Summary of decision on complaint 2403/2008/OV against the European Commission

On 27 September 2007, the complainant, a Dutch citizen residing in Germany who receives Dutch unemployment benefit, complained to the Commission about an alleged discriminatory practice against non-German citizens by the public broadcasting company for the south-west of Germany as regards exemption from TV and radio licence fees. Following the Ombudsman's intervention, the Commission sent two holding replies to the complainant in December 2007 and July 2008. However, having received no substantive reply, the complainant again complained to the Ombudsman in July 2008. He alleged that the Commission failed properly to deal, as regards both procedure and substance, with his complaint of 27 September 2007.

As regards the substance, the Commission explained in its opinion that the Dutch unemployment benefit received by the complainant (which is not means-tested) was not comparable with the German benefit which entitles its recipients to an exemption from TV and radio licence fees in Germany (and which is means-tested). In the Commission's view, there was therefore no infringement of EU rules on the free movement of persons. The Ombudsman concluded that the Commission appeared correctly to have analysed and explained the substantive issues which arose in this case and therefore found no instance of maladministration.

As regards procedure, the Commission argued that it had dealt with the case within a reasonable time and that it had informed the complainant of its conclusion that there was no infringement. The Ombudsman first noted that the complainant's complaint was transferred from one Commission service to another on three occasions before being dealt with. He concluded that the Commission had failed to abide by the provisions of the Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law, more particularly as regards (i) the registration of complaints, (ii) the sending of an acknowledgement of receipt, and (iii) the closure of the case. He therefore made a draft recommendation to the Commission that it should (i) acknowledge that it failed to respect the Communication, (ii) apologise for this omission, and (iii) take the necessary measures to ensure that it will comply with the Communication when dealing with cases in the future.

The Commission both acknowledged that it had failed to respect points 3 and 4 of the Communication and apologised for its failure to do so. However, it did not explicitly acknowledge that it failed to respect point 10 of the Communication. Neither did it apologise for its failure to do so. The Ombudsman therefore concluded that his draft recommendation had been partly accepted by the Commission. As regards the third part of the draft recommendation, the Ombudsman noted that, in the meantime, he had opened an own-initiative inquiry into the relationship between the new EU Pilot and the procedural guarantees set out in the Communication. He therefore concluded that no further inquiries into this matter were justified.