derman gave an interview to Greek TV
for a programme (cid:145)European Parliament and the citizen(cid:146). The
same day, he was interviewed by Mrs Muller for the German
radio iAD.

On 27 July, Mrs Christine Holzbauer-Madison interviewed the
Ombudsman for
L’AnnØe
europØenne.

French yearly magazine

the

On 29 July, Mr S(cid:246)derman gave an interview to Mr Alfredo
Sotillo, ABC/Espaæa.

Lars Str(cid:246)man, journalist from the Danish paper Europe-Posten
interviewed Mr S(cid:246)derman on 27 August.

Mr S(cid:246)derman gave an interview to Mr Markku M(cid:246)tt(cid:246)nen,
journalist for the Finnish radio YLE, on 19 October.

On 20 October, Mr Bernard Stasi, MØdiateur de la RØpublique,
and Mr S(cid:246)derman gave a joint press conference on the
occasion of the visit to Strasbourg of the French Ombudsman.

Mr Mauro Bellabarba from the Italian Rai Radio interviewed
Mr S(cid:246)derman for a daily programme concerning the European
Institutions on 22 October.

Mr S(cid:246)derman gave an interview to the Finnish-Swedish paper
Hufvudstadsbladet on 22 October.

La tØlØvision suisse romande made a programme about the
work
interviewing Mr
European Ombudsman,
S(cid:246)derman on 5 November in Strasbourg.

the

of

On 10 November, Mr S(cid:246)derman gave an interview to the
Finnish TV YLE about (cid:145)Citizen’s Europe(cid:146).

On 18 November, Mr S(cid:246)derman was interviewed for the
French Investir Magazine.

Mr Jakob Vinde Larsen interviewed Mr S(cid:246)derman for the
Commission’s monthly paper Europa on 19 November.

On 20 October, Mr Olivier Verheecke gave an interview to the
Belgian radio RTBF for the programme (cid:145)Radio 21(cid:146).

On 20 November, Mr S(cid:246)derman gave an interview to Mr
Brandon Mitchener for the Wall Street Journal.

18.10.1999

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Official Journal of the European Communities

C 300/159

ANNEXES

ANNEX A

STATISTICS CONCERNING THE WORK OF THE EUROPEAN OMBUDSMAN COVERING THE PERIOD FROM 1 JANUARY TO
31 DECEMBER 1998

1.

CASES DEALT WITH DURING 1998

1.1.

Total caseload in 1998

(cid:151) complaints and inquiries not closed on 31 December 1997

(cid:151) complaints received in 1998

(cid:151) own initiative of the European Ombudsman

1.2.

Examination of admissibility/inadmissibility completed

1.3.

Classification of the complaints

1.3.1. According to the mandate of the European Ombudsman

(cid:151) within the mandate:

(cid:151) outside the mandate:

1.3.2. Reasons for being outside the mandate

(cid:151) not an authorised complainant

(cid:151) not against a Community institution or body

(cid:151) does not concern maladministration

(cid:151) against Court of Justice or Court of First Instance in judicial role

1.3.3. Analysis of complaints within the mandate

A d m i s s i b l e c o m p l a i n t s

(cid:151) inquiries initiated

(cid:151) no grounds for inquiry

(cid:151) dealt with or being considered by Committee on Petitions: 9

(cid:151) others: 33

I n a d m i s s i b l e c o m p l a i n t s

(cid:151) author/object not identified

(cid:151) time limit exceeded

(1) Of which three own initiatives of the European Ombudsman and 199 admissible complaints.

1 617

244 (1)

1 372

1

93 %

411 (31 %)

911 (69 %)

18

844

46

3

212

170

42

199

67

6

C 300/160

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Official Journal of the European Communities

18.10.1999

(cid:151) prior administrative approaches not made

(cid:151) being dealt with or settled by a Court

(cid:151) internal remedies not exhausted in staff cases

2.

INQUIRIES INITIATED IN 1998

(170 admissible complaints and one own initiative of the European Ombudsman)

2.1.

Institutions and bodies subject to inquiries (1)

(cid:151) European Commission

(cid:151) European Parliament

(cid:151) Council of the European Union

(cid:151) others

(cid:151) European Agency for the Evaluation of Medicinal Products: 1

(cid:151) Court of Justice: 1

(cid:151) Court of Auditors: 1

(cid:151) Translation Centre for the bodies of the European Union: 1

(cid:151) European Environment Agency: 2

(cid:151) Committee of the Regions of the European Union: 1

(cid:151) Office for Official Publications of the European Communities: 2

2.2.

Type of maladministration alleged

(In some cases, two types of maladministration are alleged)

(cid:151) lack or refusal of information, transparency

(cid:151) negligence

(cid:151) unfairness, abuse of power

(cid:151) procedures, rights of defence

(cid:151) discrimination

(cid:151) avoidable delay

(cid:151) failure to ensure fulfilment of obligations (Article 169)

(cid:151) legal error

(cid:151) other maladministration

97

17

12

171

129 (75 %)

27 (16 %)

7 (4 %)

9 (5 %)

69 (30 %)

38 (16 %)

29 (13 %)

25 (11 %)

21 (9 %)

17 (7 %)

11 (5 %)

7 (3 %)

14 (6 %)

(1)

Some cases concern two or more institutions or bodies. The following institutions and bodies are the subject of the own-initiative inquiry concerning a code of good
administrative behaviour: European Parliament, Council of
the European Union, European Commission, European Court of Auditors, Economic and Social
Committee, Committee of the Regions of the European Union, European Investment Bank, European Central Bank, European Centre for the Development of
Vocational Training, European Foundation for the Improvement of Living and Working Conditions, European Environment Agency, European Agency for the
Evaluation of Medicinal Products, Office for Harmonisation in the Internal Market, European Training Foundation, European Drugs and Drug Addiction Monitoring
Centre, Translation Centre for bodies of the European Union, European Agency for Safety and Health at Work, Community Plant Variety Office, Office for Official
Publications of the European Communities.

18.10.1999

EN

Official Journal of the European Communities

3.

DECISIONS CLOSING THE FILE ON A COMPLAINT OR CONCLUDING AN INQUIRY

3.1.

Complaints outside the mandate

(cid:151) transferred

(cid:151) as petition to the European Parliament

(cid:151) to national Ombudsmen

(cid:151) 600 complainants have been advised to contact another agency:

(cid:151) national/regional ombudsman or petition a national parliament

(cid:151) to petition the European Parliament

(cid:151) the European Commission

(cid:151) Court of Justice

(cid:151) others

3.2.

Complaints within the mandate, but inadmissible

3.3.

Complaints within the mandate and admissible, but no grounds for inquiry

3.4.

Inquiries closed with reasoned decision

(An inquiry can be closed for one or more of the following reasons)

(cid:151) no maladministration found

(cid:151) with a critical remark addressed to the institution

(cid:151) settled by the institution

(cid:151) friendly solution

(cid:151) finding of maladministration with draft recommendation

(cid:151) other

4.

ORIGIN OF COMPLAINTS REGISTERED IN 1998

4.1.

Source of complaints

(cid:151) sent directly to the European Ombudsman by:

(cid:151) individual citizens: 1 237

(cid:151) companies: 60

(cid:151) associations: 63

(cid:151) transmitted by a Member of the European Parliament

(cid:151) petitions transferred to the European Ombudsman

C 300/161

1 337

911

10

7

259

80

154

1

106

199

42

185 (1)

96 (2)

29

51 (2)

4

1

9 (3)

1 360

9

3

(1) Of which two own initiatives from the Ombudsman.
(2) Of which one own initiative from the Ombudsman.
(3)

In for cases, the Ombudsman terminated his inquiry because the subject matter of the complaints also came within the competence of the Court of Auditors, which
was dealing with the matter. In two cases, the Ombudsman terminated his inquiry because the Committee on Petitions of the European Parliament was dealing with
the matter. In two cases, the Ombudsman terminated his inquiry in accordance with Article 2(7) of the Statute, because of legal proceedings in progress. In one case,
the Ombudsman terminated his inquiry because the Court of Justice and the Court of First Instance considered they were acting in their judicial role.

C 300/162

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Official Journal of the European Communities

18.10.1999

4.2.

Geographical origin of the complaints

Country

Number of complaints

Number of complaints in %

Population in EU in %

Germany

United Kingdom

France

Italy

Spain

The Netherlands

Greece

Belgium

Portugal

Sweden

Austria

Denmark

Finland

Ireland

Luxembourg

Others

148

111

196

188

197

61

45

105

69

28

18

23

52

35

19

77

11

8

14

14

14

4

3

8

5

2

1

2

4

3

1

6

21,9

15,7

15,6

15,4

10,6

4,1

2,8

2,7

2,6

2,4

2,1

1,4

1,3

0,9

0,1

(cid:151)

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Official Journal of the European Communities

C 300/163

ANNEX B

THE OMBUDSMAN’S BUDGET

Article 12 of the Financial Regulation of the European Communities provides for the Ombudsman to transmit to the European Parliament before 1
May each year an estimate of his revenue and expenditure for the following year.

The Statute of the European Ombudsman provides for the Ombudsman’s budget to be annexed to Section 1 (European Parliament) of the general
budget of the European Communities, which is published in the Official Journal of the European Communities.

Salaries, allowances and other costs related to employment are contained in Title 1 of the budget. This title also includes the cost of missions. Title 2
of the budget covers buildings, equipment and miscellaneous operating expenditure. Title 3 contains a single chapter, containing ECU 2 000, from
which subscriptions to international Ombudsman organisations are paid.

To avoid unnecessary duplication of administrative and technical staff, many of the services needed by the Ombudsman are provided by, or through,
the European Parliament under the terms of a framework agreement on cooperation between the European Parliament and the European
Ombudsman, dated 22 October 1995. The framework agreement was completed by agreements on administrative cooperation and on budgetary and
financial cooperation, signed on 12 October 1995.

Where the services provided to the Ombudsman involved additional direct expenditure by the Parliament a charge was normally made during 1998,
with payment being effected through the liaison account. Rental of offices and translation services are the largest items of expenditure dealt with in
this way.

From the beginning of 1998, the establishment plan of the Ombudsman consisted of 17 posts, one more than at the end of 1997. All the posts are
temporary.

The total amount of appropriations available in the Ombudsman’s budget for 1998 was ECU 2 777 178. Title 1 (salaries, allowances and other costs
related to employment) amounted to ECU 2 003 178. Title 2 (buildings, equipment and miscellaneous operating expenditure) amounted to
ECU 772 000. Additional appropriations of ECU 201 000 were transferred during the year from the contingency reserve of the European Parliament.
Thus, the final figure for appropriations available in 1998 was ECU 2 978 178.

The following table indicates expenditure in 1998 in terms of available appropriations committed.

Title 1

Title 2

Title 3

ECU 2 081 548

ECU 657 224

ECU 888

Total

ECU 2 739 660

Revenue consists of deductions from the remuneration of
ECU 264 421.

the Ombudsman and his staff. The amount budgeted for receipts in 1998 was

The 1999 budget

The 1999 budget, prepared during 1998, provides for an establishment plan of 23, representing an increase of six from the establishment plan for
1998. Appropriations for three of the posts have been entered in the reserve.

Total appropriations for 1999 are ECU 3 474 797. Title 1 (salaries, allowances and other costs related to employment) amounts to ECU 2 665 797.
Title 2 (buildings, equipment and miscellaneous operating expenditure) contains ECU 807 000. Title 3 contains ECU 2 000.

The 1999 budget provides for total revenue (deductions from the remuneration of the Ombudsman and his staff) of ECU 357 140.

In agreement with the competent services of the Parliament, the 1999 budget estimates were prepared on the assumption that the existing
agreements on cooperation would continue in operation for the whole of 1999. The 1999 budget also includes a (cid:145)management fee(cid:146) of ECU 156 000
to cover the costs to the European Parliament of providing services which consist solely of staff time, such as administration of contracts, salaries and

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allowances and a range of computing services. The inclusion of the management fee is a further improvement in transparency of the budget, but
does not represent any additional costs in 1999 as compared to 1998.

The 1999 budget, like those for previous years, has been prepared in the form of an Annex to the budget of the European Parliament, in accordance
with the legal provisions in force. The budget does not therefore contain a separate contingency reserve on the basis that,
if necessary, the
Ombudsman can request a transfer from the Parliament’s contingency reserve as in 1996 and 1998.

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ANNEX C

PERSONNEL

EUROPEAN OMBUDSMAN

Jacob S(cid:246)derman

SECRETARIAT OF THE EUROPEAN OMBUDSMAN

Ian Harden
Head of Secretariat
Tel. (33-3) 88 17 2384

Peter Dyrberg
Principal Legal Adviser
Brussels Antenna (cid:151) EAS/104
Tel. (32-2) 284 2003

JosØ Mart(cid:237)nez Arag(cid:243)n
Principal Legal Adviser
Tel. (33-3) 88 17 2401

Olivier Verheecke
Legal officer
Tel. (33-3) 88 17 5346

Vicky Kloppenburg
Legal officer
Brussels Antenna (cid:151) EAS/124 (from 1.4.1998)
Tel. (32-2) 284 2542

Benita Broms
Legal officer
Tel. (33-3) 88 17 2423

Xavier Denoºl
Trainee (until 31.1.1998)
Auxiliary legal officer (from 1.2.1998)
Tel. (33-3) 88 17 2422

Ida Palumbo
Trainee (until 31.1.1998)
Auxiliary legal officer (from 1.2.1998)
Temporary agent (from 23.5.1998)
Tel. (33-3) 88 17 2385

Alessandro Del Bon
Trainee (from 1.3.1998)
Auxiliary legal officer (from 1.10.1998)
Tel. (33-3) 88 17 2382

Ilta Helkama
Press officer
Tel. (33-3) 88 17 2398

Ben Hagard
Internet communications officer (from 16.2.1998)
Tel. (33-3) 88 17 2424

Panayotis Thanou
Finance officer (until 15.4.1998)

Alexandros Kamanis
Finance officer (from 1.9.1998)
Tel. (33-3) 88 17 2403

Daniela Tirelli
Assistant (until 31.3.1998)

Nathalie Christmann
Administrative officer
Tel. (33-3) 88 17 2394

Ursula Garderet
Secretary
Brussels Antenna - EAS/103
Tel. (32-2) 284 2300

Anna Ruscitti
Secretary
Brussels Antenna - EAS/102
Tel. (32-2) 284 6393

Murielle Richardson
Secretary of the European Ombudsman
(on leave 14.7.1998 to 4.1.1999)
Tel. (33-3) 88 17 2388

Isabelle Foucaud
Secretary
Tel. (33-3) 88 17 2391

Stephanie Kunze
Secretary
Acting secretary to the European Ombudsman
(from 14.7.1998)
Tel. (33-3) 88 17 2388

Isabelle Lecestre
Auxiliary secretary (from 1.3.1998)
Tel. (33-3) 88 17 2413

Marie-AndrØe Schwoob
Auxiliary secretary (from 1.10.1998)
Tel. (33-3) 88 17 2383

Patrick Schmitt
Usher (on leave from 1.8.1998)

Charles Mebs
Usher (from 1.9.1998)
Tel. (33-3) 88 17 7093

Hanna-Mari Anttilainen
Trainee (until 31.1.1998)

Henrik Leffler
Trainee (1.2.1998 to 31.7.1998)

Maria Engleson
Trainee (from 1.9.1998)
Tel. (33-3) 88 17 2402

Peter Bonnor
Trainee (from 15.9.1998)
Brussels Antenna (cid:151) EAS/105
Tel. (32-2) 284 3897

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HOW TO CONTACT THE EUROPEAN OMBUDSMAN

STRASBOURG

(cid:151) By post

The European Ombudsman
1, av. du PrØsident Robert Schuman
BP 403
F-67001 Strasbourg Cedex

(cid:151) By telephone

(33-3) 88 17 2313
(33-3) 88 17 2383

(cid:151) By fax

(33-3) 88 17 9062

(cid:151) By e-mail

euro-ombudsman@europarl.eu.int

(cid:151) Website

http://www.euro-ombudsman.eu.int

BRUSSELS

(cid:151) By telephone

(32-2) 284 2180

(cid:151) By fax

(32-2) 284 4914