THE BACKGROUND TO THE COMPLAINT

1. The Agreement between the European Union, the European Community and the Swiss Confederation on the latter's association with the implementation, application and development of the Schengen acquis[1] ('the Agreement') was signed on 26 October 2004 and entered into force on 1 March 2008. The Agreement provides for the integration of the Swiss Confederation into the Schengen Area. It has the positive consequence that persons arriving into the country from other Schengen States are no longer subjected to border controls.

2. In accordance with Article 15(1) of the Agreement, in order for this integration to occur, Switzerland had to implement the provisions of the Schengen acquis set out in Annexes A and B of the Agreement "on a date to be fixed by the Council, acting by unanimity of its Members ... and after having satisfied itself that the preconditions for implementation of the relevant provisions have been fulfilled by Switzerland and that controls at its external borders are effective" (emphasis added).

3. In compliance with Annex B of the Agreement, Switzerland had to apply, as from the date set by the Council, Council Regulation (EC) No 539/2001 of 15 March 2001 which listed the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement[2]. The evaluation procedures to verify whether the visa regime of Switzerland was in compliance with Council Regulation 539/2001 were launched on 1 March 2008.

4. After establishing that the Swiss Confederation had fullfilled the conditions for the application of the Schengen acquis relating to land borders, police cooperation, the Schengen Information System and visas, the Council adopted Decision 2008/903/EC of 27 November 2008[3] ('the Decision'). As a result of the Decision, all the provisions referred to in Annexes A and B of the Agreement would apply to the Swiss Confederation from 12 December 2008 onwards.

5. On 27 November 2008, the complainant booked a Christmas holiday to Switzerland for his family. As his partner and her daughter are both Colombian nationals, the complainant checked on the website of the relevant airline whether there were any special visa requirements for them to enter Switzerland. No such requirements were indicated at that time.

6. On 20 December 2008, the complainant's partner and her daughter were refused permission to board their plane because they did not have the required Schengen visas. As a result, the complainant and his family were not able to go on their holiday.

7. By e-mail of 22 December 2008, the complainant addressed the Council's press office concerning the matter, but received no reply.

THE SUBJECT MATTER OF THE INQUIRY

8. In his letter of 19 February 2009 opening the inquiry, the Ombudsman asked the Council to provide an opinion on the following allegation and claim:

9. The complainant alleged that the Council had been negligent by failing to provide for a sufficiently long transitional period before bringing into force, in so far as Switzerland is concerned, the visa requirements foreseen by the Schengen Agreement. He also alleged that the Council had failed to ensure that persons affected by its Decision of 27 November 2008 were informed about the consequences of this decision in good time.

10. The complainant claimed that the Council should compensate him for the loss suffered.

THE INQUIRY

11. On 13 January 2009, the complainant turned to the Ombudsman. The complaint was forwarded to the Council for an opinion, which it sent on 24 March 2009. The opinion was then forwarded to the complainant, who sent his observations on 14 April 2009. On 22 April 2009, the Ombudsman received further observations from the complainant.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation concerning the starting date for the full application of the Schengen acquis to the Swiss Confederation

Arguments presented to the Ombudsman

12. The complainant pointed out that there were only 15 days between the moment the Council adopted its Decision (27 November 2008) and the moment the Decision became applicable (12 December 2008). In the complainant's view, such a short period of notice was "ridiculous" and "an extremely irresponsible action causing many people to suffer". In his opinion, the Council should have given at least six months' notice and ensured that the Decision became applicable after the ski season.

13. In its opinion, the Council recalled that, under Article 195 of the EC Treaty, the Ombudsman may only investigate instances of maladministration in the activities of the Community institutions or bodies. The Council pointed out that "maladministration" must relate to the activities of an institution or body acting in its administrative capacity, and that, when the institutions act in their legislative or political capacity, such activities fall outside of the Ombudsman's mandate. This was reinforced by the Ombudsman's interpretation of the limits of his competences. In his decision in case 865/2008/OV, the Ombudsman stated that "[a]ccording to Article 195 of the EC Treaty, the Ombudsman can only investigate instances of maladministration. He is therefore not entitled to examine the merits of Community legislation."

14. The Council also referred to the complainant's allegation, namely, that the Council Decision adversely affected him in so far as it failed to provide a sufficiently long transitional period for the full application of the provisions of the Schengen acquis. In this regard, the Council submitted that the allegation did not relate to the Council's administrative practice, but rather to its legal and political activities. The Council more specifically argued that the issue of the deferment of the full application of the Decision fell within its legislative powers, under which it enjoys a wide amount of discretion. It was not an administrative matter and could not, therefore, constitute an instance of maladministration. In the Council's view, the issue thus did not fall under the Ombudsman's mandate. Nevertheless, it submitted comments on the substance of the allegation.

The Ombudsman's assessment

15. Article 2(2) of the Statute of the European Ombudsman provides that "[a]ny citizen of the Union ... may ... refer a complaint to the Ombudsman in respect of an instance of maladministration..." The Ombudsman has constantly interpreted this Article to mean that he can only investigate complaints concerning possible instances of maladministration. He cannot investigate complaints which concern the merits of Community legislation or political decisions taken by the Community institutions or bodies. In the present case, the date of 12 December 2008 for the full application of the Schengen acquis to the Swiss Confederation was set out in Article 1 of the Council Decision[4]. It also appears that the very purpose of that Decision was to set such a date. The complainant's allegation, which in fact questions whether the date chosen was appropriate, therefore concerns the merits of the Council's Decision. The Ombudsman notes that, on 22 December 2008, the complainant sent en e-mail to the Council's Press Office concerning his complaint, but did not receive a reply. When opening the inquiry, the Ombudsman could thus not take into account the arguments which the Council later presented in its opinion. However, on the basis of the Council's explanations, the Ombudsman agrees that the complainant's first allegation lies outside of his mandate.

16. In his observations, the complainant submitted that, whoever provided that the visa change envisaged by the said Council Decision, adopted on 27 November 2008, would be implemented only 15 days later, that is, on 12 December 2008 was fully responsible for the fact that his family and many others lost their holidays. The complainant stressed that he wanted a formal written apology from the Council and that, in the absence of such an apology, he would like to pursue the matter with the Ombudsman to the fullest extent possible.

17. Given that the complainant's claim for an apology is based on his allegation concerning the date for the full application of the Schengen acquis to the Swiss Confederation, this claim is also outside the Ombudsman's mandate.

B. Alleged failure to inform and the claim for compensation

Arguments presented to the Ombudsman

18. The complainant submitted that when, on 27 November 2008, the Council Decision was finalised, "the EU could have told all UK airlines to contact all customers travelling to Switzerland about this". The complainant added that, if this had occurred, he and his family could have cancelled their holiday or applied for the appropriate Schengen visas. The complainant felt that the EU's failure to do so "looks like negligence on their part to me". He therefore considered that the EU was responsible for the loss of his family holiday and claimed compensation. The complainant underlined that his family's flights and Swiss train tickets would not be refunded. In addition, his credit card would most likely be debited by their hotel due to the late cancellation. The complainant pointed out that his holiday insurance did not cover visa-related problems, even though he "made no mistake". As regards the amount, the complainant considered that his approximate loss could reach GBP 3 000.

19. In its opinion, the Council argued that the complainant's second allegation was also inadmissible, since it did not relate to the scope of the Council's activities. It argued that the dissemination in the UK of information on the forthcoming changes to the visa requirements applicable in Switzerland was a matter for the Swiss and British authorities, not for the Council.

20. The Council further stated that the integration of the Swiss Confederation in the Schengen Area brought an end to a lengthy process which was started in 2004, when the Agreement was signed. The preparations for the application of the Schengen acquis had, at the very latest, begun in Switzerland with the start of the evaluation process on 1 March 2008.

21. The Council regretted that the complainant could not obtain accurate information on the applicable visa requirements in Switzerland before the date of his travel on 20 December 2008. It noted, however, that the change in the visa requirements for third-country nationals brought about by Switzerland's joining of the Schengen area was foreseeable and had, in fact, been publicised by the Swiss authorities several months earlier. Information on the introduction of the Schengen arrangements and on the latest developments had regularly been made available on the website of the Federal Office for Migration in Switzerland in the form of fact sheets, frequently asked questions, and so on. As from mid-October 2008, the Swiss Embassy in London posted a notice on its website concerning Switzerland's impending participation in the Schengen area and the reintroduction of visa requirements for third-country nationals with UK residence permits. The Embassy also briefed travel agents and airlines about the changes and issued free visas to third-country nationals with UK residence permits until 12 December 2008. Finally, since August 2008, the Federal Office for Migration had been in regular contact with those in charge of the Travel Information Manual, which is published by the International Air Transport Association and provides the leading source of worldwide information on aviation travel regulations.

22. In light of the foregoing, the Council considered that, with due diligence, the complainant could have ascertained the forthcoming changes in the law relating to the visa requirements applicable in Switzerland.

23. In his observations, the complainant stated that the Council had completely missed the point. He argued that the fact that the Swiss Embassy posted information on its website was irrelevant because many travellers could not even find the Swiss Embassy website, which is part of a much bigger website. The complainant also wondered why one should have to contact the Swiss Embassy when the major airlines give very detailed visa information, which is supposed to be accurate. He submitted that many travellers rely on this information and argued that it was the Council's responsibility to assess all the repercussions of the legislation it enacts. In his view, the Council should have contacted the major airlines well in advance to inform them of the change in visa legislation so that their websites could be updated in good time. He added that the Swiss and British authorities, as well as the airlines were not to blame at all and in fact did everything they could to help travellers. However, since they did not receive information concerning the concrete date for implementation until 27 November 2008, there was nothing they could do until that time except make ambiguous warnings based on incomplete information from the Council. The complainant found it ridiculous that the visa change had been pending for four years, yet when it finally came, there was a transitional period of only 15 days.

The Ombudsman's assessment

24. The Council argues that the complainant's second allegation is also inadmissible because it does not relate to the scope of its activities. This argument is not convincing, since it mentions the substance of the case but does not explain why the Ombudsman would not have the power to examine whether a duty to inform existed and, if so, whether the Council complied with it. The Ombudsman therefore considers that the present allegation is admissible.

25. The Ombudsman notes that that the Council Decision had important repercussions for persons travelling to Switzerland. In his view, it was therefore important that the Council provide sufficient and timely information about this change.

26. The Council has taken the position that it was for the Swiss and British authorities to provide the necessary information. The Ombudsman therefore considers that he only needs to examine whether the Council itself had a duty to provide information on the accession of the Swiss Confederation to the Schengen area and whether any such duty was properly fulfilled if the information provided by the Swiss and British authorities was insufficient.

27. It appears that the changes in the visa scheme for travelling to Switzerland were not introduced unexpectedly. The Swiss authorities had already drawn attention to the forthcoming changes months in advance. It also appears that information on the introduction of the Schengen arrangements was made available on the websites of the Swiss Federal Office for Migration (http://www.bfm.admin.ch/bfm/en/home.html) and the Swiss Embassy in London (http://www.eda.admin.ch/london), which can be easily found using the Google search engine. The Council moreover stated that the Swiss Embassy in London had briefed travel agents and airlines about the changes and that the Swiss Federal Office for Migration had been in regular contact with the people in charge of the Travel Information Manual. There is no reason to doubt that this information, which has not been challenged by the complainant, is correct. Given these circumstances, it appears that sufficient information was made available to the airlines concerned. The airlines were therefore in a position to inform citizens wishing to travel to Switzerland of the visa requirements resulting from the country's accession to the Schengen Area. It is clear that information on the actual change could only be provided once the Council Decision of 27 November 2008 had been adopted. Given that the complainant bought his tickets on the very same day the Council Decision was adopted, it is hardly surprising that no information on the actual change was available on the airline's website he appears to have checked before booking. However, airlines were clearly in a position to inform persons wishing to travel to Switzerland of the changes that would arise once the Swiss Confederation had acceded to the Schengen Area. It should be noted that, in his observations, the complainant himself referred to warnings (albeit "ambiguous") given by airlines.

28. On the basis of the above, the Ombudsman considers that no maladministration by the Council has been established regarding the complainant's allegation of insufficient information.

29. In light of the conclusion set out in the preceding paragraph, the Ombudsman considers that the complainant's claim for compensation from the Council is unfounded.

30. In his observations, the complainant argued that the airlines were not to blame for the problems that had arisen. However, given that the Swiss authorities appear to have provided sufficient information on the relevant change to travel agents and airlines, the complainant might nevertheless wish to investigate whether he has any rights arising from his contract with the travel agent or airline from which he bought his tickets.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:

The complainant's first allegation is outside of the Ombudsman's mandate.

No maladministration by the Council has been found regarding the complainant's second allegation and claims.

The complainant and the Council of the European Union will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 30 June 2009

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[1] OJ 2008 L 53, p. 52.

[2] As last amended by Council Regulation (EC) No 453/2003 of 6 March 2003, OJ 2003 L 69, p. 10.

[3] Council Decision 2008/903/EC of 27 November 2008 on the full application of the provisions of the Schengen acquis in the Swiss Confederation, OJ 2008 L 327, p. 15.

[4] For the avoidance of doubt, the Ombudsman would like to point out that the relevant date in the present complaint is not the date the Council Decision entered into force, which was the date of its publication in the Official Journal (5 December 2008, see Article 3 of the Decision), but rather the date of 12 December 2008 mentioned in Article 1 of the Decision, which is the date for the full application of the Schengen acquis to the Swiss Confederation.