Decision of the European Ombudsman on complaint 723/98/BB against the European Commission

Dear Mr W.,
On 7 July 1998 you made a complaint to the European Ombudsman concerning the alleged lack or refusal of information, undue delay and negligence in replying to correspondence you have sent to the European Commission.
On 31 July 1998, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 11 November 1998 and I forwarded it to you with an invitation to make observations, if you so wished. On 19 November 1998, I received your observations on the Commission's opinion.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

On 28 November 1997, the complainant wrote to the European Commission complaining that the Finnish authorities had violated Regulation (EEC) N° 918/83 and that the Finnish customs officials had violated the Finnish Alcohol Law 306/97 by confiscating two bottles of 96% ethyl alcohol on entry to the Community. On 20 January 1998, the Commission DG XXI informed him that his letter had been forwarded to DG VI to be dealt with by the appropriate department. In this letter the Commission indicated that for any further information the complainant could contact the Head of Unit E.2 (DG VI).
On 27 April 1998, the complainant sent a letter to the Head of Unit E.2 requesting the Commission to intervene before the Finnish authorities. This request was repeated in a letter of 4 June 1998. The Commission did not reply to this correspondence.
On 7 July 1998, the complainant sent a complaint to the European Ombudsman.

THE INQUIRY

The Commission's opinion
In its opinion the Commission stated, in summary, the following:

- The complainant had explained that the Finnish authorities had confiscated two bottles of 96% vol alcohol imported from Estonia which according to him constituted a violation of Regulation (EEC) N° 918/83;

- The Commission sent a letter on 20 January 1998 informing the complainant that the appropriate department to deal with the matter was DG VI Unit E.2;

- On 27 April 1998, the complainant wrote to DG VI requesting for an intervention by the Commission before the Finnish authorities. This request was repeated in a letter sent on 4 June 1998 in which the complainant expressed his intention to complain to the European Ombudsman unless he received comprehensive information on how the Commission has dealt with the matter;

- Regulation (EEC) N° 918/83 does not confer an unconditional right to import the goods in question free of duty. Relief from duty applies only to products that can be legitimately imported, and a Member State can prohibit or restrict the importation of certain products for reasons such as protection of consumer health;

- No common market organisation of alcohol exists on the Community level;

- On 12 February 1998, the Finnish Government asked the Commission to include in the EC legislation a provision to confirm that the maximum alcohol content for spirit drinks should be 80 % and the matter has been discussed at the Implementation Committee for Spirit Drinks and the discussions are continuing;

- The matter raised by the complainant also has a connection with the wider question of the future of the alcohol monopoly in Finland, which is under detailed scrutiny by the Commission;

- The Commission regretted the fact that the complainant had not received a reply sooner, as his complaint concerns matters under discussion and, therefore, the Commission did not have the necessary elements for a definitive answer;

- The Commission promised to send a letter to the complainant without delay and a copy of it to the European Ombudsman for information.

The complainant's observations
The complainant maintained his complaint stating that until 19 November 1998 he had not received any reply from the Commission and that therefore the Commission had not followed the principles of good administration.

FURTHER INQUIRIES

The Commission had sent the reply to the complainant on 30 November 1998. The complainant acknowledged later that he had received this reply.
It needs to be mentioned that in its reply to the complainant the Commission did not apologise for the undue delay.

THE DECISION

1 Undue delay in replying to correspondence
1.1 The complainant alleges that the Commission failed to reply to his letter of 28 November 1997 in which he complained about breaches of Community law by the Finnish authorities as well as to the reminders he sent to DG VI on 27 April 1998 and 4 June 1998.
1.2 On 20 January 1998, the Commission had sent an acknowledgment letter to the complainant informing him that his letter had been forwarded to be dealt with by the appropriate department DG VI - Unit E.2. In its opinion the Commission claimed that the subject matter raised in the complainant's correspondence was being discussed and that the Commission did not have the necessary elements for a definitive answer. Therefore, the Commission had not replied to the complainant's correspondence.
1.3 Principles of good administrative behaviour require that complainants who write to the Commission receive a reply within a reasonable time.
1.4 It was only on 30 November 1998, after the Ombudsman had requested comments from the Commission that DG VI replied in substance to the complainant's letter sent on 28 November 1997. This cannot be considered as a reasonable time period for replying to correspondence. Therefore, the fact that the Commission only replied on 30 November 1998 to the complainant's correspondence of 28 November 1997 constitutes an instance of maladministration.
2 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

Principles of good administrative behaviour require that complainants who write to the Commission receive a reply within a reasonable time. Therefore, the fact that the Commission only replied on 30 November 1998 to the complainant's correspondence of 28 November 1997 constitutes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman has therefore decided to close the case.

FURTHER REMARKS

The Commission has explained in its opinion that it did not have the necessary elements in order to give a definitive answer to the complainant. This however, cannot constitute a reason for the Commission for failing to answer correspondence in due time.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN