European Ombudsman

Dear Mr R.,

On 20 November 2006, you submitted a complaint to the European Ombudsman against the European Commission concerning the alleged failure of the Commission to investigate properly your complaint into the allegedly erroneous transposition of Directive 2002/92/EC (the "Insurance Mediation Directive") into Irish law.

On 15 December 2006, I forwarded the complaint to the President of the European Commission, requesting it to provide me with its opinion by 31 March 2007.

On 3 January 2007 you sent me additional documents, which I forwarded to the Commission.

On 13 February 2007 and 20 February 2007, you contacted my services by telephone in relation to your complaint. My services sent you emails in relation to these telephone conversations on 14 and 21 February 2007 respectively.

On 23 April 2007, given that the Commission had failed to submit its opinion by the deadline set out in my letter of 15 December 2006, I informed the Commission that I wished to receive its opinion by 31 May 2007. I informed you accordingly on 23 April 2007.

On 7 May 2007, the Commission sent me its opinion, which I forwarded to you with an invitation to make observations.

You sent me your observations on 31 May 2007.

You sent me further information on 4 June 2007 and 5 July 2007.

You contacted my services by telephone on 9 September 2007.

On 12 September 2007, the Commission sent me further correspondence by email, which I forwarded to you with an invitation to make observations.

By mail and subsequent copy by fax, sent on 26 September 2007, you provided me with your observations concerning the Commission's further correspondence.

You sent me further observations by email on 27 September 2007.

You contacted my services by telephone and email on 17 October 2007 and 18 October 2007 respectively.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The relevant facts, according to the complainant, can be summarised as follows:

The complainant wrote to the European Commission on 27 June 2005 setting out his concerns in relation to the transposition of the Insurance Mediation Directive (Directive 2002/92/EC) into Irish law.

The complainant maintained that insurance intermediaries in Ireland are subject to legislation which was originally adopted by the Irish authorities to transpose the Third Life Assurance Directive (Directive 92/96/EEC).

The complainant also argued that Irish law, namely, the Investment Intermediaries Act, 1995, states that all insurance policies must be classified as "investment instruments". As a result, all sellers of insurance policies must be classified as "investment intermediaries", rather than as "insurance intermediaries". Given that all sellers of insurance policies in Ireland must be classified as "investment intermediaries", they must, in Ireland, comply with the more onerous legislation designed to regulate the sale of investment products.

The complainant also referred to the fact that Irish legislation transposing the Insurance Mediation Directive wrongly excluded from the application of insurance mediation rules those credit institutions which acted as insurance intermediaries.

There are, the complainant therefore argues, no national measures in Ireland which adequately transpose the Insurance Mediation Directive.

The complainant maintained detailed correspondence with the European Commission as regards the above-outlined issues. In addition, the complainant attended a meeting with DG Internal Market and Services held on 8 December 2005. He was thereafter informed, by letter dated 17 January 2006, that the European Commission was not planning to initiate infringement proceedings against Ireland on the grounds that it was not possible, according to the Commission, to prove that any infringement had been committed by Ireland in relation to the transposition of the Insurance Mediation Directive. The complainant pointed out, however, that the letter went on to state that the Irish authorities were aware of "some internal difficulties mainly related to the interaction between the new Regulation transposing the Insurance Mediation Directive with other provisions in Irish law." The letter stated that the Commission would "follow this up" with the Irish authorities.

The complainant noted that the Commission wrote an email to the complainant on 9 June 2006 informing him that it had now written to Ireland in relation to the transposition of the Insurance Mediation Directive and would await replies from that Member State before deciding whether any further action was required. The Commission's email went on to point out that it appeared that Ireland had included insurance intermediaries in legislation which had been adopted in relation to the Investment Services Directive and that "secondary legislation is planned [by the Irish authorities] to take care of the inconsistencies following from this approach."

Generally, the complainant argued that Irish law either over-regulates or incorrectly regulates the activities of insurance intermediaries. According to the complainant, the imposition of additional requirements on insurance intermediaries under Irish law (other than those set out in the Insurance Mediation Directive) has resulted in increased costs for insurance intermediaries (for example, increased accountancy costs, training costs and increased levies imposed by regulatory authorities).

The Ombudsman understood the complainant to allege, in summary, that the European Commission failed to investigate properly the alleged failure of Ireland to transpose the Insurance Mediation Directive into Irish law.

The Ombudsman understood the complainant to claim, in summary, that the European Commission should investigate properly the alleged failure of Ireland to transpose the Insurance Mediation Directive into Irish law with a view to determining whether it is appropriate to commence infringement proceedings against Ireland.

The Ombudsman also asked the Commission to confirm whether the complaint submitted to the Commission was dealt with in accordance with the Commission's Communication to the European Parliament and the European Ombudsman on Relations with the Complainant in Respect of Infringements of Community Law(1).

THE INQUIRY

The European Commission's opinion in relation to the complaint can be summarised as follows:

The complainant wrote to the European Commission on 27 June 2005 concerning an alleged overregulation of insurance intermediaries as a result of the incorrect implementation of European insurance legislation in Ireland (namely, the Third Life Assurance Directive (Directive 92/96/EEC) and the Insurance Mediation Directive (Directive 2002/92/EC)). The complainant's letter was not registered as a formal complaint by the European Commission since, according to the opinion of the Commission, it did not contain a "tangible indication" of a breach of Community law by Ireland.

On 28 July 2005, a reply was sent to the complainant indicating that the Third Life Assurance Directive does not apply to insurance intermediaries in Ireland as alleged by him. It was also explained that, as the Insurance Mediation Directive provides for minimum harmonisation, a potential over-regulation of small undertakings is a matter to be rectified by national authorities. Member States are free to add extra requirements to those foreseen in the Directive. It was also noted that the Commission was in the process of examining the national measures implementing the Insurance Mediation Directive in Ireland.

On 25 October 2005, the complainant replied to the letter stating that insurance intermediaries in Ireland remained subject to the Third Life Assurance Directive.

On 8 December 2005, the responsible service of DG MARKT organised a meeting with the complainant in order to clarify any remaining concerns of his complainant. In the meeting, the fact that the Irish legislation transposing the Insurance Mediation Directive wrongly excluded from the application of insurance mediation rules those credit institutions which acted as insurance intermediaries was raised. During a check on the implementation of the Insurance Mediation Directive in Ireland, the Commission's services subsequently verified that this allegation was correct. For this reason, and since also other issues regarding the transposition of the Insurance Mediation Directive in Ireland needed to be clarified, a so-called "pre-226" letter was sent to the Irish authorities on 11 April 2006. In their reply of 19 May 2006 to the"pre-226" letter, the Irish authorities made a commitment to rectify the errors.

The Commission notes, in this regard, that the complainant's correspondence with the Commission should have been officially registered as a complaint at this time. The Commission regrets the fact that it failed to do so. This situation has been now remedied and the complaint was officially registered by the Secretariat-General under 2007/4071 on 26 January 2007(2). The Commission states, in the acknowledgement of receipt, that the complainant will be informed of the outcome of the investigation of his complaint.

Following the meeting, the complainant asked for the issues discussed to be confirmed in writing. For this reason, a letter was sent to him on 17 January 2006. Subsequently, there were a number of contacts between the Insurance and Pensions Unit of the Commission and the complainant (e-mails of 9 June 2006 and 14 September 2006). As Irish insurance intermediaries have also been subject to national legislation transposing, first, the Investment Services Directive (Directive 93/22/EEC), and then the Directive on Markets in Financial Instruments (Directive 2004/93/EC), the Securities Markets Unit of DG MARKT was also involved in the correspondence with the complainant.

Lastly, the complainant wrote to Commissioner McCreevy on 25 October 2006. The letter did not contain new information to suggest that Ireland has not correctly implemented the Insurance Mediation Directive. This was also reported to the complainant by e-mail dated 4 December 2006.

As regards the argument put forward by the complainant that the activities of insurance intermediaries in Ireland continue to be regulated by the Insurance Act 2000, which is not an appropriate legal instrument to give effect to the Insurance Mediation Directive, this is not correct since Ireland has adopted a special national measure implementing the Insurance Mediation Directive. The Irish authorities also confirmed that insurance intermediaries in Ireland are subject to the Insurance Mediation Regulation 2005 (as well as to the Investment Intermediaries Act 1995).

While the complainant's argument that Irish law applies to insurance products legislation which is designed to regulate investment products is correct, it does not infringe the applicable legal rules. While insurance policies are not considered "investment products" under the Investment Services Directive and the Directive on Markets in Financial Instruments, national authorities are, however, not prevented, by the Investment Services Directive and the Directive on Markets in Financial Instruments, from choosing to define, under national law, insurance polices as investment products. The Commission went on to point out that it is for Member States to choose both the form and method to transpose Directives into the national legal order.

The Insurance Mediation Directive was adopted under the principle of "minimal harmonisation". Thus, it left considerable autonomy for Member States to regulate details. Indeed, certain Member States have adopted a variety of national rules which the Insurance Mediation Directive did not foresee. This has led to situations in some Member States, for example in Ireland, where companies or individuals may feel overregulated. However, it is the Member States, and not the Commission, that are responsible for these additional effects. Any remedy of those effects under Community law is, therefore, beyond the remit of the Commission.

As regards the argument that secondary legislation is planned by the Irish authorities in order to remedy inconsistencies in its approach to the transposition of the Insurance Mediation Directive, the Commission had indeed been informed by the Irish authorities that a revision of the Irish legislation is in the pipeline. This revision is designed to resolve the situation whereby insurance intermediaries are subject both to the Insurance Mediation Regulation 2005 and the Investment Intermediaries Act 1995.

The intention is that insurance intermediaries will be subject only to the new revised Insurance Mediation Regulation. According to the Commission, this is a good development, as it increases legal clarity for insurance intermediaries in Ireland, even though this situation has been neither contrary to the Insurance Mediation Directive, nor to the Investment Services Directive or the Markets in Financial Instruments Directive.

The process of adoption of the revised Irish law implementing the Insurance Mediation Directive has been monitored by the Commission's services. The law was awaiting the signature of the Finance Minister and should, in the Commission's opinion, take legal effect as of May 2007.

As regards the argument put forward by the complainant that, although the Commission declared that it would follow up certain anomalies which the Irish authorities had identified in the Irish legislation purporting to transpose the Insurance Mediation Directive, it had thus far refrained from actually doing so, the Commission again pointed out that the Irish authorities are in the process of adopting the revised Insurance Mediation Regulation, which will make insurance intermediaries subject to a single legal legislative act (and not subject to the Investment Intermediaries Act). This may have been considered as a factual "anomaly" even though it could not be considered to be an incorrect implementation of the Insurance Mediation Directive, justifying the beginning of infringement proceedings under Community law.

The complainant's observations in relation to the European Commission's opinion can be summarised as follows:

The complainant states that insurance intermediaries in Ireland are still regulated under legislation transposing the Third Life Directive and the Investment Services Directive. He states that this is confirmed by the Irish Financial Services Regulator in its letter to him dated 19 December 2006. It is thus the complainant's understanding that the Irish government reused, or gave "further effect", to the Third Life Directive 92/96/EEC and the Investment Services Directive 93/22/EEC in order also to regulate insurance intermediaries. He claims that such an approach is contrary to the "objectives" of both Directives.

As a result, insurance intermediaries are subject to the rules set out in the Third Life Directive regarding prudential supervision, capital adequacy, solvency requirements and conditions of operation. These requirements were only intended to apply to insurance companies, and not to insurance intermediaries.

The complainant, in this respect, submits that Ireland is in breach of Community law, since legislation which had been adopted for the purposes of complying with the Third Life Directive, has subsequently been amended in a way that is contrary to the "objectives" of that directive.

Similarly, the Irish government amended the Investment Intermediaries Act 1995, which was originally adopted to transpose the Investment Services Directive, so that it also covered all insurance policies.

As a result of the above, current Irish Law does not, according to the complainant, provide for "legal clarity", nor does it "establish an actionable legal position for individuals".

The complainant also states that the Commission's opinion confirms that the Irish government excluded all credit institutions (that is, banks and building societies) from the Insurance Mediation Directive. As such, the Commission confirms that the Insurance Mediation Directive was not properly transposed into Irish law.

Despite the above, no warning or infringement proceedings have been issued against Ireland for their failure to meet the minimum harmonisation standards as imposed by the Insurance Mediation Directive.

The complainant understands that some leeway needs to be allowed as regards the implementation of Directives, but Ireland has exceeded the "bounds of professional discrimination". He states that to classify certain insurance products, such as endowment savings policies, as "investment instruments" might be understandable, but it is beyond the bounds of common sense to classify as "investment instruments" household insurance, aviation insurance, marine insurance, bovine insurance, equestrian insurance, car insurance and personal accident insurance.

The complainant confirmed, in a telephone correspondence with Ombudsman dated 9 September 2007, that, to date, Ireland had not, despite its commitment to do so by May 2007, adopted the necessary legislation to rectify the anomalies present in the Irish legislation.

The Commission contacted the Ombudsman's services by email on 12 September 2007 in order to inform the Ombudsman's services as regards the current state of affairs with respect to the implementation in Ireland of the Insurance Mediation Directive. The Commission stated that it has been recently informed by the Irish authorities that the adoption of the revised national rules implementing the Insurance Mediation Directive was postponed until autumn 2007 (October/November). According to the information the Commission received from the Irish Finance Ministry, banks mediating insurance products will be included in the scope of application of the revised Regulations. The Commission also stated that, in addition, the issue of possible overregulation of intermediaries in Ireland should be settled by the revised rules.

The Commission stated that it will keep the Ombudsman informed of developments.

The complainant's observation in relation to the further opinion of the European Commission can be summarised as follows:

The complainant stated that the e-mail of 12 September 2007 confirms that, contrary to Community Law, Ireland omitted banks and their insurance mediation products, from the Insurance Mediation Directive legislation. In this regard the Commission failed to notice the omission, failed to act on his complaint for over 2 years and failed to enforce Community Law and the Treaty. In this respect, he pointed out that, while the competent Commissioner confirmed to him, on 4 December 2006, that Ireland had correctly implemented the Insurance Mediation Directive, the Irish authorities are now contradicting this statement of fact.

The complainant pointed out that, while it is laudable that the Irish Authorities are eventually going to rectify errors and omissions within the legislation transposing the Insurance Mediation Directive and will deal with the issue of overregulation of insurance intermediaries, it is very regrettable that the Commission did not see fit to protect the rights of insurance intermediaries.

THE DECISION

1.1 The complainant wrote to the European Commission on 27 June 2005 setting out his concerns in relation to the transposition of the Insurance Mediation Directive (Directive 2002/92/EC) into Irish law. The complainant maintained that insurance intermediaries in Ireland are subject to legislation which was originally adopted by the Irish authorities to transpose the Third Life Assurance Directive (Directive 92/96/EEC).

The complainant also argued that Irish law, namely the Investment Intermediaries Act, 1995, states that all insurance policies must be classified as "investment instruments". As a result, all sellers of insurance policies must be classified as "investment intermediaries" rather than as "insurance intermediaries". Given that all sellers of insurance policies in Ireland must be classified as "investment intermediaries", they must, in Ireland, comply with the more onerous legislation designed to regulate investment products.

There are, the complainant therefore argued, no national measures in Ireland which adequately transpose the Insurance Mediation Directive.

1.2 The complainant also referred to the fact that Irish legislation transposing the Insurance Mediation Directive wrongly excluded from the application of insurance mediation rules those credit institutions which acted as insurance intermediaries.

1.3 The complainant maintained detailed correspondence with the European Commission as regards the above-outlined issues. In addition, the complainant attended a meeting with DG Internal Market and Services on 8 December 2005. He was thereafter informed, by letter dated 17 January 2006, that the European Commission was not planning to initiate infringement proceedings against Ireland on the grounds that it was not possible, according to the Commission, to prove that any infringement had been committed by Ireland in relation to the transposition of the Insurance Mediation Directive. The complainant pointed out, however, that the letter went on to state that the Irish authorities were aware of "some internal difficulties mainly related to the interaction between the new Regulation transposing the Insurance Mediation Directive with other provisions in Irish law." The letter stated that the Commission would "follow this up" with the Irish authorities.

1.4 The complainant noted that the Commission then wrote an email to the complainant on 9 June 2006 informing him that it had now written to Ireland in relation to the transposition of the Insurance Mediation Directive and would await replies from that Member State before deciding whether any further action was required. The email of the Commission went on to point out that it appeared that Ireland had included insurance intermediaries in legislation which had been adopted in relation to the Investment Services Directive and that "secondary legislation is planned [by the Irish authorities] to take care of the inconsistencies following from this approach."

1.5 Generally, the complainant argued that Irish law either over-regulates or incorrectly regulates the activities of insurance intermediaries. According to the complainant, the imposition of additional requirements on insurance intermediaries under Irish law (other than those set out in the Insurance Mediation Directive) has resulted in increased costs for insurance intermediaries (for example, increased accountancy costs, training costs and increased levies imposed by regulatory authorities).

1.6 The Ombudsman understood the complainant to allege, in summary, that the European Commission failed to investigate properly the alleged failure of Ireland to transpose the Insurance Mediation Directive into Irish law.

The Ombudsman understood the complainant to claim, in summary, that the European Commission should investigate properly the alleged failure of Ireland to transpose the Insurance Mediation Directive into Irish law with a view to determining whether it is appropriate to commence infringement proceedings against Ireland.

1.7 The Ombudsman also asked the Commission to confirm whether the complaint submitted to the Commission was dealt with in accordance with the Commission's Communication to the European Parliament and the European Ombudsman on Relations with the Complainant in Respect of Infringements of Community Law(3).

1.8 In its opinion, the Commission stated that, while Irish law does apply to insurance products legislation which is designed to regulate investment products, this regulatory framework does not infringe the applicable legal rules. In effect, while, under the Investment Services Directive and Markets in Financial Instruments Directive, it is not obligatory to classify insurance policies as "investment products", national authorities are not prevented, by the Investment Services Directive and Markets in Financial Instruments Directive, from choosing to classify insurance polices as investment products.

1.9 In the same opinion, the Commission went on to argue that the Insurance Mediation Directive was adopted under the principle of "minimal harmonisation". Thus, in accordance with this principle, Member States are left considerable autonomy to regulate details. Indeed, certain Member States have adopted a variety of additional national rules which they were not obliged to adopt by the Insurance Mediation Directive. However, it is the Member States, and not the Commission, that are responsible for these additional effects. Any remedy of those effects is, therefore, beyond the remit of the Commission.

1.10 As regards the argument put forward by the complainant that Ireland wrongly excluded from the application of the insurance mediation rules those credit institutions which also acted as insurance intermediaries, the Commission stated, in its opinion, that it has confirmed that this allegation was correct. For this reason, and also because "other issues" regarding the transposition of the Insurance Mediation Directive in Ireland needed to be clarified, a so-called "pre-226" letter was sent to the Irish authorities on 11 April 2006. In their reply of 19 May 2006, the Irish authorities made a commitment to rectify the errors.

The Commission also stated, in its opinion, that it has been informed by the Irish authorities that the proposed revision of Irish legislation will resolve the situation whereby insurance intermediaries are subject both to the Insurance Mediation Regulation 2005 and the Investment Intermediaries Act 1995. The intention was that insurance intermediaries would be subject only to the new revised Insurance Mediation Regulation. The Commission went on to add that the law was awaiting the signature of the Finance Minister and should take legal effect as of May 2007.

1.11 In his observation on the Commission's opinion, the complainant stated that insurance intermediaries in Ireland are still regulated under legislation transposing the Third Life Directive and the Investment Services Directive.

As a result, insurance intermediaries are subject to the rules set out in the Third Life Directive regarding prudential supervision, capital adequacy, solvency requirements and conditions of operation. These requirements were only intended to apply to insurance companies and not to insurance intermediaries.

Similarly, the Irish government amended the Investment Intermediaries Act 1995, which was originally adopted to transpose the Investment Services Directive, so that it also covered all insurance policies.

As a result of the above, current Irish Law does not, according to the complainant, provide for "legal clarity", nor does it "establish an actionable legal position for individuals".

1.12 The complainant also stated that the Commission's opinion confirms that the Irish government excluded all credit institutions (that is, banks and building societies) "from the Insurance Mediation Directive". As such, the Commission confirmed that the Insurance Mediation Directive was not properly transposed into Irish law and did not meet the minimum required standard for harmonisation.

Despite the above, no warning or infringement proceedings have been issued against Ireland for its failure to meet the minimum harmonisation standards as imposed by the Insurance Mediation Directive.

1.13 The complainant further stated that he understands that some leeway needs to be allowed as regards the implementation of Directives, but Ireland has exceeded the "bounds of professional discrimination". He added that to classify certain insurance products, such as endowment savings policies, as "investment instruments" might be understandable, but it is beyond the bounds of common sense to classify as "investment instruments" household insurance, aviation insurance, marine insurance, bovine insurance, equestrian insurance, car insurance and personal accident insurance.

1.14 In a telephone correspondence of 9 September 2007 with the Ombudsman's services, the complainant confirmed that, to date, Ireland has not adopted the legislation which it has committed to adopt in order to rectify the anomalies present in the Irish legislation.

1.15 The Commission contacted the Ombudsman's services by email on 12 September 2007 in order to inform them of the current state of affairs relating to the implementation in Ireland of the Insurance Mediation Directive 2002/92/EC. The Commission stated that it has been recently informed by the Irish Authorities that the adoption of the revised Regulations implementing the Insurance Mediation Directive was, for reasons which the Commission does not consider as having a link to the issue of "bank assurance" raised by the complainant, postponed to autumn 2007 (October/November). According to the information the Commission has received from the Irish Finance Ministry, banks mediating insurance products will be included in the scope of application of the revised Regulations. The Commission also stated that, in addition, the issue of possible overregulation of intermediaries in Ireland should be settled by the revised rules.

1.16 In his observations relating to the European Commission's further opinion, the complainant stated that the e-mail of 12 September 2007 confirms that, contrary to Community Law, Ireland omitted banks and their insurance mediation products, from the legislation transposing the Insurance Mediation Directive. In this regard, the EU Commission failed to notice the omission, failed to act on his complaint for over 2 years and failed to enforce Community Law and the Treaty. In this respect, he pointed out that while the competent Commissioner confirmed, on 4 December 2006, that Ireland had correctly implemented the Insurance Mediation Directive, the Irish authorities are now contradicting this statement of fact.

1.17 The complainant pointed out that, while it is laudable that the Irish Authorities will, eventually, rectify errors and omissions within the legislation transposing the Insurance Mediation Directive, and will deal with the issue of overregulation of insurance intermediaries, it is very regrettable that the Commission did not see fit to protect the rights of insurance intermediaries.

2.1 The Ombudsman first of all notes that Article 1 of the Commission's Communication to the European Parliament and the European Ombudsman on Relations with the Complainant in Respect of Infringements of Community Law(4) (the "Communication") states that "'complaint' shall mean any written approach made to the Commission pointing to measures or practices contrary to Community law." Article 3 of the Communication states that "[a]ny correspondence which is likely to be investigated as a complaint shall be recorded in the central registry of complaints kept by the Secretariat-General of the Commission." This procedural requirement ensures that complainant will be treated in an efficacious matter. Not least, this procedural requirement ensures that the Commission must, as a general rule and in accordance with Article 8 of the Communication, "investigate [the complaint] with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint by the Secretariat-General. Where this time limit is exceeded, the Commission department responsible for the case will inform the complainant in writing."

2.2 In its opinion, the Commission informed the Ombudsman that the complaint was only officially registered as a "complaint" by the Secretariat-General under 2007/4071 on 26 January 2007, subsequent to the commencement of the present inquiry and subsequent to the request by the Ombudsman to the Commission to confirm whether the complainant's correspondence had in fact been treated in accordance with the Communication.

2.3 The Ombudsman notes that, in its opinion to the Ombudsman, the Commission stated that it should have registered the correspondence from the complainant as a "complaint", in accordance with the Communication, after having sent a so-called "pre-226" letter to the Irish authorities on 11 April 2006. In its opinion, it apologised for not having registered the correspondence from the complainant as a "complaint" at that time.

2.4 The Ombudsman observes that the complainant wrote to the European Commission on 27 June 2005, and on numerous occasions thereafter, clearly setting out his concerns in relation to the transposition of the Insurance Mediation Directive into Irish law. In the Ombudsman view, these communications should, in accordance with the aforesaid Communication, have been classified as a "complaint" as of 27 June 2005. In particular, the Ombudsman rejects the view taken by the Commission that it was only obliged to register the communications of the complainant as a "complaint" once it had sent the "pre226" letter to the to the Irish authorities on 11 April 2006. In light of the above, the Ombudsman will make a critical remark.

2.5 As regards the steps taken by the Commission to deal with the issues raised by the complainant, the Ombudsman notes that the Commission had on occasions informed the complainant that, in its view, Ireland was fully in compliance with its obligations pursuant to the Insurance Mediation Directive. In particular, the responsible Commissioner wrote to the complainant on 4 December 2006 informing him that the Commission could find no evidence to suggest that the Insurance Mediation Directive had not been correctly implemented in Ireland.

2.6 The Ombudsman also notes that the complainant and the Commission, and indeed the Irish authorities, now appear to share the view that certain aspects of the legislation transposing the Insurance Mediation Directive into Irish law do not conform with the Insurance Mediation Directive. In particular, the complainant and the Commission now appear to agree that Ireland wrongly excluded from the application of the insurance mediation rules those credit institutions which also acted as insurance intermediaries.

2.7 The Ombudsman does not, in this context, consider it of practical benefit to explore why, in certain previous correspondence with the complainant, the Commission took the view that Ireland was fully in compliance with its obligations pursuant to the Insurance Mediation Directive. Rather, the Ombudsman considers it of greater practical benefit to focus on the steps the Commission has taken, and may take in the future, to ensure that the lack of compliance is corrected.

2.8 The Ombudsman notes that, on 19 May 2006, the Irish authorities made a commitment to the Commission to rectify the errors identified in Irish legislation. In this context, the Commission stated, in its opinion, that new Irish legislation, designed to resolve the errors identified in existing Irish legislation, and the over-regulation of insurance intermediaries, was due to be adopted in May 2007.

However, it appears from the Commission's email to the European Ombudsman, dated 12 September 2007, that the Irish authorities have yet to make the afore-said changes to Irish legislation. The Commission's email also states that the Irish authorities are expected to make the aforementioned changes by October or November 2007.

2.8 The Ombudsman notes that, in its role of Guardian of the Treaty under Article 211 of the EC Treaty, the Commission is obliged to deal diligently with complaints presented by citizens concerning possible alleged infringements of Community law by Member States. In view of this obligation, the Ombudsman considers that the Commission is obliged to verify if Ireland has indeed adopted the legislation which it has committed to adopt, with an eye to rectifying the errors that the complainant identified in Irish legislation and the Commission agrees do exist. A failure to do so on the part of the Commission would constitute maladministration.

2.9 The Ombudsman is mindful of the fact that, as noted in Point 2.4 above, significant delays have already occurred as a result of the failure on the part of the Commission to register the correspondence of the complainant as a "complaint". However, with a view to ensuring that the issue is resolved satisfactorily, the Ombudsman, mindful of the fact that (a) the correspondence from the complainant was, on 26 January 2007, finally recorded as a "complaint" in the central registry of complaints kept by the Secretariat-General of the Commission and (b) the Commission, in the acknowledgement of receipt sent to the complainant subsequent to his complaint having been recorded in the central registry, stated that the complainant will be informed of the outcome of the investigation of that complaint, considers that the Commission should arrive at a decision to issue a formal notice to Ireland, or a reasoned decision to close the case, by no later than 26 January 2008. In view of the above, the Ombudsman will make a further remark.

The Ombudsman has noted above that that the Commission should arrive at a decision to issue a formal notice to Ireland, or a reasoned decision to close the case, by no later than 26 January 2008. In this context, no further inquiries are necessary as regards the complainant's claim.

As regards the allegation that the Commission failed to investigate properly Ireland's failure to transpose the Insurance Mediation Directive into Irish law, it is necessary to make the following critical remark:

Article 3 of the Commission's Communication to the European Parliament and the European Ombudsman on Relations with the Complainant in Respect of Infringements of Community Law states that "[a]ny correspondence which is likely to be investigated as a complaint shall be recorded in the central registry of complaints kept by the Secretariat-General of the Commission." This procedural requirement ensures that complaints concerning infringements of Community Law will be treated in an efficacious matter. Not least, this procedural requirement ensures that the Commission must, as a general rule and in accordance with Article 8 of the Communication, "investigate [the complaint] with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint by the Secretariat-General." The Commission's failure to register the correspondence of the complainant as a complaint until 26 January 2007 was not in compliance with the Communication and constitutes an instance of maladministration.

As regards the current efforts by the Commission to investigate Ireland's failure to transpose the Insurance Mediation Directive into Irish law, it is useful to make the following further remark:

With a view to ensuring that the concerns raised by the complainant are resolved satisfactorily, the Ombudsman is of the view that the Commission, in compliance with Article 8 of the Commission's Communication to the European Parliament and the European Ombudsman on Relations with the Complainant in Respect of Infringements of Community Law, should arrive either at a decision to issue a formal notice to Ireland as regards compliance with its obligations pursuant to the Insurance Mediation Directive, or a decision to close the case, by no later than 26 January 2008.

In light of the conclusions set out above, the Ombudsman decides to close the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

(1) See Official Journal C 244 of 10 October 2002.

(2) A copy of this letter was forwarded to the Ombudsman by the complainant.

(3) See Official Journal C 244 of 10 October 2002.

(4) See Official Journal C 244 of 10 October 2002.