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Allegations regarding the Commission's handling of an infringement case against Austria concerning the total ban on the keeping of wild animals in circuses

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  • Case: 3307/2006/(PB)JMA
    Opened on 10 Jan 2007 - Draft recommendation on 03 Jun 2009 - Decision on 08 Mar 2010
  • Institution(s) concerned: European Commission
  • Field(s) of law: Freedom of movement for workers and social policy
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB]
  • Subject matter(s): The Commission as Guardian of the treaty: Article 258 of the TFEU (ex Article 226 of the EC Treaty)

Summary of decision on complaint 3307/2006/(PB)JMA against the European Commission

The complainant, the General Manager of a circus association, submitted a complaint to the European Commission against the Austrian Protection Law, which imposed a total ban on the keeping of wild animals in circuses. The Commission opened infringement proceedings against Austria pursuant to Article 258 TFEU, but closed the case shortly thereafter, arguing that Member States are better placed to decide on the appropriate measures to apply to a sensitive matter such as animal protection.

The complainant turned to the Ombudsman alleging that the Commission's decision was not well-grounded and that the infringement proceedings were not properly handled. The complainant, therefore, claimed that his case should be re-examined.

In a draft recommendation, the Ombudsman urged the Commission to provide the complainant with a clear and unequivocal statement of its views as regards whether Austria had or had not demonstrated that its Animal Protection Law was in compliance with the Treaty. The Ombudsman considered that, using its broad margin of discretion, the Commission could decide not to pursue an infringement case further, even if it took the view that the Member State had not demonstrated that its policies are in compliance with the Treaty. The Ombudsman went on to argue that, when the Commission chooses to exercise its discretion in such a manner, it should provide valid arguments explaining the rationale underpinning its decision.

The Commission did not accept the draft recommendation and stated that, in closing the infringement proceedings, it had made use of its discretionary powers. It further argued that animal welfare questions should not be decided at EU level but should rather be left to Member States. The Ombudsman understood that the Commission's decision to close the case, regardless of the possible existence of an infringement of EU law, was a decision taken on political grounds and accepted that the Commission can choose to exercise its discretion by deciding to drop an investigation before it has been completed and before it has taken a decision about whether a Member State is in breach of EU law. In view of these considerations, the Ombudsman didn't deem it justified to inquire further into the complainant's claim that the Commission should re-examine the infringement complaint.

However, the Ombudsman considered it necessary to close the inquiry with a critical remark as regards the reasoning which the Commission put forward as grounds for closing the case. In his view, the Commission's statement that "animal welfare questions are better left to Member States" seemed tantamount to an abdication by the Commission from its role as guardian of the Treaties in all matters concerning animal welfare and not merely to those pertaining to the present case. As such, it failed to provide a correct, clear and understandable reasoning for the exercise of the Commission's discretionary powers to close the case. The Ombudsman found that in so doing the Commission had committed an act of maladministration.

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