Background to the complaint

1. The complainant is an umbrella organisation that represents European performers’ organisations. It contacted the European Ombudsman in February 2019 because the European Commission had neither produced nor taken steps to prepare the report referred to in Directive 2011/77/EU (amending Directive 2006/116/EC) on the term of protection of copyright and certain related rights:

“By 1 January 2012, the Commission shall submit a report to the European Parliament, the Council and the European Economic and Social Committee, assessing the possible need for an extension of the term of protection of rights to performers and producers in the audiovisual sector. If appropriate, the Commission shall submit a proposal for the further amendment [of the main directive].” ^[1]

The inquiry

2. The Ombudsman asked the European Commission to submit a reply, on which the complainant was invited to submit its comments^[2].

3. In July 2019, the Commission began formally to gather the necessary information for the assessment to be carried out. It did so by launching a public consultation that was to run until 31 December 2019. The report has not yet been finalised (January 2020).

Delay in producing the report

4. The Commission has incurred a delay of over eight years in submitting the report, despite a clear legal obligation to do so.

- In 2012, the Commission took the initial view that it could not produce a meaningful report within the very short period available to it (from 27 September 2011, that is, the date the Directive was adopted, to 1 January 2012, which was the deadline for submitting the report).

- In 2013-2014, the Commission carried out a public consultation on a general reform of EU copyright law, in which it asked one question related to the subject matter of the report. It concluded that relevant stakeholders had little or no interest in the matter, and that only a small group of stakeholders felt that changes would be needed.

- In 2017, correspondence with the complainant and replies to MEP questions confirmed the Commission’s intention to prepare the report soon.

- In 2018, the Commission concluded that it would not be useful to produce the report before the EU copyright reform was finalised by the EU legislature (this happened in April 2019).

The Ombudsman's assessment

5. With regard to the initial failure to produce the report within the statutory deadline, the Ombudsman understands the Commission’s position that this deadline was essentially too short. Reporting obligations in legislation adopted subsequently give the Commission much longer deadlines. Moreover, the recitals of the Directive in question do not refer to any urgency to have the report produced. Thus, although the Commission was, strictly speaking, legally obliged to produce the report within a three-month deadline, the Ombudsman’s view is that the fact the report was not produced at that point did not amount to maladministration.

6. With regard to the following eight years, the Ombudsman notes that evaluation reports serve a purpose not only as ‘reporting’ or ‘communication’ tools between the Commission and the other EU institutions. They offer a means for EU citizens and stakeholders to contribute to deliberations on EU policies and law-making^[3]. As such, they form part of the Union’s dialogue with citizens in the field of policy and law-making^[4]. Serious delays or decisions to suspend the formal preparation of such evaluation reports therefore impact on citizens’ and stakeholders’ possibilities to participate in EU policy and law-making.  

7. In this case, there has in reality not been a ‘delay’, but rather a conscious decision effectively to suspend production of the report for several years. The Commission did not attempt to produce the report, but decided not to do so. The Commission does not appear to have had a solid basis for taking such a decision. The fact that the complainant, an umbrella organisation that represents European performers’ organisations, takes issue with the fact the report has not been produced suggests that some stakeholders, at least, saw a need for it. 

8. With these considerations in mind, the Ombudsman finds that the Commission’s failure to produce the report is not justified. While some circumstances may explain why the Commission found it more practical or relevant to wait some time to prepare the report (paragraph 4 above), it has not referred to exceptional circumstances that would justify it not having abided by a clear obligation set out in the Directive.

9. The Ombudsman therefore finds that the Commission’s decision to suspend production of the report, and the fact that it has still not been produced, to be maladministration.

10. Since the Commission is now evaluating the outcome of its public consultation, which took place from July to December 2019, the Ombudsman does not find it necessary to issue a formal recommendation. She instead makes a related suggestion at the end of this decision.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

The Ombudsman finds the Commission’s decision to suspend production of the report referred to in Article 3(2) of Directive 2011/77/EU, and the fact that the report has still not been produced, to be maladministration.

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

Suggestion for improvement

The Ombudsman suggests that the Commission now inform the public as to when it intends to finalise the report referred to in Article 3(2) of Directive 2011/77/EU. It could do so on the relevant public consultation webpage.

The Commission is asked to respond to this suggestion by 28 February 2020.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 30/01/2020

 

 

[1] Article 3(2) of Directive 2011/77/EU https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1579182942703&uri=CELEX:32011L0077

[2] The complaint contained secondary criticism of the Commission’s failure to respond to some of the complainant’s requests for action to produce the report. In light of the steps now taken by the Commission, this aspect will not be addressed in this decision.

[3] https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-and-how_en#what-the-commission-is-doing

[4] Cf. Article 11(1)-11(3) of the Treaty on European Union. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12016M/TXT