The background to the complaint

1. This case concerns the Commission's duty to explain its decisions for closing its file on infringement complaints, and its duty properly to hear the citizens concerned before doing so. The facts of the case concerned the handling of an infringement complaint about alleged breaches of Article 2, paragraph 3, of Annex XI of the Accession Treaty with Malta. The Article provides as follows:

"In order to have advance notice of any situation that may require action in accordance with paragraph 2 above during the seven year period following the date of accession, Malta may also retain its work permit system for nationals of other Member States for whom Articles 1 to 6 of Regulation (EEC) No 1612/68 apply, but shall issue such work permits automatically."

2. The purpose of this provision is found in paragraph 2 of Article 2 of the Access Treaty. That paragraph basically granted Malta the right, for a period of seven years, to take measures protect its labour market from certain "disturbances". The language used in the paragraph suggests that the disturbances should be serious ("seriously threaten the standard of living or level of employment", "urgent and exceptional cases").

3. However, the procedure for obtaining a work permit could take a long time (sometimes months), and in the meantime the EU citizen concerned was not allowed to take up work. This is what the complainant criticised in an infringement complaint that he submitted to the Commission in 2006.

4. The Commission registered the infringement complaint in accordance with its 2002 Communication for handling such complaints[1] (hereinafter the 2002 Communication). On the substance, it concluded that there was a possible breach of EU law, and issued a reasoned opinion to Malta on this issue. It informed the complainant of the outcome of the investigation by letter dated 26 February 2009.

5. The Commission's letter of 26 February 2009 (a) informed the complainant of the object of its investigation, (b) referred to new measures introduced by Malta, (c) and concluded that those new measures adequately remedied the specific shortcomings that the Commission had identified. On 25 May 2009, the Commission informed the complainant that it had closed the case.

6. It is useful to quote the Commission's letter of 26 February 2009 in full:

"Dear [complainant],

I am writing to you regarding your complaint 2006/4886 on the application of the right to free movement of workers by Malta and more specifically the requirement that EU nationals are not allowed to commence work in Malta before they have been issued with a work permit which may take up to three months.

I had informed you that the Commission considered this to be contrary to EC law and had sent a letter of formal notice to the Maltese authorities. As Malta had not agreed with the Commission's view, the Commission had continued with the second stage and issued a reasoned opinion.

I am pleased to inform you that Malta has recently introduced a provisional work permit which will be granted on the day when an EU national applies for it and permits the holder to start work immediately. Following the necessary back-office verification of documents, the EU national will be issued a definitive work permit.

In that context, I would like to inform you that the services of the Commission are of the opinion that these new measures enable to reconcile the right granted in the Accession Treaty to Malta to maintain its work permit scheme until the end of April 2011 and the principle of free movement of workers. The position is the same regarding the request for a fee for the delivery of the work permit.

We shall accordingly be proposing that the Commission terminate this case at one of its forthcoming meetings. If you have any new information that might prove that there is an infringement, we should be most grateful to receive it at your earliest convenience and at any rate within four weeks of this letter."

7. In his complaint to the Ombudsman, the complainant indicated that he did not understand how the Commission reached those findings. He appeared to understand that the Commission somehow had reached an 'agreement' with Malta rather than properly examining the matter from a legal point of view.

The subject matter of the inquiry

8. The complainant's allegation in the present case is, in summary, that the Commission failed adequately to respect its duties relating to the decision to close its investigation of the issue raised in the infringement complaint. The complainant specifically raised issues regarding (a) the implementation of the Commission's 2002 Communication on the handling of infringement complaints, and, more specifically, (b) the standard of explanations provided to him for closing the infringement investigation, and (c) the nature of the invitation to respond to the Commission's finding that the investigation could be closed.

9. The complainant essentially claimed that the Commission should review its decision not to investigate further the issue raised in his infringement complaint, or provide valid and adequate grounds for not doing so.

The inquiry

10. On 11 March 2010, the Ombudsman asked the Commission to submit an opinion. The Commission submitted its opinion on 1 July 2010. The opinion was forwarded to the complainant with an invitation to submit observations. The complainant did not submit observations.

The Ombudsman's analysis and conclusions

Preliminary remarks

11. The Ombudsman recalls that his inquiry in this context is limited to investigating whether the Commission acted in accordance with the rules and principles binding upon it when handling the infringement complaint, and also whether it kept within the limits of its legal authority. His investigation does not imply a review of the question whether national legislation, practices and court decisions may be contrary to EU law. The Ombudsman further recalls that the Commission enjoys a discretionary power in deciding whether to institute proceedings before the Court of Justice in relation to the alleged failure by a Member State to fulfill its obligations under EU law.

12. The Ombudsman furthermore notes that he raised the following issues in his letter to the Commission opening the present inquiry.

13. In the first place, the Ombudsman recalled that Point 10 of the Commission's 2002 Communication for handling infringement complaints (hereinafter the 2002 Communication) guarantees the complainant the possibility to submit comments in response to "grounds" communicated to him/her by the Commission. In order to give the complainant a meaningful opportunity to formulate comments, such grounds must be sufficiently clear and reasoned. The Commission's above-quoted letter of 26 February 2009, which informed the complainant of its intention to close the infringement investigation, contained relatively sparse information, both on the Maltese work permit practices that the Commission had concluded were adequate, and on its examination of the issues involved. It did not, for instance, contain information on why Malta had decided to operate with a provisional and fee-based work permit system, and how these features of the system related to the purpose set out in what appeared to be the relevant paragraph in the Accession Treaty with Malta (Annex XI, Article 2(3), "In order to have advance notice of..."). The Commission's letter also referred to a notion of 'back-office verification of documents'. It was not, however, clear from the letter what this referred to.

14. Second, with regard to the Commission's invitation to the complainant to respond to its finding that the case could be closed, the Ombudsman noted that this invitation was formulated as an opportunity to submit "information" that might "prove an infringement". It was not clear that this formulation fully conveyed the purpose of Point 10 in the Commission's 2002 Communication, which is expressly to grant the complainant the opportunity to submit any observations (not only information) on the Commission's findings, including any comments intended to challenge the substantive conclusions reached by the Commission.

A. Allegation of failure to respect duties under the 2002 Communication

Arguments presented to the Ombudsman

The complaint

15. The complainant considered, in summary, that the Commission did not adequately explain to him how it reached the findings set out in its above-quoted letter of 26 February 2009. He appeared to have understood that the Commission somehow had reached a kind of 'agreement' with Malta rather than properly examining the matter from a legal point of view.

The Commission's opinion

16. In its opinion, the Commission made, in summary, the following comments.

"Although the Commission services have always understood that the legal assessment of a complaint by the Commission, and the procedural decisions based upon this, could not be challenged by the complainant within an infringement or complaint procedure, it may be helpful to inform about the legal situation and the Commission's assessment of the Maltese practice before looking at the individual arguments of the ombudsman and the complainant."

17. The Commission noted that paragraphs 2 and 3 of Annex XI of the transitional measures in the 2003 Act of Accession state the following:

"2. Malta may resort to the procedures set out in the subparagraphs below until the end of the seven year period following the date of accession.

When Malta undergoes or foresees disturbances on its labor market which could seriously threaten the standard of living or level of employment in a given region or occupation, it shall inform the Commission and the other Member States thereof and shall supply them with all relevant particulars. On the basis of this information, Malta may request the Commission to state that the application of Articles 1 to 6 of Regulation (EEC) No 1612/68 be wholly or partially suspended, in order to restore to normal the situation in that region or occupation. The Commission shall decide on the suspension and on the duration and scope thereof not later than two weeks after receiving such a request and shall notify the Council of such a decision. Any Member State may, within two weeks from the date of the Commission's Decision, request the Council to annul or amend the Decision. The Council shall act on such a request within two weeks, by qualified majority.

Malta may, in urgent and exceptional cases, suspend the application of Articles 1 to 6 of Regulation (EEC) No 1612/68, followed by a reasoned ex-post notification to the Commission.

3. In order to have advance notice of any situation that may require action in accordance with paragraph 2 above during the seven year period following the date of accession, Malta may also retain its work permit system for nationals of other Member States for whom Articles 1 to 6 of Regulation (EEC) No 1612/68 apply, but shall issue such work permits automatically."

18. In the Commission's view, Malta was therefore clearly allowed to continue to apply its work permit scheme to EU nationals wanting to work in Malta during the transitional period until 30 April 2011. It went on to note, however, that Malta was, at the same time, obliged to issue the permits 'automatically'.

19. The Commission proceeded to state that, in its view, Malta did not have to provide reasons why it applied the work permit scheme. It found that an obligation to state such reasons did not logically flow from the fact that the transitional arrangements were related to paragraph 2 of the transitional arrangements.

20. The Commission emphasized that the object of the complaint procedure was therefore not the fact that Malta required EU nationals to have a work permit but rather the obligation to issue such work permits 'automatically'. The Commission challenged Malta's practice whereby to subject the right of EU nationals to take up employment in Malta was subjected to the condition of having first to be issued with a work permit. Part of the reason for doing so was that the time it took to issue the permits was not compatible with the term 'automatic'. The Commission considered acceptable the solution proposed and implemented by Malta, which was to issue provisional work permits immediately upon application, thereby allowing the EU national concerned to commence employment, and subsequently issue more definitive work permits once certain details had been verified. This solution allowed EU nationals immediately to commence employment in Malta, while, at the same time, making it possible to reconcile the transitional arrangements allowing Malta to continue to apply its work permit scheme by means of automatically issued permits and fully to respect the EU right to free movement.

21. The Commission also considers that requesting a fee for the work permits was "acceptable in view of Malta's right under the transitional arrangements to maintain 'its' work permit scheme, especially considering that the fee of €58 which [had] to be paid by the employer [was] intended to cover administrative costs, (...) remained unchanged since before accession, [was] considerable less than the fees for work permits of non-EU nationals, and considering that Malta had reversed the renewal fee to the same amount of €34 that it had been prior to accession and in view of the fact that the transitional arrangements [would] finally end on 30 April 2011."

22. The Commission services considered that this view was also supported by the fact that the wording of paragraph 3 of Malta's transitional arrangements was quite different from that of paragraph 6 of the transitional arrangements for the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovakia, which also allowed for automatic issuing of work permits. Paragraph 6 provides that Member States applying Articles 1-6 of Regulation 1612/68 with regard to nationals of those eight countries during the second and third phase may issue work permits for monitoring purposes but must do so automatically.

23. The Commission also pointed out that the Guide for National Administrations adopted in 2004 by the Technical Committee on Free Movement of Workers in 25 Member States stipulates, with regard to the paragraph 6 in question, that Member States would have to ensure the correct administrative structures and documentation because a monitoring work permit may not fit easily with existing work permit arrangements or with labor market access schemes (see under 'Transitional arrangements for the free movement of workers (enlargement of the EU 1 May 2004)' at http://ec.europa.eu/socia]/main.isp?catld=466&langld=en). In the Commission's view, this difference between the wording of paragraph 3 of Malta's transitional arrangements and paragraph 6 of the other transitional arrangements meant that Malta did not have to ensure such correct administrative structures and documentation for a monitoring work permit scheme, since it could maintain its own work permit scheme. In turn, this fact meant that Malta could maintain certain aspects of its work permit scheme, including a fee to cover the relevant administrative costs.

24. Turning to the issue of the standard of explanations which the Commission provided the complainant with when it decided to close its file on his infringement complaint, the Commission noted that its services furnished the complainant with the information that Malta had recently introduced a provisional work permit. This permit would be granted on the day when an EU national applied for it, and would permit the holder of the permit to start work immediately. Moreover, following the necessary back-office verification of documents, the Maltese authorities would issue a definitive work permit to the EU national in question.

25. The Commission did not explain to the complainant the meaning of the term 'necessary back-office verification'. It indicated that part of the reason for this was that it simply did not have the relevant information. In addition, "the decisive aspect for proposing to close the case was the introduction of a provisional work permit, and not the conditions and time delay under which the final work permit was to be issued. However, in earlier contacts during the period when Malta was elaborating the provisional work permit scheme Malta had referred to verification in particular of EU nationality of the applicant ...".

26. With regard to its legal assessment, the Commission pointed out that its services informed the complainant that they considered that the above-mentioned provisional work permit scheme reconciled the right granted to Malta in the Accession Treaty, namely, the maintenance of its work permit scheme, and the principle of free movement of workers. They also informed the complainant that it held the same view with regard to the fee for the delivery of the work permit.

27. The Commission noted, however, that its services' description of its position "may not have made clear enough that these transitional arrangements grant Malta the right to retain its work permit scheme when explaining that Malta had the right to invoke a safeguard clause and re-impose restrictions regarding the free movement of workers if it experiences serious disturbances on its labor market, and while Malta had not yet notified such serious disturbances, it had, however, retained its work permit system in order to monitor its labour market and have advance notice of any situation that may require such action." The Commission concluded that "the information provided to the complainant in the pre-closing letter on its legal assessment of the introduction of a provisional work permit could have been more detailed to allow the complainant to better understand the legal framework under EU law."

28. In addition, the Commission addressed various points which the complainant raised in his present complaint to the Ombudsman. The Commission noted that the complainant appeared somehow to consider that the provisional work permit scheme prevented EU citizens from exercising the right to work in Malta. Moreover, he appeared to consider that the fee for the provisional work permit was discriminatory.

29. Addressing the first issue, the Commission stated that, were the complainant not to agree with its services' assessment that the provisional work permit is legally acceptable, its response would be to refer him to its above-quoted legal assessment.

30. With regard to the fees, the Commission stated that Article 18 of the Treaty on the Functioning of the European Union prohibits discrimination on the basis of nationality without prejudice to any special Treaty provisions. The provisions setting out the transitional arrangements in Malta's Accession Treaty, which allowed Malta to retain its work permit scheme, constituted such special treaty provisions. In the Commission's view, they allowed Malta also to request fees for work permits issued to EU citizens.

31. The Commission also noted that, in his complaint to the Ombudsman, the complainant enclosed an official letter which he understood to convey the message that he had a right to work in Malta only if he remained married to his wife. The Commission noted, in essence, that neither the content nor the context of this letter was clear, and that, in any event, it had been written after the Commission's assessment of his infringement complaint.

32. With respect to the Ombudsman's query regarding the nature of the invitation extended to individuals to respond to the Commission's findings that an investigation could be closed, the Commission made the following comments.

"Point 10 in the 2002 Communication states that the pre-closure letter of the Commission to the complainant will incite the complainant 'to submit any comments' in connection with the explanations given why the Commission services intend to propose that no further action be taken on the complaint. The standard form pre-closure letter often used for this purpose states that:

'If you have new information that might prove that there is an infringement [where an individual case is being closed: a general practice by the authorities of [Member State]], we should be most grateful to receive it at your earliest convenience, and at any rate within four weeks of this letter'

This text of the standard form letter seeks to provide the complainant with more precise guidance than the 2002 Communication provides. The purpose of the pre-closure letter is to inform the complainant of the intention to close the file and to give to the complainant time to respond before that happens. It is clear that the deadline of four weeks is connected with the objective of closing the file. The only information that would be useful for a complainant to send within this period is therefore that which might influence a change in the intention to close the file. The text of the standard form letter is therefore preferable to the more general text in the 2002 Communication as it provides more guidance to the complainant as to what further input could be useful.

At the same time, there is no suggestion that other kinds of information, whether submitted within the same timeframe or later, would not be accepted, analysed and a response sent from the Commission. Therefore, no limitations are set on the information which the Commission services are ready to receive, analyse and respond to.

The Commission therefore considers that, by targeting the main issue of interest to complainant and Commission at this stage in the complaint procedure, and by providing more focused indications to the complainant than the more general language in the 2002 Communication, the standard form text used by the Commission provides more useful information and better guidance to the complainant than any more general drafting."

33. The complainant refrained from submitting observations on the Commission's opinion.

The Ombudsman's assessment

34. The Ombudsman welcomes the fact that, in its opinion in the present case, the European Commission provided detailed and clear reasons for its services' decision to propose that the infringement file here in question be closed. The Commission explained that it considered the complainant's infringement complaint to have revealed a breach of Community law by Malta. It gave an account of how it had actively addressed the issue and achieved a solution which ensured respect for the fundamental principle of freedom of movement of workers in the European Union. The Commission outlined in some detail its analysis of the legal points raised by the complainant in the present inquiry.

35. The Ombudsman considers that, within the framework of the procedure here concerned, the Commission's decision not to have further pursued the complainant's infringement complaint appears to have been based on valid grounds. The Ombudsman also welcomes the fact that the Commission acknowledged that its letter of 26 February 2009 could have been more detailed, in order to allow the complainant to better understand the relevant legal framework under EU law. He understands this to mean that, in similar cases, the Commission's services will in the future strive to provide the higher level of transparency that the Commission delivered in its opinion in the present inquiry.

36. The Ombudsman thus considers that any shortcomings in the clarity of the Commission's initial explanations contained in its letter of 26 February 2009 have been sufficiently addressed by its additional comments in the opinion concerning the present inquiry. The Ombudsman therefore considers that no further inquiries are necessary regarding the issue of possible maladministration by the Commission in its response to the complainant's infringement complaint.

37. The second part of the allegation included for inquiry in the present case concerned the wording used by of the Commission's services when inviting the complainant to submit comments in response to their provisional conclusion that the infringement file should be closed. This invitation was contained in so-called 'pre-closure' letters.

38. The, Ombudsman welcomes the Commission's response to this issue in so far as it identifies a useful objective, which is to "provide the complainant with more precise guidance than the 2002 Communication provides".

39. The Ombudsman also welcomes the Commission's unequivocal statement that the person submitting an infringement complaint is fully entitled to submit information about any aspect of the infringement case, and that such information will be duly examined by the Commission's services. The Commission conveyed this message as follows: "(...) there is no suggestion that other kinds of information, whether submitted within the same timeframe or later, would not be accepted, analysed and a response sent from the Commission. Therefore, no limitations are set on the information which the Commission services are ready to receive, analyse and respond to.

40. The Ombudsman regrets, however, that the Commission only referred to 'information'. In so doing, it refrained from committing itself to invite, analyse and respond to valid challenges to specific legal positions adopted by its services on an infringement complaint. This omission appears to emanate from the understanding expressed elsewhere in the Commission's opinion, according to which, "(...) the Commission services have always understood that the legal assessment of a complaint by the Commission (...) could not be challenged by the complainant within an infringement (...) procedure, (...)".

41. In the Ombudsman's view, this understanding is not at all consistent with the wording of the relevant parts of the Commission's 2002 Communication. The Ombudsman already explained this point to the Commission in his opening letter of the present inquiry (see paragraphs 13 and 14 of the present decision).

42. Accordingly, if the Commission's standard approach is that persons who submit infringement complaints may not challenge its services' legal assessment in response to a pre-closure letter, the Ombudsman can only conclude that such an approach is inconsistent with the 2002 Communication.

43. However, it is important to note that the Ombudsman's numerous inquiries involving the Commission's handling of infringement complaints convey a more complex picture than the one set out in the Commission's opinion in the present case. It cannot be excluded that different services of the Commission pursue different policies in this matter. For these reasons, the Ombudsman considers, at this stage, that the most useful response is to address a further remark to the Commission. In line with the relevant standard procedure, the Commission will respond to the further remark within six months, informing the Ombudsman of the measures it may have decided to adopt in response to that remark.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:

No further inquiries are necessary into the first part of the allegation, and the claim cannot be sustained.

With regard to the second part of the allegation, the Ombudsman considers a further remark to be the appropriate response.

The complainant and the Institution will be informed of this decision.

Further remark

Citizens who submit infringement complaints to the European Commission are invited to respond to a 'pre-closure letter' announcing the intention of the Commission's services to close the file on the relevant infringement complaint. In the pre-closure letter, the services shall set out the grounds on which they intend to close the file. In his or her response, the citizen may contest these grounds, be they factual, administrative or legal. This does not put into question the Commission's wide competence for deciding on whether and how to pursue potential or actual infringements by Member States.

The Ombudsman encourages the Commission closely to examine the extent to which its services recognize and implement the citizens' right to challenge its services' substantive findings, including their legal assessment, when responding to pre-closure letters issued under its 2002 Communication.

The Ombudsman encourages the Commission to amend the wording of the pre-closure letter to ensure that citizens are made fully aware that the invitation to submit comments includes an invitation to make any relevant challenge to the services' legal assessment.

It goes without saying that the Ombudsman would be ready to comment on a first draft of such a reformulated pre-closure letter.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 15 July 2011

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[1] Commission communication to the European Parliament and the European ombudsman on relations with the complainant in respect of infringements of community law, OJ 2002 C 244, p. 5. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52002DC0141:EN:NOT