Decision of the European Ombudsman on complaint 1096/2004/(AJ)TN against the European Commission

Strasbourg, 23 March 2005

Dear Mr P.,

On 7 April 2004, you made a complaint to the European Ombudsman on behalf of the European Emergency Number Association (EENA). Your complaint was against the European Commission and concerned the implementation of the European emergency call number 112.

On 15 June 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 17 September 2004. I forwarded it to you with an invitation to make observations, which you sent on 8 November 2004.

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

THE COMPLAINT

In April 2004, a complaint was made to the Ombudsman on behalf of the European Emergency Number Association (hereafter "EENA"). The complaint was against the European Commission and concerned the implementation of the European emergency call number 112 (hereafter "112").

According to the complainant, the relevant facts are, in summary, the following:

Background

EENA is a non-profit association established in Belgium, working to promote knowledge and efficient use of the single European emergency number 112, which was established in 1991 by a Council Decision. Over the years, the Commission has conducted two surveys about the implementation of 112 in the Member States. The last survey is from October 2001. The Commission has also conducted a Eurobarometer survey of knowledge about 112 among European citizens and it has financed several workshops and published a call for proposals for actions concerning information to the public, including information about 112. In December 2003, the Commission announced, in the framework of the "Article 226 procedure(1)" that reasoned opinions had been sent to seven Member States, which have still not implemented the relevant regulatory framework regarding 112.

Lack of implementation of legislation in force

According to the complainant, the implementation of the legislation in force concerning 112 should have two components, namely (i) the telecommunications component, which depends on providers of telecommunications services and (ii) the civil protection component, which concerns the activities of the emergency services (ambulances, fire brigades and police). Although the Commission is quite pro-active as regards the first component, very few, if any, actions are undertaken concerning the second and the legislation in force is therefore not yet effectively implemented. In addition, several initiatives and measures in the field of safety and security of citizens cannot be fully developed because of the poor implementation of the civil protection component of 112.

Lack of further action

The Commission announced in its work-programme for 2002(2) that it would implement the Communication on civil protection and bio-terrorism, which it adopted in November 2001, and that it would recommend an integrated EU strategy on prevention, preparedness and response to natural, man-made and other risks. However, no recommendation or other document was adopted on these issues in 2002 and the Commission repeated its announcement in its work-programme for 2003(3). Up to the date of the complaint, no documents have been issued regarding the matter, but the Commission mentions in its work-programme for 2004(4) that the enlargement will require greater effort and better co-ordination to ensure the security of individuals when moving within the European Union. The Commission further mentions that, for 2005, there is a need to focus on consolidating the right of everyone to protection through the enhancement and extension of the civil protection response capacity in the enlarged Union. However, a Communication issued by the Commission in March 2004 concerning the Civil Protection Capacity of the European Union(5) covers in a very incomplete way, if at all, the needs of the citizens in this respect, and it does not mention 112 at all. The complainant argues that the Commission, through its unfulfilled promises of an integrated EU strategy on prevention, preparedness and response to natural, man-made and other risks, has created false expectations among citizens. The complainant further argues that the Commission gives the impression that the civil protection component of 112 is non-existent. Commissioner Wallström(6) has implied that the responsibility for 112 lies with Commissioner Liikanen(7), but the complainant argues that matters concerning the civil protection component clearly lie within the responsibility of DG Environment.

Failure to maintain website

The complainant further argues that the Commission's DG Environment does not keep its 112 website properly updated. Although the 112 website mentions 8 October 2003 as the latest update, it seems as if the last substantive update was the inclusion of the conclusions of the workshop on the implementation of 112, held in Sweden in March 2002. Furthermore, the site still mentions and contains links to obsolete legislation and it does not contain any information about the projects "Analysis of the 112 Service in Portugal" or "SOS-112" mentioned in the mid-term evaluation report of the Community Action Programme in the field of Civil Protection (2000-2004). In fact, the Commission's Civil Protection website does not contain information about projects financed after 31 December 2001, which is in direct violation of Article 169 of Commission Regulation 2342/2002(8) and Article 12 of Regulation 1049/2001(9).

Allegations and claims

The complainant alleges, in substance, that the Commission has failed to:

1. Ensure the correct application by the Member States of Community law relating to the European emergency call number 112;

2. Take further action regarding the civil protection component of 112, as consistently promised in its work-programmes; and

3. Supply updated and relevant information concerning 112 on its website.

The complainant claims, in substance, that the Commission should:

1. Ensure better information to the citizens by correcting and updating its website;

2. Launch the relevant supportive actions in the 112 field, as promised in its different declarations; and

3. Provide reasons why relevant 112 projects, although requested through calls for proposals, were rejected or were launched but not completed, and why their progress was never made known to the public.

The Ombudsman's analysis of the admissibility of the complaint

The Treaty establishing the European Community and the Statute of the European Ombudsman set precise conditions as to the admissibility of a complaint. The Ombudsman can only start an inquiry if these conditions are met. One of these conditions is:

Article 195 of the Treaty establishing the European Community:

"In accordance with his duties, the European Ombudsman shall conduct inquiries for which he finds grounds (...)"

As regards the first allegation, that the Commission has failed to ensure the correct application by the Member States of Community law relating to the European emergency call number 112, the complainant appeared to have complained to the Commission(10) regarding the Member States' allegedly inadequate application of Community law on 12 January 2004. By letter of 30 January 2004, the Commission appeared to have informed the complainant that his complaint had been registered. The Commission therefore had until the beginning of 2005 (one year from the date of registration of the complaint) to take action or to inform the complainant of its intention to close the case(11). In view of the above, the Ombudsman concluded that there were not sufficient grounds for opening an inquiry on this allegation, since the complainant had provided no evidence of maladministration by the Commission regarding the matter.

Another condition as to the admissibility of a complaint is:

Article 2.4 Statute of the European Ombudsman:

“The complaint (...) must be preceded by the appropriate administrative approaches to the institutions and bodies concerned.”

The above condition did not seem to be met as regards the complainant's third claim (that the Commission should provide reasons why relevant 112 projects, although requested through calls for proposals, were rejected or were launched but not completed, and why their progress was never made known to the public). The reason was that the complainant did not appear to have made any administrative approaches to the Commission in relation to this claim. The Ombudsman therefore informed the complainant that this claim was not admissible and suggested that he could address the Commission directly regarding the matter.

However, the Ombudsman opened an inquiry into the second and third allegation and into the first and second claims.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission makes, in summary, the following comments:

The obligation on the Member States as regards the 112 number is now incorporated in Article 26 of the Universal Service Directive(12).

The alleged failure to take action regarding 112 and the claim that supportive actions should be launched

The latest Community Action Programme in the field of civil protection covers the period 2002-2004. It aims at supporting and supplementing the Member States' efforts at national, regional and local levels for the protection of persons, property and the environment in the event of natural or technological disasters. It is also intended to facilitate co-operation, exchange of experience and mutual assistance between Member States in this field.

Project management and funding through projects is one of the methods used to promote actions at national and regional level with an added value at the European level. During the period 2001-2003, the Commission's Civil Protection Unit within DG Enlargement co-financed a number of projects relevant to the European emergency call number 112 following calls for proposals. These projects can be summarised as follows:

• The final report of the project "Awareness campaign for the utilisation of the single European call number 112" (call for proposals 2001) was submitted to the Commission in May 2004 and was published on the website after its evaluation;

• The project "Effective handling of emergency calls" (call for proposals 2001) carried out by the Swedish Rescue Service was finalised at the beginning of 2002 and the report has been published on the website;

• The project "SOS 112" (call for proposals 2002) was cancelled by the contractor;

• The project "Analysis of the 112 Services in Portugal" (call for proposals 2002) has been finalised and published on the website (see further below);

• The project "Civil protection information for Europeans on holiday" (call for proposals 2002) by the Chamber Group for the development of Greek Isles has been finalised and the final report is published on the website. In relation to this project, the complainant was invited to the workshop held on 31 October - 2 November 2003 on Chios Island, Greece;

• The "Best practices and life support kits for self protection of EU citizens in households, in the case of a daily or disastrous emergency" (call for proposals 2003) is a project run by the French Red Cross. The project, which is ongoing, foresees the dissemination of 112.

Besides project management, the Civil Protection Unit also prioritises co-ordination and co-operation with other Commission services. In the field of 112, there is close co-operation with DG Information Society. The Civil Protection Unit participates and promotes participation in the "European forum for officials in the field of public safety and emergency communications and information systems" set up by DG Information Society. The members of the Civil Protection Management Committee are regularly informed about the activities of this forum, as well as of other actions carried out by the Commission services.

As regards the claim that supportive actions should be launched, the Commission argues that it seeks every possibility to foster the awareness of civil protection and of 112 among national authorities, as they are best placed to promote 112 at a national level. The Commission's Civil Protection Unit therefore regularly informs the Management Committee about on-going projects and actions and about actions carried out by other relevant Commission services, such as DG Information Society and the Joint Research Centre, in order to improve information flow to Member State level.

The alleged failure and claim relating to the website

The Civil Protection Unit seeks to update the website regularly(13). While there may have been some delays in this respect in the past few years, the website is now up-to-date. The website contains links to other Commission services dealing with 112, such as DG Information Society. It also contains links to relevant projects, legislation and organisations, including a link to EENA.

The project "Analysis of the 112 services in Portugal" was published on the website after the Commission had evaluated the final report. The need for financial clarifications somewhat delayed the process. By letter of 5 February 2004, the Commission informed the complainant directly that the project "SOS 112" had been cancelled by the contractor. That letter also informed him of the status of the Portuguese project.

In view of the above, the Commission considers the complainant's allegations and claims to be unfounded.

The complainant's observations

In his observations, the complainant makes, in summary, the following remarks:

The alleged failure to take action regarding 112 and the claim that supportive actions should be launched

The Commission bases its reply to this allegation on the work achieved in the framework of the Community Action Programme in the field of Civil Protection. Article 3 of the Council Decision(14) establishing this programme mentions the criteria on the basis of which individual actions shall primarily be selected. One of these criteria is the action's "contribution to public information, education and awareness, so as to help citizens to protect themselves more effectively(15)". The complainant argues that only one of the projects listed by the Commission as relevant to 112 satisfies this criterion. The rest of the actions listed have merely ensured that one or two officials from each Member State (most of them members of the Management Committee, which authorised the projects in the first place) got the opportunity to travel and participate in workshops organised by national civil protection authorities. According to the complainant, only the Belgian project "Awareness campaign for the utilisation of the 112" seems to satisfy the above criterion, but that campaign was so limited that the general public in Belgium still remains uninformed about the existence and use of 112.

The Commission's opinion mentions nothing about actions organised on the basis of the Commission's announcement in its work-programme for 2002, recommending an integrated EU strategy on prevention, preparedness and response to natural, man-made and other risks. To the complainant's knowledge, and despite the Commission's promise in this regard, no such actions have been organised. Nor does the Commission mention anything about actions to reinforce 112 in view of the full development of initiatives in the context of Community activities in the field of safety and security of citizens (road safety, occupational safety, health insurance card, information society standards by emergency services). The only action the Commission mentions in this regard is its active participation and promotion of the European forum of officials in the field of public safety and emergency communications. However, to the complainant's knowledge, this forum is not yet operational, as acknowledged by the Commission in its Communication on Prevention, preparedness and response to terrorist attacks(16), where it states that it is working to set up such a forum.

The complainant accepts the fact that the Commission has launched actions and been conducting activities in the civil protection field. However, given the rather poor result of the Commission's actions for more than a decade, the complainant questions the effectiveness and efficiency of these actions. The complainant notes, for instance, that after 13 years, 112 is still unknown to four out of five Europeans, and the right of everyone to protection, laid down in the Commission's work-programme for 2004(17), is greatly hampered by the lack of a high performance 112 throughout the EU.

The alleged failure and claim relating to the website

Despite the website having been updated after the Ombudsman opened his inquiry, it still contains several flaws. The website does not mention in a clear and user-friendly way the legislation in force in the field of 112 and it is still available only in English, while the Europa portal, and especially the parts that directly concern European citizens, is available in all official languages. The 112 website is furthermore hidden amongst thousands of other sites on the Europa server, with no links from other relevant EU policies in the field of safety and security of citizens. It cannot, therefore, be seen to ensure proper information to citizens. The part of the site relating to the "State of implementation of the 112" has not been updated since 2001 and information about the 15 Member States before enlargement is out of date while there is still no information about the 10 new Member States. Furthermore, despite having been published on the website, the project "Analysis of the 112 services in Portugal" has not been promoted correctly and no follow-up activities have been reported on the website.

THE DECISION

1 Introductory remark about the complainant's Article 226 complaint

1.1 The complaint concerns alleged failures by the European Commission in relation to the implementation of the European emergency call number 112. In his complaint to the Ombudsman, the complainant alleged, inter alia, that the Commission had failed to ensure the correct application by the Member States of Community law relating to the European emergency call number 112. As regards this allegation, the Ombudsman noted that the complainant appeared to have made an Article 226 complaint to the Commission regarding the Member States' allegedly inadequate application of Community law and that the Commission had informed the complainant, by letter of 30 January 2004, that his complaint had been registered. In view of the fact that the Commission has one year from the date of registration of a complaint to take action or to inform the complainant of its intention to close the case(18), the Ombudsman concluded that, at the time of submitting the complaint to the Ombudsman, there were not sufficient grounds for opening an inquiry on the allegation in question, since the complainant had provided no evidence of maladministration by the Commission regarding the matter.

1.2 The Ombudsman notes that the one-year deadline for the Commission to take action on the complainant's Article 226 complaint or to inform him of its intention to close the case appears to have passed. It should be noted that the complainant has the possibility to make a new complaint to the Ombudsman, if he considers that the Commission has not dealt with his Article 226 complaint in accordance with its communication on the relations with the complainant in respect of infringements of Community law(19).

2 The alleged failure to take action regarding 112 and the claim that supportive actions should be launched

2.1 The complainant argues that the Commission has promised, in different ways and in all its work-programmes for the years 2002-2004, to take further action regarding the civil protection component of 112. However, until today, no further actions relating to 112 have been taken and the complainant argues that the Commission's unfulfilled promises have created false expectations among citizens. The complainant also argues that the Commission gives the impression that the civil protection component of 112 is non-existent. In essence, the complainant alleges that the Commission has failed to take further action regarding the civil protection component of 112, as consistently promised in its work-programmes. The complainant claims that the Commission should launch the relevant supportive actions in the 112 field, as promised in its different declarations.

2.2 The Commission argues that, within the framework of the Community Action Programme in the field of civil protection, it has co-financed a number of projects relevant to 112. Besides project management, the Commission's Civil Protection Unit also prioritises co-ordination and co-operation with other Commission services. The Civil Protection Unit participates and promotes participation in the "European forum for officials in the field of public safety and emergency communications and information systems" set up by DG Information Society and the Commission seeks every possibility to foster the awareness of civil protection and 112 to national authorities, as they are best placed to promote 112 at national level. The Civil Protection Unit provides regular information about on-going projects and actions at Member State level.

2.3 In reply to the Commission's opinion, the complainant argues that only one of the projects listed by the Commission satisfies the condition that the action should contribute to public information, education and awareness, as required by Article 3 of the Council Decision establishing the Community Action Programme in the field of Civil Protection. The complainant further argues that the only further action that the Commission refers to is the European forum for officials, which, to the complainant's knowledge, is not yet operational.

2.4 The Ombudsman has consistently emphasised the importance of empowering the citizens of the European Union and informing them of their rights. Accordingly, the Ombudsman understands the complainant's aspirations in this regard. However, as regards the context of the present complaint, the Ombudsman points out that, in implementing its work programmes, the Commission necessarily enjoys a degree of discretion, for the exercise of which it is accountable to the European Parliament through the budgetary procedure. Furthermore, the Ombudsman's role in dealing with allegations of maladministration is to act as a guardian of the rule of law, of good administration and of fundamental and human rights. In the present case, the relevant question for the Ombudsman is whether the Commission has acted in accordance with the rules and principles that are binding on it, including the principles of good administration set out in the European Code of Good Administrative Behaviour(20). The Ombudsman takes into account in this context that the twelfth recital of the Universal Service Directive recognises that an important interest of citizens is involved by stating that "[i]nsufficient information about the existence of '112' deprives citizens of the additional safety ensured by the existence of this number at European level especially during their travel in other Member States". The Ombudsman also notes, however, that Article 26 (4) of the Directive makes Member States responsible for provision of adequate information about 112. Against this background and after careful examination of the arguments put forward by the complainant and the Commission and of the documents referred to during the course of the inquiry, the Ombudsman does not find any evidence that, in implementing the work programmes concerned (including the European forum for officials, mentioned in the complainant's observations), the Commission has acted outside the scope of its discretionary powers or breached any rule or principle that is binding upon it.

2.5 The Ombudsman notes, however, that in his observations, the complainant argues that the Commission failed to choose projects in the 112 field in accordance with Article 3 of the Council Decision establishing the Community Action Programme in the field of Civil Protection. The complainant argues that only one of the projects referred to by the Commission in its opinion satisfies the criterion that actions shall be selected primarily on the basis of their contribution to public information, education and awareness, so as to help citizens to protect themselves more effectively. The Ombudsman considers this argument to constitute a new allegation, which the complainant does not appear to have previously brought to the Commission's attention(21). The Ombudsman therefore finds no ground to pursue the matter within the context of the present inquiry. If the complainant wishes to pursue the allegation further, he should approach the Commission directly with his arguments. If he does not receive a satisfactory reply within a reasonable time, he could consider making a new complaint to the Ombudsman.

2.6 On the basis of the above, the Ombudsman finds no maladministration by the Commission as regards this part of the complaint. However, the Ombudsman points out that the complainant could consider submitting a petition to the European Parliament regarding the relevant work programmes of the Commission and their implementation.

3 The alleged failure relating to the website and related claim

3.1 The complainant argues that the Commission does not properly update its 112 website. The last substantive update appears to be the inclusion of the conclusions of the workshop on the implementation of 112, held in Sweden in March 2002. According to the complainant, the site still contains links to obsolete legislation and it does not contain any information about the projects "Analysis of the 112 Service in Portugal" or "SOS-112". The complainant also argues that the Commission's Civil Protection website does not contain information about projects financed after 31 December 2001, which is direct violation of Article 169 of Commission Regulation 2342/2002 and Article 12 of Regulation 1049/2001. The complainant alleges that the Commission has failed to supply updated and relevant information concerning 112 on its website. The complainant claims that the Commission should ensure better information to the citizens by correcting and updating its website.

3.2 The Commission argues that it seeks to regularly update the website which, despite certain delays in the past, now is up to date. The website contains links to other Commission services dealing with 112. It also contains links to projects - such as the project "Analysis of the 112 services in Portugal" - legislation and organisations.

3.3 In reaction to the Commission's opinion, the complainant provides further arguments to support his allegation and claim regarding the website. He argues, essentially, that the website lacks user-friendliness. According to the complainant, the website is still only available in English and that it is hidden amongst thousands of sites on the Europa server, with no links from other relevant EU policies. He also argues that the part of the site relating to the "State of implementation of the 112" has not been updated since 2001 and information about the 15 Member States before enlargement is out of date while there is still no information about the 10 new Member States. The complainant acknowledges that the project "Analysis of the 112 services in Portugal" has been published on the website, but argues that it has not been promoted correctly and no follow-up activities have been reported on the website.

3.4 The Ombudsman's services have accessed the 112 website during the course of the present inquiry and note that it states that it was last updated on 21 September 2004. This appears substantially correct, given that the website contains links to, inter alia, a survey from the summer of 2004 concerning the implementation of 112 in the Member States. The Ombudsman further notes that the complainant is correct in stating that the website contains links to obsolete legislation. However, these links clearly refer to how 112 was established and there is also a link to the Universal Service Directive, stating that the relevant legal provisions are now incorporated in its Article 26. The Ombudsman therefore considers that citizens accessing the website are made aware that the links in question contain historical information. As regards projects financed after 31 December 2001, the Ombudsman recalls that Article 169 of Regulation 2342/2002 stipulates that "[a]ll grants awarded in the course of a financial year /.../ shall be published on the Internet site of the Community institutions during the first half of the year following the closure of the budget year in respect of which they were awarded". The Ombudsman notes that the Commission's DG Environment has published lists of grants awarded in 2003 on its website(22) and that the deadline for publishing such lists for 2004 has not yet expired. As regards the question of direct accessibility to documents, as governed by Article 12 of Regulation 1049/2001, the Ombudsman considers that the complainant has not specified which the documents concerned are.

3.5 The Ombudsman also notes that the complainant, in his observations on the Commission's opinion, puts forward further arguments in support of his allegation that the Commission has failed to supply updated and relevant information on the 112 website. These arguments relate to language, links from other policies, the state of implementation of 112 and promotion and follow-up activities regarding the project "Analysis of the 112 Service in Portugal". The Ombudsman considers these arguments constitute new allegations which the complainant does not appear to have previously brought to the Commission's attention(23). The Ombudsman therefore finds no ground to pursue these arguments in the context of the present inquiry. If the complainant wishes to pursue these issues further, he should approach the Commission directly with his concerns. If he does not receive a satisfactory reply within a reasonable time, he could consider making a new complaint to the Ombudsman.

3.6 On the basis of the above, the Ombudsman finds no maladministration by the Commission as regards this part of the complaint.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Article 226 of the EC Treaty empowers the Commission to bring proceedings against a Member State in respect of infringements of Community law.

(2) See COM(2001)620 final, p. 10, third key action.

(3) See COM(2002)590 final, Annex 2: list of legislative proposals and non-legislative acts (2003/ENV/77) corresponding to the political priorities stated on p. 6.

(4) See COM(2004)133 final, p. 8, point 3.2.

(5) See COM(2004)200 final.

(6) Commissioner for Environment, 1999-2004.

(7) Commissioner for Enterprise Policy and the Information Society, 1999-2004.

(8) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities.

(9) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

(10) Article 226 of the EC Treaty empowers the Commission to bring proceedings against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law.

(11) Point 8 of the Annex to the Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (COM(2002)141 final), published in Official Journal 2002 C 244/2.

(12) Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive).

(13) http://ec.europa.eu/environment/civil/prote/112/112_en.htm.

(14) 999/847/EC: Council Decision of 9 December 1999 establishing a Community action programme in the field of civil protection.

(15) Article 3.2.e.

(16) See COM(2004)698 final, point 3.4.

(17) See COM(2004)133 final.

(18) Point 8 of the Annex to the Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (COM(2002)141 final), published in Official Journal 2002 C 244/2.

(19) Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (COM(2002)141 final), published in Official Journal 2002 C 244/2.

(20) The European Code of Good Administrative Behaviour is available at the Ombudsman's website: http://www.ombudsman.europa.eu/code/pdf/en/code_en.pdf.

(21) Article 2.4 of the Statute of the European Ombudsman stipulates that a complaint to the Ombudsman must be preceded by the appropriate administrative approaches to the institutions and bodies concerned. The Statute of the European Ombudsman is available at the following website: http://www.ombudsman.europa.eu/lbasis/en/statute.htm.

(22) http://www.europa.eu/comm/environment/funding/2003_grants.htm.

(23) Article 2.4 of the Statute of the European Ombudsman stipulates that a complaint to the Ombudsman must be preceded by the appropriate administrative approaches to the institutions and bodies concerned. The Statute of the European Ombudsman is available at the following website: http://www.ombudsman.europa.eu/lbasis/en/statute.htm.