THE BACKGROUND TO THE COMPLAINT

1. The complainant, a German lawyer, represents a German cosmetician who wishes to have her professional qualifications recognised in Greece in order to be able to work there as a self-employed cosmetician.

2. The profession of "cosmetician" was covered by Annex A, List VI of Directive 1999/42/EC of the European Parliament and of the Council of 7 June 1999 establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications[1]. Article 4(1) no 6 of Directive 1999/42 provided that, where a Member State makes the taking-up or pursuit of any of the activities listed in Annex A, List VI dependent on the possession of general, commercial or professional knowledge and ability, that Member State shall accept as sufficient evidence of such knowledge and ability the fact that the activity in question has been pursued in another Member State, provided that the person concerned fulfils the criteria set out in this provision. In case the person concerned does not have the requisite professional experience, Article 3(1) of Directive 1999/42 required Member States to compare the qualifications of the person concerned with those required under their own national rules. Only where this comparison shows that there is a substantial difference, the Member State can make the admission of the person concerned dependent on passing an aptitude test or on fulfilling an adaptation period. Article 3(2) stipulated that decisions on such applications shall be taken no later than four months from the date on which the application and comprehensive supporting documentation were submitted, that the reasons for these decisions need to be provided and that an appeal under national law lies against these decisions or against the absence of such a decision.

3. Directive 1999/42 was subsequently replaced by Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications[2]. However, the system foreseen by Directive 1999/42 for the recognition of professional qualifications has remained the same under the new directive.

4. On 16 May 2006, the complainant's client submitted to OEEK, a Greek body which appears to be in charge of professional training, a request to have her professional experience recognised On 11 July 2006, OEEK decided that the professional qualifications of the complainant's client could only partially be recognised in Greece. As a result, the complainant's client was allowed to work as an "assistant cosmetician" in Greece but was not allowed to work as a self-employed cosmetician.

5. On 6 November 2006, the complainant turned to the European Commission.

6. On 18 April 2007, the Commission's Directorate-General Internal Market and Services ("DG MARKT") informed the complainant about the legal background relevant to her case. DG MARKT noted that the decision of OEEK did not refer to the applicable rules of Community law and of national law and that no comparison of the professional qualifications of the complainant's client with those required under Greek law appeared to have been carried out. It explained that cases similar to that of the complainant's client had already been brought to the Commission's attention and that this pointed to a consistently incorrect application of Directive 1999/42 on the part of Greece with regard to cosmeticians. DG MARKT explained that a letter of formal notice had been addressed to Greece and that the complainant would be kept informed of further developments. It added that her case would be joined to those which were already under examination.

7. On 19 April 2007, the Commission informed the complainant that her letter of 6 November 2006 had been registered as an infringement complaint under reference 2007/4283.

8. By letter of 24 January 2008, DG MARKT informed the complainant that a supplementary letter of formal notice had been addressed to Greece.

9. In a letter of 24 June 2008, DG MARKT informed the complainant that, in its reply to the supplementary letter of formal notice, the Greek authorities had taken the view that the complainant's client had not submitted a request for the recognition of her professional qualifications on the basis of Directive 1999/42, but a request for the academic recognition of her professional education. According to the Greek authorities, a request for the recognition of the professional qualifications of the complainant's client on the basis of Directive 2005/36/EC fell within the competences of the Greek Ministry of Health. The complainant could thus turn to this ministry, using a special application form and enclosing the necessary documents. DG MARKT therefore asked the complainant whether she intended to make a new application to the said ministry.

10. In her e-mail reply of 25 June 2008, the complainant pointed out that she failed to understand the Commission's letter because the Greek authorities had informed her that her client needed the recognition of the OEEK because the corresponding qualification in Greece was awarded by a technical college. Furthermore, the Commission had failed to ask the Greek authorities to which department in particular the application had to be sent, given that the same Ministry for Health had sent her the application form she had filled in and submitted to the OEEK. There did not appear to have been any other possibility to submit applications. The complainant expressed the view that it was unacceptable that an EU Member State constantly changed its administrative law and thus obliged citizens repeatedly to send requests to new bodies. She further indicated that, as far as she knew, applying to the Greek Ministry of Health would not procure her client the decision she was looking for. However, the complainant added that she would nevertheless submit a new application to the Ministry for Health, in order to prove to the Commission that it would not be possible to obtain the recognition in this manner.

11. On 7 July 2008, the complainant turned to the Ombudsman (complaint 1929/2008/WP), asking him to intervene in the ongoing infringement procedure. The Ombudsman took the view that there were insufficient grounds for an inquiry at that stage, given that the complainant had written to the Commission shortly beforehand and that the latter's reaction to the complainant's letter of 25 June 2008 had to be awaited.

12. On 28 July 2008, DG MARKT provided the complainant with the contact details of the person in charge of issues relating to the recognition of professional qualifications in Greece. The relevant person was an official in the Greek Ministry of Education. DG MARKT further explained that, according to Article 51 of Directive 2005/36, decisions on applications for the recognition of professional qualifications had to be taken no later than four months from the date on which the application and comprehensive supporting documentation were submitted, that reasons needed to be provided for these decisions and that an appeal under national law lies against these decisions or against the absence of such a decision.

13. By letter of 1 October 2008, DG MARKT informed the complainant that, as a result of its efforts, Greece had modified its legislation and its administrative practice. On 14 December 2007, the Greek authorities had confirmed that all requests submitted by individuals wishing the recognition of their professional qualifications as cosmeticians acquired in other Member States would be dealt with on the basis of Presidential Decree no 69/2003, which implemented Directive 1999/42. DG MARKT added that, on 15 July 2008, the Greek authorities had informed it about the amendments to Ministerial Decree no Y3b/oik.15543/1-2-2008, which governed the documents needed in order to obtain permission to run a beauty parlour. According to DG MARKT, the Greek authorities had confirmed that a person whose professional qualifications as cosmetician had been recognised in Greece could obtain the permission to run a beauty parlour. As regards the case of the complainant's client, DG MARKT pointed out that it had been informed that a further application would be made to the Greek Ministry of Health. DG MARKT concluded that, in view of the above, the problem of the complainant's client appeared to be solved and that it therefore intended to propose to the Commission to close the case.

14. On 16 October 2008, the complainant wrote to inform DG MARKT that she had not submitted an application to the Greek Ministry of Education, since the latter had advised her by telephone that it was only competent to deal with the recognition of university degrees and since such an application would have necessitated the submission of a number of officially attested documents and would have entailed a disproportionate expense. As regards the possibility to work as a self-employed cosmetician, the Commission had informed her that her client should turn to the Ministry of Health. However, according to the complainant, the latter Ministry had informed her over the telephone that it could only deal with the matter after a formal recognition of her client's professional qualification by the OEEK. The complainant recalled that it had been the purpose of her infringement complaint to make the Commission intervene with the Greek authorities in order to make it clear to them that there had to be clear rules for the recognition of the qualifications of cosmeticians. Moreover, she had asked the Commission to establish whether her client should, in view of her qualifications, be recognised as a self-employed cosmetician. The complainant took the view that the Commission had failed to assess these two central issues despite the passage of two years.

15. On 16 October 2008, the complainant turned to the Ombudsman again, asking him to intervene. Her letter to the Ombudsman was therefore registered as a new complaint.

THE SUBJECT MATTER OF THE INQUIRY

16. In her complaint, the complainant alleged that the Commission failed properly to handle her infringement complaint.

17. In support of this allegation, the complainant submitted in particular (i) that the Commission failed to make it clear to the Greek authorities that there had to be clear rules for the recognition of the qualifications of cosmeticians and (ii) that the Commission failed to establish whether her client should, on the basis of her qualifications, be recognised as a self-employed cosmetician.

18. The complainant claimed that the Commission should handle her complaint in an appropriate and speedy manner.

THE INQUIRY

19. On 14 November 2008, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint.

20. On 9 December 2008, the complainant forwarded to the Ombudsman a letter she had addressed to the Commission on that same day.

21. The Commission sent its opinion on 10 February 2009. The opinion was forwarded to the complainant with an invitation to make observations by 31 March 2009. No observations were received from the complainant.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of failure properly to handle an infringement complaint

Arguments presented to the Ombudsman

22. The complainant alleged that the Commission failed properly to handle her infringement complaint.

23. In its opinion, the Commission recalled the steps taken and the correspondence exchanged with the complainant concerning her client's case. In its acknowledgment of receipt of 29 November 2006, it had announced that a reply on the substance would be sent within two months. The Commission regretted that this reply could only be sent on 18 April 2007. It stressed, however, that an infringement case concerning several other complainants had already been pending and that it had been necessary to translate and analyse the Greek authorities' reply of 19 January 2007 to the letter of formal notice before dealing with the new case.

24. The Commission pointed out that, on 24 June 2008, it had informed the complainant in detail that, according to the information received from the Greek authorities, her client had not followed the proper procedure, contrary to the other complainants concerned by this infringement case. It added that the other complainants who had turned to it and who had followed the appropriate procedure had in the meantime obtained the recognition of their professional qualifications and the permission to open a beauty parlour in Greece.

25. The Commission further reiterated information it had already explained in a letter addressed to the complainant on 25 November 2008, a copy of which it provided. In this letter, DG MARKT pointed out that the infringement case it had pursued concerned the application of the Greek legislation implementing Directive 1999/42 and that, as a result of its intervention, the Greek authorities had committed themselves to respecting the provisions of Directive 1999/42 and to solving the problems of the other complainants. DG MARKT noted that the question whether the Greek authorities were entitled to require applicants to submit officially attested documents had not been covered by its infringement procedure. As regards the case of the complainant's client, DG MARKT stressed that it had kept the complainant informed throughout the whole procedure. It added that the Greek authorities had informed it that the complainant had not submitted the application that was needed and that it had therefore invited the complainant to make such an application. However, and contrary to what had been announced in her e-mail of 25 June 2008, the complainant had subsequently informed DG MARKT that she would not submit such an application. DG MARKT underlined that it had not invited the complainant to submit an application to the Greek Ministry of Education, but had only provided her, for her information, with the contact details of the office in charge of matters relating to the recognition of professional qualifications. This office, which was part of the Greek Ministry of Education, was entrusted with the task of advising citizens in matters relating to the recognition of professional qualifications. DG MARKT stressed that, according to the information provided by the Greek authorities, the Greek Ministry for Health continued to be the authority in charge of dealing with requests for the recognition of the professional experience of the complainant's client. The contact address of the service concerned was provided.

26. In its letter of 25 November 2008, DG MARKT pointed out that it had based itself on the written information provided by the Greek authorities, not on contacts by telephone. DG MARKT stressed that this information had not been challenged by the other complainants, who had had similar problems and whose cases had in the meantime been solved. It added that no new complaint comparable to that of the complainant's client had been submitted to it.

27. As regards the assessment of the file of the complainant's client, DG MARKT pointed out that the Commission, in its role as guardian of the Treaty, could ascertain whether the Greek authorities effectively proceeded to a comparison of the relevant professional qualifications. As to the substance of the case, DG MARKT recalled that it had already informed the complainant that, in view of the fact that her client's professional education dated back to 1993 and that she did not seem to have any relevant professional experience, the Greek authorities might be entitled to require possibly far-reaching compensatory measures. However, this was a matter for the Greek authorities, and the Commission could not express its views as regards the assessment of each individual case by them. This was essentially a factual issue, and possible appeals could be submitted to national courts.

28. The Commission concluded by saying that it wished to invite the complainant once again to submit a request for the recognition of the professional qualifications of her client to the competent Greek authority. DG MARKT recalled that decisions on such requests had to be taken within a maximum period of four months. It added that if it were to emerge that the Greek authorities failed properly to apply the procedure foreseen by Directive 2005/36, the complainant remained free to complain to the Commission again. In these circumstances, DG MARKT reiterated its intention to propose to the Commission to close the present case.

29. In its opinion, the Commission further submitted that, in its letters of formal notice, it had clearly indicated to the Greek authorities what the relevant rules of Community law were, including the deadlines for handling such cases. This infringement case had allowed the Commission to obtain precise commitments from the Greek authorities and to solve the cases of the other complainants. The Commission also referred to the discretionary powers it has in this area.

30. As regards the allegation that it had failed to establish whether her client should, on the basis of her qualifications, be recognised as a self-employed cosmetician, the Commission referred to the answers it had already provided to the complainant.

31. The Commission concluded by saying that it considered that it had correctly dealt with the complainant's infringement complaint.

32. The complainant did not submit observations on the Commission's opinion. However, she forwarded to the Ombudsman a copy of a letter she had addressed to DG MARKT on 9 December 2008 and in which she replied to the latter's letter of 25 November 2008.

33. In this letter, the complainant submitted that she did not understand why the Commission had sent two letters of formal notice, the first on 18 October 2006 and the second on 23 October 2007, without adopting sanctions for an infringement which, in her view, continued to exist.

34. The complainant argued that she had not been informed by DG MARKT which further steps her client needed to take. The information provided by DG MARKT was also contradictory in her view.

35. The complainant pointed out that it was possible for her client to turn to a body called 'DOATAP'. However, the costs for such an application were disproportionate on account of the documents that were required for such an application.

36. The complainant added that she would submit an application to the Greek Ministry of Health. However, only those documents that were required under Community law would be enclosed with this application. The complainant stated that, given that she had already made an application in 2006, she considered that she could not be obliged to make a new application involving completely different enclosures and increased costs for translation and attestation. She noted that if this application were to be rejected, she would renew her complaint to the Commission.

The Ombudsman's assessment

37. Before dealing with the case at hand, the Ombudsman considers it appropriate to underline that the opinion submitted by the Commission was exemplary, in that it provided all the necessary information, that it was well-structured and that copies of all relevant documents were enclosed with it.

38. The Commission has interpreted the complainant's allegation that it failed properly to handle her infringement complaint, as concerning both the procedure that had been followed and the result reached.

As regards procedural aspects

39. As far as the Ombudsman can see, the complainant did not, in her complaint, express any specific grievances regarding the procedure followed by the Commission. In any event, and with one exception, the Ombudsman takes the view that the way in which the Commission handled the complainant's infringement complaint does not give rise to any concerns. The Commission explained that the need for it first to translate and analyse the Greek authorities'19 January 2007 reply to its letter of formal notice effectively prevented it from providing a substantive reply to the infringement complaint until five months after it had been lodged. Given that this letter of formal notice concerned cases similar to those of the complainant, the explanation provided by the Commission appears to be reasonable. It should further be noted that the Commission kept the complainant informed throughout the course of the infringement procedure. The Ombudsman is pleased to note that the letters addressed to the complainant in this context were detailed and informative. In addition, they properly dealt with the issues raised by the latter.

40. In her letter to DG MARKT of 9 December 2008, the complainant queried the fact that the Commission had sent two letters of formal notice. However, it emerges from the evidence provided to the Ombudsman that the second letter of formal notice appears to have been sent because (a) the legal framework had changed, that is, Directive 1999/42 had been replaced by Directive 2005/36, and (b) the Commission wished to include the complainant's case in the infringement procedure. This approach appears perfectly sensible. As a matter of fact, including the complainant's case in the ongoing infringement procedure enabled the Commission to obtain an answer from the Greek authorities concerning this specific case.

41. The only aspect which gives rise to possible concerns are the dates on which the complainant's letter of 6 November 2006 was registered as an infringement complaint and the time when the complainant was informed accordingly. Point 3 of the Commission's Communication on relations with the complainant in respect of infringements of Community law[3] (the "Communication") provides 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." The date of registration is clearly important for complainants. Point 8 of the Communication provides that, "[a]s a general rule, Commission departments will investigate complaints 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 Communication does not contain a precise rule concerning the date on which infringement complaints need to be registered. However, its point 4 provides that the Commission "shall issue an initial acknowledgement of all correspondence within fifteen working days of receipt" and that "[c]orrespondence registered as a complaint shall be acknowledged again by the Secretariat-General within one month from the date of despatch of the initial acknowledgement. This acknowledgement shall state the case number of the complaint, which must be quoted in any correspondence." It is thus clear that a letter informing the complainant of the registration of his infringement complaint must be sent within a maximum period of less than 2 months (15 working days plus one month) upon receipt. The Ombudsman considers that in the absence of more specific rules concerning the date of the registration itself, it is good administrative practice to register infringement complaints as rapidly as possible.

42. In the present case, the complainant was only informed by a letter of 19 April 2007 that her letter of 6 November 2006 had been registered as an infringement complaint. It is thus clear that the Commission did not respect its Communication in this case as regards the period of time within which the (second) acknowledgment of receipt should be sent. Although the letter of 19 April 2007 does not indicate the date when the infringement complaint was registered, it is highly likely that this date coincided with the date when the acknowledgement was sent. In that case, the Commission would also have failed to comply with its duty to register infringement complaints as rapidly as possible, given that nearly five months had passed since the complainant's letter of 6 November 2006 had been received. The need to translate and analyse the Greek authorities' reply of 19 January 2007 to the letter of formal notice explains why the Commission was unable to provide an earlier reply on the substance of the complainant's infringement complaint. However, this need does not justify the fact that the infringement complaint was only registered as such nearly five months after it had been lodged or that the complainant was only then informed that the registration had taken place.

43. Given that the deficiency identified above was not raised by the complainant, the Ombudsman considers that it is both sufficient and appropriate to make a further remark in this regard.

As regards substance

44. As regards the substance of the case, it should first of all be underlined that the advice given by the Commission was clear and consistent, i.e., that the complainant should make a formal application to the Greek Ministry of Health. The Ombudsman notes that the Commission's reference to a contact person in the Greek Ministry of Education appears to have caused some confusion for the complainant. This is regrettable. However, the Ombudsman considers that it emerges from the evidence submitted to him that this contact person had been indicated by the Commission only as a source of possible information concerning the application the complainant needed to make. One would have expected that such a contact person was also working in the Ministry of Health, which, according to the information submitted by the Commission, is competent to deal with requests for the recognition of professional qualifications, rather than in the Ministry of Education. However, the Commission is clearly not responsible for any confusion that this state of things might cause.

45. As regards the advice as such, the Ombudsman understands that, on the occasion of telephone conversations with Greek ministries, the complainant seems to have received information suggesting that the Greek Ministry of Health is not the appropriate authority to deal with requests for the recognition of professional qualifications.

46. The Commission has explained, however, that the Greek authorities have informed it in writing that the Greek Ministry of Health is the appropriate authority to which such requests should be addressed. It furthermore referred to the fact that this claim had not been challenged by the other complainants, whose cases had given rise to the infringement procedure and whose problems had in the meantime been solved. On this basis, the Commission took the view that the complainant had the possibility of submitting an application to the Greek Ministry of Health and that its case could therefore be closed.

47. The Ombudsman considers this approach to be convincing. On the basis of the information that appears to have been available to it, the Commission could indeed arrive at the conclusion that the complainant had turned to the wrong authority and that the problem could be solved by her submitting a request to the competent ministry. It is true that it cannot entirely be excluded that the advice given by the Commission, which in its turn was based on the information provided by the Greek authorities, may turn out to be incorrect. However, the Commission has drawn the complainant's attention to the fact that such requests need to be dealt with by national authorities within a maximum period of 4 months. The Commission added that the complainant remained free to turn to it again if it were to emerge that the Greek authorities failed properly to apply the procedure foreseen by Directive 2005/36. Judging by the way in which the Commission has handled the complainant's case so far, the Ombudsman is confident that any such complaint would be taken most seriously by the Commission and that appropriate steps would be taken by it to deal with such an eventuality.

B. Conclusions

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

No maladministration was found as regards the way in which the Commission handled the complainant's infringement complaint.

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

FURTHER REMARK

The Ombudsman considers that infringement complaints should be registered as such as rapidly as possible. It would therefore be advisable if the Commission could review its practice so as to ensure that any possible delays concerning this registration are avoided.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 19 June 2009

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[1] OJ 1999 L 201, p. 77.

[2] OJ 2005 L 255, p. 22.

[3] 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.