Euroopan oikeusasiamies
Asiaan liittyviä asiakirjoja
Preliminary remarks
1. The Treaty on European Union requires the Commission to ensure the application of the Treaties and of measures adopted by the institutions pursuant to them. In this role, the Commission is sometimes referred to as "the Guardian of the Treaties". Under Article 258 of the Treaty on the Functioning of the European Union (TFEU), the Commission can bring the matter before the Court of Justice of the European Union if it considers that a Member State has failed to fulfil an obligation under the Treaties. If the Member State fails to comply with the subsequent judgment, the Commission may apply to the Court again under Article 260 TFEU. The Court may impose a lump sum or a penalty payment on the Member State concerned.
2. Anyone can complain to the Commission about an infringement of Union law by a Member State. The Commission itself has stressed on several occasions that complaints are a vital means of identifying infringements of Union law.
3. The practice of complaining to the Commission is not formally recognised either in the Treaties or in EU secondary legislation. Furthermore, whilst individuals can bring actions in the Union courts against Commission decisions rejecting complaints in certain competition matters, the established case-law denies complainants under Article 258 TFEU the procedural rights enjoyed by complainants in competition proceedings[1].
4. In 2002, following the Ombudsman's initiative, the Commission agreed to adopt a procedural code for the treatment of complainants and issued its Communication to the European Parliament and the European Ombudsman on relations with the complainants in respect of infringements of Community law ('the 2002 Communication')[2].
5. The Communication offers a series of important guarantees as regards the handling of complaints by the Commission. The basic rule is that all correspondence which is likely to be investigated as a complaint is registered in the central register of complaints kept by the Secretariat-General of the Commission[3] and then acknowledged[4]. This ensures that the complaint is dealt with according to the Commission's internal administrative procedures for handling infringement cases.
6. The second paragraph of point 3 (Recording of complaints) of the 2002 Communication provides for six exceptions to the above basic rule. Correspondence is not to be investigated as a complaint and shall not be recorded in the central registry of complaints if:
7. If correspondence is not registered as a complaint, it must be for one or more of the above reasons and the author must be informed of the reason or reasons[5].
Complaint 517/2009/MHZ
8. On 26 February 2009, the Ombudsman received a complaint, dated 16 February 2009, from a Spanish environmental NGO against the Commission (complaint 517/2009/MHZ).
9. The complainant argued that, in accordance with the 2002 Communication, any correspondence should be recorded as a complaint unless it does not comply with one of requirements foreseen in this respect. However, even if correspondence complies with these requirements, the Commission "selects" cases for registration as a complaint without giving proper reasons for doing so.
10. The complainant supported this argument on the basis of specific correspondence it sent to the Commission, which the latter did not register as infringement complaints. Given that, in its letter to the complainant dated 16 February 2009, and sent to the complainant in the meantime, the Commission properly clarified why some of the complainant's letters were not recorded as infringement complaints, the Ombudsman considered that there were insufficient grounds to open an inquiry into this particular aspect of complaint 517/2009/MHZ.
11. Nevertheless, the Ombudsman identified two issues of principle, in the Commission's letter dated 16 February 2009, which caused serious concerns and which deserved clarification in an own-initiative inquiry.
Reasons for the own-initiative inquiry
12. First, in its above letter dated 16 February 2009, the Commission stated that it endeavours to treat with priority those cases in which its intervention appears more necessary and may have more impact.
13. The Commission recalled that, according to its Communication A Europe of Results – Applying Community Law, priority should be attached to those infringements which present: (i) the greatest risks; (ii) widespread impact for citizens and businesses; and (iii) the most persistent infringements as confirmed by the Court.
14. In this respect, the Commission stated that its services identify the categories of cases involving alleged infringements of Community Environmental Law which deserve priority treatment. These categories are specified in the Commission's Communication on implementing EC Environmental Law. The Commission invited the complainant to focus on the above priorities when submitting complaints to it.
15. The Commission's above statements that it selects correspondence received with an eye to deciding whether or not to register it as a complaint could suggest that the "prioritisation" applies not only to its handling of complaints and infringements as such, but also to the handling of the correspondence as a criterion for its registration as an infringement complaint.
16. If this were indeed the Commission's policy relating to the registration of complaints, it would appear not to comply with the procedural guarantee enjoyed by complainants, as defined in the 2002 Communication. The Communication foresees that all correspondence which is likely to be investigated as a complaint, is registered in the central register of complaints kept by the Secretariat-General of the Commission and then acknowledged, unless it complies with one of the six exceptions stipulated in paragraph 6 above. The list of these exceptions is exhaustive and there is no reference that correspondence should concern a specific kind of infringement in order to be registered as a complaint. However, it appears that the Commission introduced a seventh condition for the registration of correspondence as a complaint by stating that it should concern the category of infringements which is on the Commission's "priority" list.
17. Second, in its above letter dated 16 February 2009, the Commission also referred to its practice not to register as an infringement complaint correspondence referring to access to environmental information unless the complainant has already exhausted the mechanisms established to this effect under national law (following the implementation of Directive 2003/4/EC on public access to environmental information, of 28 January 2003[6]). By doing so, it appeared that the Commission once again introduced, via a customary practice, a new condition for the registration of correspondence as a complaint, which did not exist in the 2002 Communication.
18. The Ombudsman took the view that the Commission should clarify the above-mentioned aspects of its policy regarding the registration of correspondence as complaints.
19. Article 228 TFEU (ex Article 195 EC) empowers the European Ombudsman to conduct inquiries on his own-initiative into possible instances of maladministration in the activities of Union institutions, bodies, offices or agencies. The Ombudsman therefore decided to open the present own-initiative inquiry to give the Commission an opportunity to provide a better explanation of its policy of registering, in its central registry of complaints, correspondence relating to infringements of EU environmental law.
20. The Ombudsman asked the Commission to take a position on the following points.
21. The Commission's statements contained in its letter dated 16 February 2009 could suggest that the Commission has introduced two 'new' exceptions to the rule that all correspondence, which is likely to be investigated as a complaint, is registered in the central register of complaints kept by the Secretariat General of the Commission. These conditions are not referred to in the 2002 Communication. They consist of cases where: (i) the correspondence in question does not concern the category of infringements of Community Environmental Law which is on the Commission's "priority list"; and (ii) correspondence which refers to access to environmental information, but the complainant has not used the existing mechanisms established to this effect under national law.
22. Even though the Commission has an undisputed discretion to amend its own Communication concerning how it handles complaints and infringement procedures, and could indeed add the above 'new' exceptions, citizens may reasonably expect that all applicable exceptions are publicly recognised, and that the Commission will apply the rules it has itself laid down until the Communication is amended.
23. In this regard, the Ombudsman asked the Commisison to clarify whether it indeed applies the above 'new' exceptions and, if so, whether it considers it useful to broaden the list of exceptions contained in the first paragraph of point 3 (Recording of complaints) of the Communication, on the basis of which "[c]orrespondence shall not be investigable as a complaint by the Commission, and shall therefore not be recorded in the central registry of complaints."
24. The Ombudsman also suggested that the Commission could include, as part of its reply, a flow chart showing how correspondence alleging non-compliance with Community law by a Member State is dealt with by its services.
25. The Ombudsman informed the complainant in case 517/2009/MHZ of the present own-initiative inquiry. He also stated that he would give it the opportunity to submit observations on the Commission's opinion.
26. On 23 September 2009, the Commission submitted an opinion in response to the Ombudsman’s inquiry. The Ombudsman forwarded this opinion to the complainant in case 517/2009/MHZ, inviting it to submit observations if it wished to do so, by 31 October 2009. The complainant submitted observations on 11 February 2010. In the meantime, on 22 January 2010, the Ombudsman had asked the Commission to submit further explanations by 31 March 2010. The Commission replied on 3 May 2010. Its reply was forwarded to the complainant in case 517/2009/MHZ with an invitation to submit observations, if it wished to do so, by 30 June 2010. The complainant in case 517/2009/MHZ did not submit any observations.
The arguments submitted by the Commission in its opinion
27. The Commission stated that it had not introduced two 'new' exceptions to the basic rule of recording complaints in its central register.
28. As regards 'the non-priority complaints', the Commission recalled that, in its 2007 Communication A Europe of Results – Applying Community Law[7] and its 2008 Communication "on implementing European Community Environmental Law"[8], it made clear that "prioritisation" in the management of its infringement activities was very important.
29. The Commission's Communication A Europe of Results – Applying Community Law states that the correct application of law can be improved by prioritising cases and that better results would be obtained for a given allocation of resources. On the other hand, however, the same Communication provides that "All complaints and infringements will be dealt with. Prioritisation means that some cases will be dealt with by the Commission more immediately and more intensively than others." The Commission argued that priority-setting is not to be interpreted as the Commission's refusal to register or treat complaints which are not considered as a priority. In this respect, the Commission added that a high percentage (circa 40%) of its environmental infringement files cover cases that do not fall within the priority criteria. Furthermore, the vast majority of environmental complaints dealt with through the EU Pilot[9] project (more than 100 files) are considered as 'non-priority' complaints.
30. In its contacts with the complainant in case 517/2009/MHZ, the Commission did not indicate that it would only register complaints corresponding to its priorities. Inviting NGOs to be more strategic does not imply a refusal to deal with non-priority complaints. The complainant appeared to have misunderstood the Commission's wording. In its further letter, sent to the complainant in the meantime (on 25 June 2009), the Commission clarified its position.
31. As regards complaints on access to environmental information, the Commission interpreted its position as falling within the 2002 Communication exception of failure to "set out a grievance".
32. It further argued that Article 6 of Directive 2003/4/EC on public access to environmental information, which repeals Council Directive 90/313/EEC[10], provides for forms of redress at national level for the benefit of those dissatisfied with an official response to a request for environmental information. The national review mechanism is thus considered an integral part of the concerned Member State's handling of the information request. According to the Commission, the Community legislator clearly intended a review process to be available to those requesting environmental information. According to the Commission, "a true infringement will not crystallise until the review mechanism has concluded on the matter."
33. The Commission considers that isolated individual problems occurring in the first stage of a Member State's handling of requests for access to information, which do not result from defective legislation, fall within the exception relating to failure to set out a grievance. This is because the full procedure by which a position on the file is established at national level has not yet been completed:
"Where … Community legislation explicitly provides for a national means of redress for dealing with complaints about non-respect of rights given under that legislation, it is appropriate to consider that no grievance arises at the Community level as long as the national means of redress has not been exhausted."
34. According to the Commission, if it examines cases involving dissatisfaction with specific access to information requests before appeal provisions have been exhausted, this risks undermining these provisions by suggesting that the Commission itself will serve as a parallel or alternative review mechanism. In addition, the individual interests of those applying for access to the environmental information are better ensured through the means of direct recourse provided under the Directive than through infringement proceedings brought by the Commission. The Commisison emphasised in this respect that it is not competent to represent the interests of citizens or private sector bodies before national authorities.
35. Finally, the Commission pointed to "an important practical aspect". The annual number of initial requests for environmental information within the scope of Directive 2003/4/EC is likely to run into millions across the EU. The Commission is not able to investigate and review decisions on such a large number of initial requests.
36. The Commission concluded by announcing that it introduced changes to the procedure for the registration of complaints to take effect from 28 September 2009. The purpose of these changes is to better respond to citizens, civil society and business' interests.
37. From that date, the Commission will separately and distinctly register all enquiries and complaints on the application of Community law as either an enquiry or a complaint. This process will take into account whether there are any clear indications in the correspondence as to its intended status. If the initial correspondence is not clear on the intended status of the file, but this status is confirmed at a later stage, the registration of the correspondence will be adapted if necessary. The Commission will examine the complaints according to their content, and inform the citizens concerned accordingly. Files containing complaints will not be closed before the complainant has the opportunity to respond to the explanations given for the intended closure of the file. Contacts may be made with the Member States taking part in the Pilot programme, or with other Member States. Infringement proceedings may be pursued, and all steps taken in their regard will be duly recorded.
38. According to the Commission, this approach to the registration of files concerning the application of Community law fully respects the criteria of the 2002 Communication, while applying a more extensive system of registration than in the past.
The comment on the Commission's opinion made by the complainant in case 517/2009/MHZ
39. The complainant in case 517/2009/MHZ took the view that many environmental complaints are not registered by the Commission as such, not because an exception of the 2002 Communication applies, but because the Commission does not foresee a priority treatment of the infringement file for such complaints.
The Ombudsman's initial assessment leading to further inquiries
39. At the outset, the Ombudsman welcomed the Commission’s decision to change its procedure for registering correspondence relating to infringements of EU law in order to better respond to citizens' interests.
40. On the basis of the Commission's opinion[11], he understood that, as of 28 September 2009, the correspondent him/herself determines whether his/her correspondence should or should not be registered as a complaint. This approach is decidedly citizen-friendly.
41. Since the Commission also stated that the criteria of the 2002 Communication were fully respected, the Ombudsman further understood that, regardless of the correspondent's determination or announced intention, the Commission still checks whether the exceptions established in the 2002 Communication regarding the principle of registering the correspondence as a complaint apply or not. It follows that, if the correspondence is covered by one of these exceptions, it is not registered as a complaint, even if its author intends that it should be regarded as such.
42. This is also a positive approach, since good administration does not necessarily require that the registration of correspondence must necessarily be "more extensive". Good administration means that the registration should not be arbitrary, but should conform to the rules established by the Commission itself in the 2002 Communication. The Ombudsman emphasises in this respect that the only special procedural rules, upon which citizens may rely as regards the Commission's dealings with their correspondence relating to infringements of EU law, are those to which the Commission committed itself in the 2002 Communication.
43. In this respect, the Ombudsman pointed out that citizens are entitled to know which administrative actions they can expect in a given situation. This is in line with the well-established principles of EU law of legal certainty and of the protection of legitimate expectations. For that reason, if the Commission decides to offer citizens special procedural guarantees for dealing with their correspondence relating to infringements, it should respect them strictly, unless it informs citizens otherwise.
44. The Ombudsman welcomed the Commission's statement that it did not introduce new exceptions to the 2002 Communication basic rule that all correspondence which is likely to be investigated as a complaint is registered in the central register of complaints kept by the Secretariat-General of the Commission, and that only the six exceptions referred to in the first paragraph of point 3 (Recording of complaints) of the 2002 Communication are binding.
45. The Ombudsman understands from the Commission's opinion that "prioritisation" does not concern the registration of the correspondence as a complaint, but the subsequent administrative stage, when the complaint is already registered and dealt with as such.
46. According to the case-law of the Union courts, the Commission disposes of a wide margin of discretion to decide whether or not to pursue a Member State for an alleged infringement of EU law[12]. In the above context, the Commission should also be empowered to decide, in its administrative procedures, to which complaint priority treatment should apply. Given that: (i) on pages 11-12 of its Communication Better monitoring of the application of Community law[13], the Commission provides exhaustive explanations on the criteria it applies to decide which infringements are so serious that they deserve priority treatment, and (ii) the Commission's Communication A Europe of Results – Applying Community Law provides that all complaints, whether priority ones or not, will be dealt with, the Ombudsman agrees with the Commission's explanation concerning "the non-priority complaints".
47. The Ombudsman notes that the complainant in case 517/2009/MHZ is sceptical as regards the Commission’s explanation. The Ombudsman trusts that, by its own actions, the Commission will be able to convince the NGOs that their complaints will be registered independently from the administrative priority that will be given to the matter of the complaint, once the Commission starts to deal with it.
47. The Ombudsman was, however, concerned by one specific aspect of the Commission's explanation regarding the registration of correspondence relating to infringements involving access to environmental information. The Commission states that it does not register as complaints correspondence relating to infringements involving access to environmental information if the national redress mechanism in question has not yet been complied with. According to the Commission, this approach does not constitute a new exception, but is rather covered by the existing 2002 Communication exception "failure to set a grievance".
48. In this respect, the Ombudsman first pointed out that, after having registered the correspondence as a complaint, if the Commission indeed concludes that its involvement is not appropriate, it has various options on how to deal with the complaint.
49. Second, it is undisputed that national courts are the first guardians of Community law, and that any alleged infringements may be dealt with even more efficiently through national means of redress than at EU level. Consequently, in his previous decision on an individual complaint, the Ombudsman supported the Commission's practice of awaiting the outcome of the relevant ongoing national judicial review before deciding how to deal with an already registered complaint covered by that review[14].
50. There is, however, a difference between: (i) deciding to put on hold the administrative handling of an infringement complaint until the national court/competent national body has ended its procedure and decided on the same issue; and (ii) deciding that the complaint should not be accepted as such if the court/competent national body has not yet been approached, in order to decide on the same issue.
51. As regards (ii), it is worth recalling the clear wording of the ECJ in its classic judgment in Van Gend en Loos[15]:
"the fact that the Treaty places at the disposal of the Commission ways of ensuring that obligations imposed upon [the Member States] by the Treaty are observed, [does not] preclude the possibility, in actions between individuals before a national court, of pleading infringements of these obligations."
In the same judgment, the Court also held that:
"the vigilance of individuals concerned to protect their rights [before national courts] amounts to an effective supervision in addition to the supervision entrusted by [the then] Articles 169 and 170 to the diligence of the Commission and of the Member State" (emphasis added).
In its subsequent judgment in Molkerei-Zentrale, the ECJ added that:
"proceedings [at national level] are intended to protect individual rights in a specific case, whilst intervention by the Community authorities has as its object the general and uniform observance of Community law."[16]
52. In light of the above, the Ombudsman is not convinced by the Commission's view that correspondence relating to an infringement should not be registered as a complaint if a national court or other body has not yet reviewed the same issue, and the relevant legislation provides for redress at national level in this regard.
53. Moreover, in the Ombudsman's view, none of the six existing exceptions, referred to in the first paragraph of point 3 (Recording of complaints) of the 2002 Communication, as it stands now, applies to a situation where the national means of redress have not been complied with, at the moment the correspondence relating to the relevant infringement is submitted.
54. The Ombudsman cannot agree with the Commission's interpretation that such a situation is covered by the exception that correspondence is not to be investigated as a complaint, and shall therefore not be recorded in the central registry of complaints, if this correspondence fails to set out a grievance. If the examination of a specific correspondence allows for the conclusion that the issues to which it refers are, or may be, subject of national judicial or administrative review, it cannot reasonably be stated that a grievance was not set out in that correspondence. The Commission's interpretation of the exception "it fails to set out a grievance" would be thus too broad and unreasonable.
55. The Ombudsman recalls again, and by analogy that, according to the case-law of the Union courts, exceptions and derogations need to be interpreted narrowly[17]. The ECJ specifically held that derogations must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected[18].
56. By issuing the 2002 Communication, and by adopting its 'new' approach as of 28 September 2009, the Commission wished to better protect the citizens' interests. For that reason, in the Ombudsman's understanding, the Commission's basic rule is that all correspondence relating to infringements should be registered as a complaint. In light of his findings in paragraphs 42 and 43 above, the Ombudsman considers that the broad interpretation of the existing exception that "it fails to set out a grievance", as the Commission proposes to apply it, does not serve such a purpose.
The Ombudsman’s letter to the Commission dated 22 January 2010
57. Before taking the final decision on his own-initiative inquiry, the Ombudsman decided to share his above assessment with the Commission. In his letter to the Commission, he invited the institution to explain whether it would agree to change its above interpretation of the existing exception of the 2002 Communication concerning "failure to set out a grievance". If its above interpretation is applied, citizens’ correspondence relating to infringements concerning access to environmental information, which have not yet been submitted to a national judicial/administrative review, cannot be registered as a complaint because such correspondence is seen as failing to set out a grievance.
57. The Ombudsman also pointed out in his letter that he highly appreciated the ongoing and constructive dialogue with the Commission concerning the registration and management of not only environmental, but all complaints and infringement files.
The Commission’s reply to the Ombudsman’s letter dated 22 January 2010
58. The Commission accepted the Ombudsman’s invitation to narrow its interpretation of the existing exception of the 2002 Communication that "it fails to set out a grievance". It declared that it would not use this as a basis for the non-registration of future complaints on access to environmental information in its new central CHAPS register.
59. In the Commission's opinion, unless the relevant national review mechanisms have been exhausted, it is generally inappropriate "to treat correspondence concerning access to environmental information refusals in Member States as a complaint requiring Commission contact with the national authorities." Therefore the Commission will make it clear, upon complaint registration in the CHAPS, that no further investigation will ensue unless the complainant provides evidence that national mechanisms have been exhausted.
60. Alternatively, the Commission may decide at a future date to take the necessary steps to give operational meaning to the exception pertaining to grievances with regard to which the Commission had adopted a clear, public and consistent position, which shall be communicated to the complainant.
61. Finally, the Commission took the opportunity to clarify the general role of the EU Pilot[19]. It emphasised that the EU Pilot's purpose is not to compensate for any excessive volume of complaints over the Commission’s administrative capacity to deal with them. The purpose of the EU Pilot is to organise the Commission’s work better when responding to infringement complaints. The Commission initiated the EU Pilot to strengthen commitment, co-operation and partnership between the Commission and Member States in order to improve the quality and speed of responses to enquiries and complaints relating to the application of EU law.
The Ombudsman’s final assessment
62. The Ombudsman welcomes the Commission’s agreement not to interpret and apply broadly the fifth exception foreseen in point 3 of the 2002 Communication, namely, that citizens' correspondence relating to infringements involving access to environmental information, which have not yet been submitted for judicial/administrative review at the national level, fails to set out a grievance and cannot, therefore, be registered as complaints. The Ombudsman finds it reasonable that, even if such correspondence is registered as a complaint, the Commission will normally investigate the matter only when the national court/administrative proceedings have ended.
63. The Ombudsman does not therefore find any instance of maladministration as regards the Commission’s policy relating to the registration of complaints.
On the basis of his inquiry into the present own-initiative inquiry, the Ombudsman closes it with the following conclusion:
The Ombudsman does not find an instance of maladministration.
The President of the Commission and the complainant in case 517/2009/MHZ will be informed of this decision.
P. Nikiforos DIAMANDOUROS
Done in Strasbourg on 3 September 2010
[1] See the order of the Court of 17 July 1998 in Case C-422/97 Sateba v Commission [1998] ECR-4913, paragraph 42 and Case T-191/99 Petrie and others v Commission [2001] ECR II-3677, paragraph 70.
[2] OJ 2002 C 244, p.5.
[3] The first paragraph of point 3 (Recording of complaints) of the 2002 Communication provides: "Any 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."
[4] The first paragraph of point 5 (Acknowledgement of receipt) of the 2002 Communication provides: "Correspondence registered as a complaint shall be acknowledged … by the Secretariat General within one month …"
[5] The fourth paragraph of point 5 (Acknowledgement of receipt) of the Communication provides: "Where the Commission departments decide not to register the correspondence as complaint, they shall notify the author to that effect by ordinary letter setting out one or more of the reasons listed in the second paragraph of point 3." (emphasis added)
[6] OJ 2003 L 41 p.26.
[7] COM(2007)502.
[8] COM(2008)773.
[9] According to the Commission's website, the EU Pilot project has been operating since April 2008 with the aim of providing quicker and fuller answers to questions, and solutions to problems arising in the application of EU laws – particularly those raised by citizens or businesses – requiring confirmation of the factual or legal position in a Member State. As regards procedure, the website states as follows:
"Under EU Pilot your enquiry or complaint will be examined by the responsible service in the Commission and forwarded to the Member State authority concerned with any questions or indications identified by the Commission service. You will be informed in writing that this method is being used to treat your correspondence. A general 10 week deadline has been set for responses to be provided. The Commission service will inform you of its evaluation"http://ec.europa.eu/community_law/infringements/application_monitoring_en.htm
[10] OJ 2003 L 41 p. 26.
[11] The statements made in the opinion were further developed by the Secretary General of the Commission in her letter to the Ombudsman dated 6 November 2009.
[12] Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 46; Case 247/87 Star Fruit v Commission [1989] ECR 291; Case 87/89 Société nationale interprofessionnelle de la tomate and others v Commission [1990] ECR-I 1981; Order of the Court in Case T-182/97 Ségaud v Commission [1998] ECR II-271. See also the Ombudsman's decisions on complaints 962/2006/OV, 3453/2005/GG, 3125/2005/BB, 995/98/OV, 480/2004/TN and 493/2000/ME, which can be found on the Ombudsman's website (http://www.ombudsman.europa.eu).
[13] COM(2002)725.
[14] Case 822/2009/BU, paragraph 34 (www.ombudsman.europa.eu)
[15] Case 26/62 Van Gend en Loos [1963] ECR- 0003.
[16] Case C-28/67 Molkerei-Zentrale Westfalen [1968] ECR-143 p. 154.
[17] Case C-465/04 Hoyvem [2006] I-2879, paragraph 24; Joined Cases C-397/01 Pfeiffer [2004] I-8835, paragraph 52 and C-303/98 Simap [2000] I-7963, paragraphs 34 and 35.
[18] Case 151/02 Landeshaupstadt Kiel [2003] I-8389, paragraph 89.
[19] See note 9 above.
