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Decision of the European Ombudsman on complaint 1267/99/ME against the European Commission


Strasbourg, 24 August 2001

Dear Mr S.,

On 18 October 1999, you made a complaint to the European Ombudsman on behalf of Fria Åland concerning the alleged slow handling by the European Commission of a complaint you submitted to it in March 1998.

On 3 December 1999, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 1 March 2000. I forwarded it to you with an invitation to make observations, which you sent on 11 April 2000. On 8 September 2000, I asked the Commission for further information. The Commission sent its further opinion on 4 December 2000. I forwarded it to you with an invitation to make observations, which you sent on 12 January 2001. On 31 January 2001, I proposed a friendly solution to the Commission. The Commission replied on 20 April 2001. I forwarded the Commission's reply to you with an invitation to make observations, which you sent on 26 June 2001.

I am writing now to let you know the results of the inquiries that have been made.

To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.

The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.


THE COMPLAINT

In October 1999, the complainant lodged a complaint with the European Ombudsman on behalf of the association Fria Åland concerning a complaint it had submitted to the European Commission, DG XXI (now: Taxation and Customs Union DG), in March 1998.

In its complaint to the Commission, the complainant had alleged that trade between the Åland island and the Finnish mainland was favoured in an undue way compared to trade between Åland and other Member States. According to Article 3 of Protocol No 2 to the Act of accession of Finland, Åland is excluded from the territory of Finland as regards the application of Council Directive 77/388/EEC, which means that border tax has to be paid on trade between Åland and any Member State. The Finnish customs had issued a special simplified procedure for the trade between Åland and the Finnish mainland, which according to the complainant violated Articles 90 (former 95) and 12 (former 6) of the EC Treaty in that it favoured trade from Finland and thus discriminated against trade from other Member States.

In its complaint to the Ombudsman, the complainant put forward that shortly after the complaint had been submitted to the Commission, the association received a phone call from a Commission official who tried to convince it to drop the complaint. Since then, the association has not heard anything from the Commission and suspected that the Commission was deliberately delaying the handling of the complaint or even that the Commission had destroyed the documents. The association alleged undue delay on behalf of the Commission in its handling of the complaint.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission stated that it had received a letter dated 6 March 1998 from the complainant concerning alleged infringement of Community law in relation to border tax formalities between the Åland island and the Finnish mainland. The letter was linked to a number of other issues concerning the fiscal frontier between the Finnish mainland and Åland. For various complaints concerning different aspects of the creation of the tax border between Åland and the Finnish mainland, file IN/P/95/4812 had served as the main file and the complainant's letter was joined to this file. This file had been closed on 15 October 1997. The letter was not registered as a separate complaint because an infringement of Community law was not apparent on the basis of the specific circumstances invoked in the letter.

The Commission regretted that no reply was sent to the complainant, however it stated that in a phone call on 9 October 1998, the complainant had been informed of the general legal framework and of the information needed to establish whether a breach of Community law existed. Following this phone call, no further information was received from the complainant and since it was not possible to establish an infringement of Community law on the basis of the information already given by the complainant, the particular aspect presented by the complainant was not pursued further.

Moreover, the Commission underlined that the letter from the complainant represented one aspect of a general question of setting up fiscal frontier between the Finnish mainland and Åland. On the basis of different complaints, the Commission has examined and is continuing to examine the different aspects of this matter. Since the purpose of the infringement procedure is to get a Member State to comply with Community law, the general procedure of examination continues irrespectively of the outcome of single complaints relating to it.

The complainant's observations

In its observations, the complainant pointed out that the letter of 6 March 1998 showed a clear behaviour of the Finnish authorities, which the complainant considered to be in breach of Articles 12 and 90 of the EC Treaty and of Article 3 of Protocol No 2 to the Act of accession of Finland. It was thus remarkable that the letter had not been registered as a formal complaint. The Commission should at least register the letter as a complaint and treat the complainant equally to other complainants. If the Commission disagreed with the complainant's view as regards Finland's actions towards Åland, the complainant invited the Commission to send a reasoned opinion to that effect in due time. Finally, the complainant called upon the Ombudsman to ensure that the Commission act in accordance with principles of good administration and at least reply to the complaint's letter in due time.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman therefore asked the Commission to specify in more detail why it did not consider it necessary to register the complainant's letter as a complaint and to deal with it in accordance with the principles set out in the Ombudsman's own initiative inquiry 303/97/PD concerning the Commission's administrative procedures for dealing with complaints concerning Member States' infringement of Community law.

The Commission's further opinion

In its further opinion, the Commission confirmed that in its comments to the own-initiative inquiry 303/97/PD, it stated that all complaints received by the Commission were registered, without exceptions. This did however not mean that all letters were registered as complaints but rather that the Commission, in accordance with its internal procedures, only registered those letters as complaints that are likely to be investigated as such. A thorough examination of the complainant's letter took place. However, no new circumstances were revealed compared to the investigation recently closed by the Commission in this matter (IN/P/95/4812). The criticism contained in the letter was therefore seen as manifestly unfounded and the Commission had therefore no intention to register the letter or to deal with it as a complaint. The Commission regretted the misunderstanding that had occurred in this case but concluded that it considered itself to have acted in accordance with principles of good administration.

The complainant's further observations

In its further observations, the complainant put forward that it found the Commission's statement that its criticism was manifestly unfounded to be negligent and underlined that the Commission had also avoided to state the reasons for its conclusion. As regards the substance of the letter, the complainant was surprised that the Commission raised no objections against the behaviour of the Finnish authorities in relation to tax border issues on Åland.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinions and observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's claim.

The Ombudsman therefore made the following proposal for a friendly solution to the Commission:

The Commission should register the complainant's letter of 6 March 1998 as a complaint and deal with it in accordance with the safeguards set out in the Ombudsman's own-initiative inquiry 303/97/PD. If the Commission has a justified explanation for not registering the letter as a complaint, it should reply to the letter as normal correspondence, thereby stating the reasons for its decision.

The Commission's reply

In its reply, the Commission underlined that it considered that it had acted in accordance with principles of good administration. Nevertheless, it was prepared to arrive at a friendly solution with the complainant. The Commission had therefore, on 28 March 2001, sent a letter to the complainant in which it explained its position.

The letter to the complainant identified the four main reasons which had led the Commission not to proceed formally with the complainant's letter of 6 March 1998. These related to the fact that (i) Åland, with respect to taxes, is situated outside the Community territory, (ii) it could not be concluded that trade between Åland and Finland was favoured compared to trade between Åland and other Member States, (iii) it could not be concluded that goods from other Member States were subject to higher taxation compared to goods from Finland, and (iv) Article 3 of Protocol No 2 to the Act of accession of Finland relates to physical and juridical persons but not to goods. The Commission added that, it had since received a similar complaint which was being examined. The Commission undertook to inform the complainant if the examination would lead to a change of its position.

The complainant's observations on the Commission's reply

The complainant stated that it understood the Commission's reply to mean that it would not act upon its letter of 6 March 1998 for the reasons indicated. On the substance, the complainant put forward that it had provided information to the effect that trade between Åland and Finland was favoured compared to trade between Åland and other Member States, that goods from Åland were subject to lower taxation than goods from outside, and that the physical and juridical persons buying the goods were affected by the taxation. The complainant concluded that it was not satisfied with the Commission's reply and claimed that the Commission should act upon its complaint.

It therefore appeared that a friendly solution to the complaint could not be achieved.

THE DECISION

1 Undue delay and failure to register the complainant's letter

1.1 The complainant alleged undue delay on behalf of the Commission in its handling of the complaint it had submitted on 6 March 1998. When the complainant found out that the letter had not been registered as a complaint, it expressed the view that the Commission should register the letter as a complaint and at least reply to the letter in due time. The complainant also pointed out that the Commission had not given any reasons for its conclusion.

1.2 The Commission stated that the letter of 6 March 1998 had not been registered as a complaint but was joined to the closed complaint file IN/P/95/4812. The Commission had informed the complainant in a phone call of the general legal framework of infringement procedures. The letter had not been registered as a separate complaint as the examination of the letter revealed no new circumstances compared to the investigation recently closed by the Commission in this matter. The Commission also stated that in accordance with its internal procedures, it only registers those letters as complaints that are likely to be investigated as complaints. In reply to the Ombudsman's proposal for a friendly solution, the Commission provided the four main reasons why it had not proceeded formally with the complainant's letter of 6 March 1998.

1.3 In his proposal for a friendly solution, the Ombudsman stated that it is good administrative behaviour to reply to citizens' letters within due time and to state the reasons for a decision. The Ombudsman acknowledges that the Commission has now responded to the complainant's letter indicating the four main reasons which had led it not to proceed formally with the complainant's letter of 6 March 1998. The Ombudsman considers these reasons to relate to the substance of the complaint. Even if the reply was delayed, the Ombudsman recognises the good intention of the Commission to provide the complainant with a reply. The Ombudsman therefore finds that there is no maladministration as regards this part of the complaint.

1.4 As regards the fact that the Commission did not formally register the complainant's letter of 6 March 1998 as a complaint, the Ombudsman notes the following.

1.5 In his own-initiative inquiry into the Commission's administrative procedures for dealing with complaints concerning Member States' infringement of Community law (303/97/PD) which was closed on 13 October 1997, the Commission acknowledged that complainants have a place in infringement proceedings as complaints from individuals remain the most important source on which the Commission bases its task of monitoring the application of Community law. In the period before the judicial proceedings may begin, the complainants enjoy procedural safeguards which the Commission had constantly developed and improved. The Commission declared itself ready to continue along those lines. Furthermore, the Commission stated that all complaints which reach the Commission are registered and that no exceptions are made to this rule. Once the Commission receives a complaint, it acknowledges receipt by letter and once it has been registered, the complainant is informed of the action taken.

1.6 The Commission took the view that the complainant's letter was not a complaint. The Ombudsman agrees that the Commission enjoys some discretion in deciding what letters should be registered as complaints. However, the Ombudsman is not convinced that the Commission has explained why the letter was not registered either as a new complaint or under the present complaint file and further dealt with in accordance with the safeguards set out in the own-initiative inquiry 303/97/PD. In reply to the Ombudsman's proposal for a friendly solution, the Commission further failed to explain why it had not registered the letter as a complaint.

1.7 The complainant's letter of 6 March 1998 stated that it concerned breach of the EC-Treaty and Protocol No 2 to the Act of accession of Finland and it requested the Commission to act against Finland. It must therefore have been clear to the Commission that the complainant's intention was to lodge a formal complaint under Article 226 of the EC-Treaty. In this respect, it should be pointed out that a formal registration of the letter would not have prevented the Commission from drawing the conclusion that it would not investigate the matter further for the reasons mentioned in its letter of 28 March 2001 to the complainant.

1.8 The Commission shall act in accordance with its undertakings in the own-initiative inquiry 303/97/PD(1). A failure to respect those safeguards constitutes an instance of maladministration. In the present complaint, the Commission failed to register the complainant's letter as a complaint, and thus failed to act in accordance with good administration. The Ombudsman will therefore address a critical remark to the Commission.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The Commission shall act in accordance with its undertakings in the own-initiative inquiry 303/97/PD(2). A failure to respect those safeguards constitutes an instance of maladministration. In the present complaint, the Commission failed to register the complainant's letter as a complaint, and thus failed to act in accordance with good administration.

As regards this aspect of the case, the Ombudsman tried to pursue a friendly settlement of the matter. However, a friendly solution to the complaint could not be achieved. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN


(1) See also the European Ombudsman's Decision of 7 June 2001 on complaint 1194/2000/JMA against the European Commission. Available on the Ombudsman's Website: http://www.ombudsman.europa.eu

(2) See also the European Ombudsman's Decision of 7 June 2001 on complaint 1194/2000/JMA against the European Commission. Available on the Ombudsman's Website: http://www.ombudsman.europa.eu