THE BACKGROUND TO THE COMPLAINT

1. The complainant is a Polish construction worker who worked in the UK for five years, from 27 July 2004 until 28 November 2008. As a result of the crisis in the construction industry, he became unemployed.

2. He immediately applied for a Jobseeker's Allowance ('the Allowance'). This is a benefit to which unemployed persons may be entitled under British law. This application was made on the basis of former Article 39 of the EC Treaty[1] (Article 45 TFEU) and of Directive 2004/38/EC[2] on the right of citizens of the European Union and their family members to move and reside freely within the territory of the EU ('Directive 2004/38), as transposed into UK law. His application was refused by the relevant British authorities. On 7 April 2009, he appealed against this decision to the English courts.

3. On 28 April 2009, the complainant lodged a complaint against the UK with the Commission. He considered that he was discriminated against, and that the British authorities' refusal to award him the Allowance constitutes an infringement of EU law. In his complaint, he specified the provisions of EU law which he considered had been infringed in his case, namely, the above Article 39 of the EC Treaty; Regulation (EEC) 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community[3] ('Regulation 1408/71'); Regulation (EEC) 1612/68 of the Council on freedom of movement for workers within the Community[4] ('Regulation 1612/68'), and the judgment in case C- 249/83 Hoecks[5]. He specifically complained against the UK authorities' decision to refuse to award him the Allowance. He explained that, from July 2004 until November 2008, he had worked in the UK, both as an employee, and on a self-employed basis, and that he had paid tax and social security contributions. The UK authorities' refusal to award him the Allowance meant that he was not receiving equal treatment to that awarded to UK nationals. He pointed out that the UK authorities argued that he was not entitled to the Allowance because, "for benefit purposes only", he did not meet the criteria to have the right to reside in the UK.

4. On 15 May 2009, the complaint was received by the Secretariat-General of the Commission, and registered under reference SG/DC(2009)A/4017. The complainant was sent an acknowledgement of receipt of his complaint, and he was informed that his case had been assigned to DG Employment, Social Affairs and Equal Opportunities.

5. On 12 June 2009, the above DG wrote to the complainant informing him that it had just written to the UK authorities requesting them to investigate why he had not been awarded the Allowance. The Commission stated that it would keep the complainant informed of the UK authorities' response.

6. The Commission wrote to the UK authorities on the same date. It pointed out that the right of residence should be granted in accordance with Directive 2004/38, Article 7(3), which provides that a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (i) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job seeker with the relevant employment office; (ii) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than one year or after having become involuntarily unemployed during the first twelve months and has registered as a job seeker with the relevant employment office. In this case, the status of worker should be retained for no less than six months. In light of the foregoing, the Commission asked the British authorities to investigate the complainant's case, and explain why the complainant had been refused the Allowance.

7. On 18 July 2009, he complainant wrote to the Commission again, urging it to take action. On 5 August 2009, the Commission replied, stating that the UK authorities had not yet provided any information on his case.

8. On 6 August 2009, the British authorities sent a holding letter to the Commission.

9. The day before, on 5 August 2009, a UK Court decided in the complainant's favour. The Court found that the complainant met all requirements under UK law to be entitled to the Allowance. The Court held, in particular, that "to refuse the appellant the right to the claimed benefit in the very particular circumstances of this case where the appellant has been working and paying tax and NI contributions in the UK for almost 5 years would be unjust and inconsistent with the appellant's rights under Articles 18 and 39 of the EC Treaty".

10. In a letter dated 19 August 2009, the complainant informed the Commission that, despite the said Court judgment, he had still not been awarded the Allowance. He concluded by saying: "I hope you will assist me effectively to [make the national authorities] comply with EU law."

11. The Commission replied on 7 September 2009. It informed the complainant of the following; (i) the British authorities had sent the Commission only a holding reply, stating that the complaint was still being investigated; (ii) in its initial letter to the UK authorities, the Commission had outlined its position regarding the complaint. The Commission could only further intervene, once a final decision had been taken by the UK authorities; and (iii) the Commission would inform him as soon as it received a substantive response from the UK authorities.

12. The Commission did not contact the complainant again before 5 October 2009, the date on which the complainant submitted his complaint to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

13. In his complaint to the Ombudsman, the complainant alleged that the Commission failed to handle his complaint properly.

14. He claimed that the Commission should handle his complaint properly and without delay.

THE INQUIRY

15. On 9 November 2009, the Ombudsman opened an inquiry. He sent the complaint to the Commission with a request for an opinion.

16. On 20 November 2009, the complainant informed the Ombudsman that he had "finally" received the Allowance from the UK authorities, but only for the period commencing 4 June until 26 October 2009. He believed that he should be paid the Allowance for the period which started on the date he registered as being unemployed, that is, from 1 December 2008 onwards.

17. On 27 January 2010, the Commission sent its opinion. On 8 February 2010, it sent a translation of the opinion into Polish, which was then forwarded to the complainant.

18. On 17 March 2010, the complainant sent his observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Alleged improper handling of the complaint and related claim

Arguments presented to the Ombudsman

19. In its opinion dated 27 January 2010, the Commission took the view that it had adequately examined and responded to the complainant’s complaint concerning the UK authorities' refusal to award to him the Allowance. Attached to the Commission's opinion were copies of its relevant correspondence with the UK authorities.

20. The Commission explained that the complainant contacted it on 15 May 2009, and that the complaint was referred to the UK authorities on 12 June 2009, with a request for an investigation. This request was made under the established cooperation with the members of the Administrative Commission on Social Security for Migrant Workers (CASSTM) with the aim of resolving the complaint. The Commission recalled, in this respect, that the above cooperation was established on the basis of Articles 81, 84 and 84(a) of Regulation 1408/71, and that it is in line with the Commission Communication "A Europe of results – applying Community law" (COM(2007)5012 final).

21. On 24 July 2009, the complainant informed the Commission that his complaint had still not been resolved. Therefore, on 28 July 2009, the Commission contacted the UK's new representative in the Administrative Commission, and asked what was being done about the complaint.

22. On 13 August 2009, the Commission received a holding reply from the UK authorities stating that the complainant’s residence status was being investigated and that they were not, therefore, in a position to reply to the points raised in the Commission’s letter.

23. On 5 November 2009, the Commission received a substantive reply from the UK authorities. They clarified that the complainant was not awarded the Allowance because, at the time of the initial proceedings, he did not comply with "the right to reside" test. They went on to explain that they decided to award the Allowance as of 4 June 2009, since, by that time, the complainant had registered under the UK Worker Registration Scheme, a condition which had to be satisfied before the Allowance could be awarded. They stated that their decision did not affect the claim for the period from 8 January to 3 June 2009, in respect of which the complainant's appeal had not yet been decided. The UK authorities apologised for the delay in responding, which they explained was due to the complicated nature of the complaint[6].

24. Based on the reasoning provided by the UK authorities in their substantive reply, the Commission decided (i) to register the complainant's complaint and (ii) join it to the ongoing infringement procedure against the UK concerning the application of a residence test as a qualifying condition for social security benefits within the scope of Regulation (EEC) 1408/71. The Commission stated that it would inform the complainant thereof without delay.

25. Finally, the Commission explained that it had had to contact the UK authorities because it was not possible to conclude from the information initially provided by the complainant whether the UK authorities had failed to apply EU social security law correctly by refusing to award the Allowance to the complainant.

26. In addition, it was apparent from the documents submitted by the complainant that the initial refusal of the UK authorities was being reviewed in the appeal procedure, and that the final decision had not yet been made. Therefore, until the UK authorities' substantive reply was received, the Commission could neither intervene in the complainant’s favour, nor start an infringement procedure. In this last respect, the Commission recalled the established case law that "it is for the Commission to determine whether it is expedient to take action against a Member State and what provisions, in its view, the Member State has infringed and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine its choice of time cannot affect the admissibility of the action(C-255/05 Commission v Italy [2007] ECR I-5767, paragraph 38.)".

27. In his observations, the complainant expressed his dissatisfaction with the Commission's explanation. He found that the Commission was being too lenient with the British authorities. He considered that they were delaying their reply to the Commission, and that they had persistently infringed EU law by refusing to award unemployment benefits to many Polish workers, who, as a result, had been obliged to leave the UK.

28. In particular, the complainant found that the Commission should not have delayed its decision until the British authorities had made their own, final decision on his complaint. He argued that EU law allows the Commission and national authorities to act in parallel when investigating alleged infringements of EU law.

29. The complainant emphasized that, when he arrived in the UK on 12 October 2004, he already complied with the "residence test" by the mere fact that he is an EU citizen. As from that date, he was both living and working legally in the UK. He also stated that he had complied with the British Workers Registration Scheme and attached relevant documents to his complaint to the Ombudsman. On the basis of these documents, he considered that he was entitled to UK unemployment benefits as of 1 December 2008, but that the British authorities had ignored this fact. He considered this attitude discriminatory. Finally, he could not understand why the British authorities did not respect the British judge's decision in his favour. He quoted the authorities as saying "… we believe the Judge erred on a matter in law".

30. The complainant considered that, given the above behaviour of the British authorities, the Commission did not properly handle his complaint. In his view, the Commission limited its action to writing to the British authorities and awaiting their replies. The Commission only informed him of how his complaint was progressing if he asked it to do so.

31. He referred to the Commission's "e-mail sent to him on 12 December 2009", in which the Commission stated that (i) it had received the substantive answer from the British authorities; (ii) "his complaint is unclear" and would be "reopened". He pointed out that his infringement complaint clearly referred to the EU legal provisions which he believed had been infringed by the UK authorities, but the Commission had never taken a position on his assertions, and had never explained which EU provisions had been infringed.

32. He wondered why the exhaustive documentation he had attached to his infringement complaint was not a sufficient basis on which the Commission could rely to make its own independent decision as to whether the British authorities had applied EU law wrongly.

33. The complainant concluded by asking the Ombudsman to clarify why the UK authorities infringe the rights of EU citizens, and why the Commission does not take proper actions despite the number of citizens' infringement complaints against the UK.

The Ombudsman's assessment

Preliminary remarks

34. The Ombudsman first recalls that, pursuant to Article 228 of the TFEU, he is not empowered to inquire into matters at national level, even if the complaints submitted to him concern allegations that national public administrations are failing to respect citizens’ rights under Union law. Such complaints fall within the competence of national Ombudsmen and similar bodies[7]. This reflects the Community principle of subsidiarity. For that reason, he cannot comply with the complainant's claim that he should investigate the alleged wrongdoings by the British authorities.

35. The Ombudsman's inquiry will thus first cover the Commission's actions following the complainant's infringement complaint dated 28 April 2009, and whether its actions complied with the Commission's Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law[8] ('the 2002 Communication').

36. The Ombudsman notes that the complainant referred to the Commission's e-mail of 12 December 2009. Neither the Commission nor the complainant submitted a copy of that e-mail to the Ombudsman. The Ombudsman does not, however, consider it useful to investigate further what its actual content might have been. Since it was presumably written before the Commission sent its opinion to the Ombudsman, it is reasonable to assume that the content of the Commission's opinion prevailed over the views expressed in the said e-mail, if, indeed, they differed at all.

37. The second aspect of the Ombudsman's inquiry will thus be to assess whether it was reasonable for the Commission to decide, as announced in its opinion, that the complainant's infringement complaint would be dealt with in the framework of the ongoing infringement procedure against the UK on the application of the residence test as a qualifying condition for granting social security benefits within the scope of Regulation (EEC) 1408/71.

The procedural steps taken by the Commission before deciding to join the complaint to an ongoing infringement procedure against the UK

38. The 2002 Communication offers a series of important guarantees as regards the handling of infringement complaints by the Commission. The basic rule is that all correspondence which is likely to be investigated as a complaint should be registered in the central register of complaints kept by the Secretariat-General of the Commission[9] and then acknowledged[10]. This ensures that the complaint is dealt with according to the Commission's internal administrative procedures for handling infringement cases. Furthermore, the 2002 Communication foresees that the Commission will inform the complainants in writing of each decision it makes regarding the complaint. For example, if it decides to issue a formal notice or a reasoned opinion, to refer the complaint to the Court, or to close the complaint[11]. Moreover, the decision to issue a formal notice, or close the complaint, should be made within twelve months of its registration[12].

39. On the basis of the evidence available, the Ombudsman understands that the Commission took the following procedural steps.

40. On the infringement complaint form, the complainant indicated which EU law provisions he considered the UK authorities had infringed (see paragraph 3 above). He sent his complaint to the Commission on 28 April 2009. On 15 May 2009, the Secretariat-General received his complaint and registered it in the Commission's ADONIS system under the specific reference number given to correspondence relating to the application of EU law. On the same date, the Secretariat-General sent the complainant an acknowledgement of receipt, informing him that his correspondence had been assigned to DG Employment, Social Affairs and Equal Opportunities ('DG Employment'). On 26 May 2009, the Secretariat-General forwarded the complaint to the above DG, and a copy thereof to the Commission's Legal Service, by using an internal form, the "Bodereau d' envoi du courrier de la Commission". The Secretariat-General stated on this form that if DG Employment did not inform it by 22 June 2009 that the complainant's correspondence should not be registered as a complaint, it would do so, ex officio. The Secretariat-General also invited DG Employment to follow up this correspondence in accordance with the Code of Good Administrative Behaviour. On 12 June 2009, DG Employment sent the complainant a first letter informing him that it was dealing with "his complaint" of 15 May 2009, and that it had asked the British authorities to open an investigation. On 12 June 2009, the Commission asked the British authorities for clarification. Subsequently, DG Employment replied to the complainant's letters requesting further information, namely, on 5 August 2009, replying to the complainant's letter dated 18 July 2009, and on 7 September 2009, replying to the complainant's letters dated 16 and 17 August 2009.

41. The Ombudsman considers that all the steps taken by the Commission complied with the requirements of the 2002 Communication and the Commission's Code of Good Administrative Behaviour[13] which foresees fourteen working days, starting from the date of receipt, for a reply to citizens' correspondence.

42. The Ombudsman is puzzled by the Commission's explanation that it did not register the complaint dated 28 April l 2009 as an infringement complaint until after it had received the UK authorities' substantive reply on 5 November 2009. The Ombudsman recalls in this respect that all correspondence which is likely to be investigated as a complaint is registered in the central register of complaints unless it does not comply with the conditions provided for in the second paragraph of point 3 (Recording of complaints) of the 2002 Communication[14]. It appears, however, that the present complaint, dated 28 April 2009, complied with all these conditions. In particular, and as correctly pointed out by the complainant, his complaint contained exhaustive documentation and clearly specified which EU law provisions might have been infringed.

43. Nevertheless, the Ombudsman notes that, even without formally registering the complaint, the Commission dealt with the complaint as such from the very outset. In its first letter to the UK authorities dated 12 June 2009, it referred to the complainant's "complaint" and asked the UK authorities to carry out an investigation.

44. The Ombudsman further notes the complainant's view that the Commission should not have consulted the UK authorities. He considered that the Commission should have been able to conclude from the documents he submitted with his infringement complaint that the UK had infringed EU law.

45. The Ombudsman does not consider that the Commission's above decision should be challenged. He recalls in this respect that he has consistently found that, once the Commission has registered correspondence as a complaint, it is free to choose how to deal with the complaint. It may, for instance, (i) refer the complaint to the national authorities via the usual channels or via the mechanism established on the basis of Regulation 1408/71; (ii) postpone its administrative handling of the complaint if a national court or a competent national body is dealing with the same issue and (iii) use the EU Pilot programme. Whichever option is adopted, the Commission should keep complainants informed of each step taken in relation to their complaints.

46. In the present case, the Commission informed the complainant of the action it had taken in relation to his complaint, by contacting him directly (albeit concisely), and by providing him with a detailed opinion on his complaint.

47. In light of the findings in paragraphs 40, 42 and 45, the Ombudsman does not find an instance of maladministration as regards this aspect of the complaint.

48. The Ombudsman regrets, however, that the Commission's own direct contact with the complainant was not more transparent, and that, unlike with its opinion, it did not provide him with copies of its correspondence with the UK authorities concerning his complaint. In this respect, the Ombudsman will make a further remark below.

Decision to join the complainant's complaint to an ongoing infringement procedure against the UK

49. As regards the Commission's decision to include the complainant's complaint in an ongoing (horizontal) infringement procedure against the UK concerning the application of the residence test as a qualifying condition for social security benefits within the scope of Regulation (EEC) 1408/71, the Ombudsman points out that, in order to do so, the Commission should have first concluded that the present complaint also concerned an infringement of Community law.

50. One of the fundamental tasks of the Commission in its role of "guardian of the Treaty" is to ensure that EU law is correctly applied in all Member States. In carrying out its duty, the Commission investigates potential infringements of EU law which come to its attention, largely as a result of citizens' complaints. If, as a result of its inquiry, the Commission considers that a Member State has failed to fulfil its obligations under the Treaties, Article 258 of the TFEU gives it the power to start infringement proceedings against the responsible Member State, and if necessary, to bring the matter before the Court of Justice of the EU.

51. According to the case-law of the EU 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 Community law[15].

52. In circumstances such as those outlined above, the Commission has the right to decide whether or not to group individual complaints involving an incorrect transposition or application of EU law into a single horizontal procedure. Such a decision does not appear to damage the rights of individual complainants. If the Commission were to take a horizontal procedure before the Court of Justice of the EU, complainants could rely on the latter's decision before their competent national courts in order to have the EU Court of Justice's judgment enforced with regard to the specific complaint they submitted to the Commission.

53. The Ombudsman therefore takes the view that, by deciding to join the complainant's infringement case to the horizontal infringement procedure, the Commission implicitly concluded that there had been an infringement of EU law in the complainant's case. He also concludes that the Commission acted within the limits of its legal authority when it joined the complainant's case to the ongoing horizontal infringement procedure against the UK.

54. In light of the above, the Ombudsman does not find an instance of maladministration as regards this aspect of the complaint.

55. Finally, the Ombudsman notes that, in its opinion, the Commission declared that it would inform the complainant without delay of the horizontal infringement procedure to which his complaint was joined. Individual complainants should continue to enjoy the procedural guaranties granted to them by the 2002 Communication, and therefore be individually informed of any development in the horizontal procedure. The Ombudsman trusts that the Commission will inform the complainant, in a timely manner, and with transparency, of such developments.

C. Conclusions

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

There has been no maladministration.

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

FURTHER REMARK

When the Commission informs complainants of the administrative steps it is taking to investigate their infringement complaints, it could, as far as possible, provide them with details of its contacts with national authorities. In this way, complainants would be informed of what the Commission is doing to address their concerns, thereby avoiding the need for them to complain to the Ombudsman in order to receive such information in the course of the latter's inquiry.

The Ombudsman also welcomes the Commission's commitment to inform the complainant in a timely manner, and with transparency, of future developments in the on-going horizontal infringement procedure against the UK.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 21 July 2010

---

[1] Article 39.2 EC: [Freedom of movement of workers] shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

[2] OJ 2004 L 158, p.1.

[3] OJ 1971 L 149, p.2.

[4] OJ 1968 L 257, p.2.

[5] Case C-249/83 Hoecks [1985] ECR-1958, paragraph 22.

[6] The relevant sections of this letter read as follows: "The 2003 Accession Treaty provides for Member States to regulate access to their labour markets by nationals from eight of the then acceding states, including Poland. The UK continues to regulate access to its labour market under this Treaty. As a result, the complainant is allowed access to the UK labour market as far as he complies with the UK "worker registration scheme". This scheme does not, however, apply to self-employed persons "given that the 2003 Treaty does not allow Member States to derogate from the right of [nationals from] an accession State to self-establish." According to the British authorities, the complainant did not comply with the Worker Registration Scheme until 4 June 2009, which was the date on which the Home Office issued him a registration certificate, giving him the right to reside in the UK as a work seeker as of 4 June 2009, and thus making him eligible to claim a Jobseeker Allowance from that date onwards.

[7] On the basis of the evidence submitted by the complainant, the Ombudsman notes that on 24 May and 1 June 2009, the complainant approached the UK Parliamentary and Health Service Ombudsman complaining against Jobcentreplus. The Parliamentary and Health Service Ombudsman invited him to make proper administrative approaches and to then resubmit his complaint.

[8] COM(2002)141final.

[9] 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."

[10] 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 …"

[11] The first paragraph of point 7 (Communication with the complainants) of the 2002 Communication provides: "The Commission departments will contact complainants and inform them in writing, after each Commission decision (formal notice, reasoned opinion, referral to the Court or closure of the case) of the steps taken in response to their complaint."

[12] The first paragraph of point 8 (Time limit for investigating complaints) of the 2002 Communication provides: "As 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."

[13] OJ 2000 L 267.

[14] The second paragraph of point 3 (Recording of complaints) of the 2002 Communication provides for six exceptions to the above basic rule. Correspondence which is not to be investigated as a complaint shall not be recorded in the central registry of complaints if:

• it is anonymous, fails to show the address of the sender or shows an incomplete address;
• it fails to refer, explicitly or implicitly, to a Member State to which the measures or practice contrary to Community law may be attributed;
• it denounces the act or omissions of a private person or body, unless the measure or complaint reveals the involvement of public authorities or alleges their failure to act in response to those acts or omissions. In all cases, the Commission shall verify whether the correspondence discloses behaviour that is contrary to the competition rules (Articles 81 and 82 EC);
• it fails to set out a grievance;
• it sets out a grievance with regard to which the Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant;
• it sets out a grievance which clearly falls outside the scope of Community law.

[15] 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).