The complaint to the European Commission

1. The complainant is a Maltese national, whose spouse, a Pakistani national, currently resides together with his children in Pakistan. According to the complainant, the competent Maltese authorities have not replied to his many requests concerning his spouse’s right to reside in Malta and to move freely within the Union, and his children’s right to have Maltese citizenship. On 1 May 2019, the complaint submitted to the Commission an infringement complaint concerning his spouse’s right to freedom of movement in the EU, and his children’s rights to EU citizenship.^[1]

2. On 10 May 2019, the complainant submitted another infringement complaint against the Maltese authorities regarding the alleged violation of his right to vote in the 2019 European Parliament elections^[2].

3. On 15 May 2019, the complainant sent a letter to the Commission, which, according to documents submitted by the complainant, concerned criminal court proceedings that are currently ongoing against him in Malta. The complainant stated that since a court in Pakistan has already acquitted him for the same facts, the Commission, based on the principle “ne bis in idem”^[3], should ask the Maltese courts to suspend their proceedings against him.^[4]

4. On 6 June 2019, the complainant sent a letter to the Commission repeating his infringement complaint of 1 May 2019. He also stated that he has been discriminated against on religious grounds, and referred in that regard to Directive 2000/78/EC^[5] and Directive 20000/43/EC^[6].

The European Commission’s response to the complainant

a. The infringement complaint concerning the EU rights of the complainant’s family members

5. On 6 June 2019, the Commission sent a pre-closure letter to the complainant concerning his complaint of 1 May 2019, followed by further clarifications sent on 11 July 2019. In sum, the Commission replied to the complainant that according to settled case-law, it is for Member States to lay down the conditions for the acquisition and loss of nationality.^[7] Thus, it is for the national courts to review the legality of any national decision on this matter.

6. Concerning the complainant’s spouse, the Commission referred to Article 21(1) of the Treaty on the Functioning of the European Union (‘right to move and reside freely within the territory of the Member States’), ^[8] and Directive 2004/38/EC^[9] which states that “family members of Union citizens enjoy the right of free movement if they accompany or join the Union citizen in a Member State other than the Member State of the Union citizen's nationality”. It also noted that it “is not aware of a generalised problem in Malta with the issuance of residence cards to family member of Union citizens”.

7. The Commission explained to the complainant that it is not “an appeal body regarding the misapplication of EU law in an individual case”. It added that it enjoys discretionary power in “deciding whether or not, and when to start an infringement procedure or to refer a case to the Court of Justice”^[10], and that “the primary purpose of the infringement procedures is to ensure that the Member States give effect to EU law in the general interest, not to provide individual redress”. 

8. Regarding the complainant’s references to Directive 2000/78/EC and Directive 2000/43/EC, and his allegation that he was discriminated against by the Maltese administrative and judicial authorities because of his religion, the Commission stated that the first directive applies only in the area of employment, while the second refers to discrimination on grounds of race and ethnic origin only; therefore, none of these directives was applicable in his case.^[11] For these reasons, the Commission closed the case.

b. The infringement complaint concerning the complainant’s right to vote in the 2019 European Parliament elections

9. On 20 May 2019, the Commission sent to the complainant an acknowledgement of receipt of his infringement complaint of 10 May 2019.

c. The complainant’s letter concerning ongoing criminal proceedings in Malta

10. On 20 June 2019, the Commission replied to the complainant’s letter of 15 May 2019. It informed the complainant that it has no competence to intervene in individual cases, and that the administration of justice is within the Member States’ competence, except in a case of a violation of EU law, which does not appear to be the complainant’s case. The Commission added that it has no jurisdiction over acts of third countries, such as Pakistan. Moreover, there is no mechanism by which a Pakistani ‘criminal judgement or bail order could be registered’ by the Commission.^[12]

11. The complainant was not satisfied with the Commission’s responses and turned to the Ombudsman. In his view, the Commission wrongfully refused to deal with his infringement complaints. In addition, the complainant claimed that the Commission failed to deal with his infringement complaint of 10 May 2019 (the 2019 European Parliament elections) within the 2 months deadline set in Article 17 (reasonable time-limit for taking decisions) of the European Code of Good Administrative Behaviour (ECGAB ^)[13].

The European Ombudsman's finding

a. The infringement complaint concerning the EU rights of the complainant’s family members

12. The Ombudsman finds that the Commission was right to state that under EU law, the conditions and procedures for the acquisition and loss of a Member State’s citizenship are regulated by the laws of each Member State, and that national courts are best placed to review the legality of decisions taken in this field by the Member State’s administrative bodies.^[14] Thus, the alleged refusal by the Maltese authorities to grant citizenship to the complainant’s children is a domestic, and not an EU issue. Therefore, the Commission was right to find no infringement of EU law in this case.  

13. Concerning the complainant’s arguments that his spouse had a right to freedom of movement within the EU, as the Commission clearly explained to the complainant, “family members of Union citizens enjoy the right of free movement if they accompany or join the Union citizen in a Member State other than the Member State of the Union citizen's nationality”. In this case, it is clear from the documents submitted by the complainant that he resides in Malta and he wishes that his spouse joins him in Malta, and not in another Member State. Therefore, the Commission was right to conclude that the complainant’s concerns regarding his spouse’s situation did not fall under the scope of the EU rules on free movement of persons.

14. The complainant also argued that he has not received any reply by the Maltese authorities to his request for his spouse’s residence card in Malta. In that regard, the Ombudsman agrees with the Commission that in the absence ‘of a generalised problem in Malta with the issuance of residence cards to family member of Union citizens’, the infringement procedure is not designed to provide individual redress to EU citizens, but instead to deal with Member States' compliance with EU laws, in the general interest of the EU.^[15] Even if the Commission were to find that in this case Malta infringed EU law, it would not be in a position to ask the Member State’s authorities to issue the complainant’s spouse with a residence card. Only national courts can issue such injunctions to administrative authorities. Since the complainant failed to establish that the alleged breach of EU law concerns a general problem in Malta, the Ombudsman finds that the Commission was justified in closing the complainant’s case.

b. The infringement complaint concerning the complainant’s right to vote in the 2019 European Parliament elections

15. The Ombudsman notes that although the reasonable time-limit for taking a decision on a complaint, should not, in principle, exceed two months (Article 17 of the ECGAB), the Commission’s deadline for dealing specifically with infringement complaints is 12 months.^[16] Within that deadline, the Commission is expected to assess an infringement complainant and decide whether to start a formal infringement procedure against a Member State. Since the aim of that procedure is not to provide individual redress to EU citizens, but to deal with breaches of EU law of general interest, the Ombudsman finds that the 12 months deadline for dealing with infringement complaints is not contrary to Article 17 of the ECGAB.

c. The complainant’s letter concerning ongoing criminal proceedings in Malta

16. Concerning the criminal court proceedings against the complainant, the Ombudsman agrees with the Commission that “the administration of justice falls within the competence of the national authorities”. Moreover, the documents submitted by the complainant show that these proceedings do not concern issues of EU law. Nor can the Commission interfere with judgments issued by courts of third countries (Pakistan). The Ombudsman notes that the Commission has provided the complainant with sufficient explanations on this matter on nine occasions^[17]. The Commission’s conclusion that it is not in the position to intervene in the complainant’s individual case is correct.

Conclusion

17. Based on the information provided by the complainant, the Ombudsman finds no maladministration in this case.^[18]

 

Lambros Papadias

Head of Inquiries - Unit 3

Strasbourg, 25/07/2019

 

 

[1] Registered under the reference number CHAP (2019)1398.

[2] Registered under the reference number CHAP (2019)01370;

[3] Translation from Latin language is “not twice in the same thing”.

[4] The complainant referred to Article 14(7) of International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 19 December 1966; Article 527 of the Maltese Criminal Code; and Article 20 of the Rome Statute of the International Criminal Court. 

[5] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, available at the following website: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32000L0078.

[6] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, available at the following website: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32000L0043.

[7] Judgment of the Court of 7 July 1992, Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria, C-369/90, ECLI:EU:C:1992:295; Judgment of the Court of 2 March 2010, Janko Rottman v Freistaat Bayern, C-135/08, ECLI:EU:C:2010:104; and Judgment of the Court of 12 March 2019, M.G. Tjebbes and Others v Minister van Buitenlandse Zaken, C-221/17, Tjebbes ECLI:EU:C:2019:189.

[8] Treaty on the Functioning of the European Union, available at the following website: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT.

[9] Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68, available at the following website: https://eur-lex.europa.eu/legal-content/EN+/TXT/?uri=CELEX%3A32004L0038.

[10] Communication from the Commission, “EU law: Better results through better application”, available at the following website: https://eur-lex.europa.eu/legal-content/EN/TXT/?toc=OJ%3AC%3A2017%3A018%3ATOC&uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG.

[11] The Commission stated that Directive 2000/43/EC “does not cover access to justice” and “would not cover [the complainant’s] children’s request for Maltese citizenship”.

[12] The Commission also informed the complainant that it would discontinue any further correspondence as it has already replied to nine of his letters on these matters.

[13] The European Code of Good Administrative Behaviour, available at the following website: https://www.ombudsman.europa.eu/en/publication/en/3510.

[14] Judgment of the Court of 7 July 1992, Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria, C-369/90, ECLI:EU:C:1992:295; Judgment of the Court of 2 March 2010, Janko Rottman v Freistaat Bayern, C-135/08, ECLI:EU:C:2010:104; and Judgment of the Court of 12 March 2019, M.G. Tjebbes and Others v Minister van Buitenlandse Zaken, C-221/17, Tjebbes ECLI:EU:C:2019:189.

[15] Judgment of the Court of 14 February 1989, Star Fruit Company SA v Commission of the European Communities, Case 247/87, ECLI:EU:C:1989:58; page 16 of the Commission’s Communication on “Better results though better application”.

[16] Page 15 of the Commission’s Communication on “Better results though better application”.

[17] See Commission’s letters of: 9 September 2013, 20 January 2016, 30 September 2016, 13 February 2017, 21 September 2017, 29 January 2018, 27 June 2018, 13 December 2018 and 6 June 2019.

[18] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions