Strasbourg, 12 December 2005

Dear Mr X.,

On 2 November 2004, you sent me a letter in which you informed me that you wished to renew a previous complaint against the European Commission (complaint 2847/2004/AS) that had been rejected by me in October 2004. You alleged in substance that the Commission had failed properly to handle your complaint against Germany for infringement of your right of free movement. Your letter of 2 November 2004 was registered as a new complaint (complaint 3317/2004/GG).

On 16 November 2004, I forwarded the complaint to the President of the European Commission.

By fax sent on 19 November 2004, you informed me that you wished your complaint to be treated confidentially. On 24 November 2004, I informed the Commission accordingly. A copy of your fax of 19 November 2004 was forwarded to the Commission on 13 December 2004.

The Commission sent me the French version of its opinion on 16 February 2005. The translation into German was forwarded to me on 2 March 2005.

On 28 February 2005, I asked the Commission to provide me with further information in relation to this case. You were informed accordingly by a letter sent on 2 March 2005. Together with this letter, I forwarded a copy of the Commission's opinion to you.

On 9 April 2005, you submitted observations to me.

On 1 June 2005, the Commission replied to my request for further information. I forwarded this reply to you on 3 June 2005 with an invitation to make observations, both on this reply and on the Commission's opinion. You sent observations on 7 June 2005.

On 29 June 2005, I addressed a draft recommendation to the Commission.

On 10 November 2005, the Commission sent its detailed opinion on this draft recommendation. I forwarded it to you on 11 November 2005 with an invitation to make observations, which you sent on 22 November 2005.

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 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 Commission.

THE COMPLAINT

Facts

The complainant is a German citizen. The German tax authorities consider that the complainant owes them EUR 358 000. This claim, which is disputed by the complainant, seems to be based on the view of the German tax authorities that certain assets that belong to the complainant but that are based abroad should be subject to German taxation.

In November 2003, the city where the complainant lives ordered him to surrender his passport on the grounds that he was likely to go abroad in order to avoid having to pay the above-mentioned debt. The city also decided that the validity of the complainant's personal identity card ("Personalausweis") was to be limited to Germany. As a result, the complainant was unable lawfully to leave the territory of the Federal Republic of Germany.

The complainant lodged an administrative appeal against this decision.

On 30 March 2004, the complainant turned to the European Commission in order to complain about an infringement of his right to free movement under Article 18 of the EC Treaty. The complainant submitted that it followed from the case-law of the Court of Justice that any national rules that limited cross-border circulation were prohibited. In this context, the complainant referred to the judgment of the Court of Justice in Case C-415/93 Bosman(1). He further submitted that the conditions for any limitations on grounds of public policy, public security or public health were not fulfilled in his case.

On 6 May 2004, the Commission acknowledged receipt of this letter and asked the complainant to submit further information. In response to a further letter addressed to it by the complainant on 18 May 2004, the Commission asked the complainant, by letter of 3 June 2004, to submit a copy of his administrative appeal. The complainant provided this information.

On 16 June 2004, the Commission pointed out that it understood that the complainant had been found guilty of tax offences by a German court. The Commission informed the complainant that his case did not fall within the scope of application of Community law, given that there was no cross-border element involved. In this context, the Commission referred to Joined Cases C-64/96 and C-65/96 Uecker and Jacquet(2). The Commission also pointed out, referring to Case 180/83 Moser(3), that a purely hypothetical prospect of working in another Member State did not establish a link that would be sufficiently close to justify the application of the rules on free movement.

In his reply of 23 June 2004, the complainant clarified that he had not been found guilty of tax offences by a German court, but that his right to move had been limited by a decision of an administrative authority. The complainant submitted that this decision had been based on the fact that he owned assets abroad. In the complainant's view, owning a securities deposit account abroad was protected by the EC Treaty's rules on the free movement of capital. The complainant also stressed that the infringement of his right to free movement was real, given that he wished to take over from his employer the task of looking after customers living abroad and that he had booked a holiday trip to another country which he had had to cancel due to the decision taken by the city where he lived. He further submitted that this decision constituted a disproportionate measure. In his letter, the complainant referred to the judgments of the Court of Justice in Case C-18/95 Terhoeve(4) and in Case C-357/98 Yiadom(5).

In its reply of 20 July 2004, the Commission pointed out that the complainant appeared to rely primarily on the European Convention on Human Rights and on Community law. The Commission further submitted that the complainant's case had reached an advanced stage before the German courts. In the Commission's view, however, it was not clear whether having recourse to national courts had a suspensive effect. The Commission further submitted that the complainant could turn to the European Court of Human Rights as regards the European Convention on Human Rights and that only the European Court of Justice could clarify the interpretation of Community law in response to a request for a preliminary ruling pursuant to Article 234 of the EC Treaty. In the Commission's view, it was therefore not possible to come to a final conclusion regarding the case on the basis of the information available so far.

In his reply of 1 August 2004, the complainant reiterated his view. He also stressed that there was only a decision by an administrative authority so far, that the matter had not yet been submitted to a court and that his administrative appeal had had no suspensive effect. The complainant therefore requested the Commission to open infringement proceedings against Germany.

On 18 September 2004, the Commission replied to this letter. The Commission confirmed its view that Article 18 of the EC Treaty was not applicable in the present circumstances. According to the Commission, the fact that the complainant was a 'potential' recipient of services to be provided in other Member States did not affect this conclusion. The Commission stressed that only one Advocate-General had so far referred to 'potential Community tourists' but that the Court of Justice had not followed this opinion. It further pointed out that the European Court of Human Rights had decided on two similar cases in 2003 and suggested that the complainant could address himself to this court. The Commission also suggested that the complainant could write to the UN Centre for Human Rights in Geneva.

Complaint 2847/2004/AS

On 4 October 2004, the complainant turned to the Ombudsman (complaint 2847/2004/AS), alleging an infringement of his right to free movement by the Commission. The complainant submitted that he had booked two trips to European countries which he had been unable to carry out due to the decision of the city where he lived. In his letter, the complainant referred, inter alia, to Case C-107/90 Masgio(6). Given that the complainant had not submitted any supporting documents (and that he had not indicated a telephone number that would have allowed the Ombudsman's office to contact him), this complaint was rejected on 27 October 2004 on the basis of Article 195 of the EC Treaty, since there appeared to be insufficient grounds for an inquiry.

The present complaint

By letter dated 1 November 2004, which was sent by fax on 2 November 2004, the complainant forwarded copies of his correspondence with the Commission to the Ombudsman. This letter was registered as a new complaint by the Ombudsman (complaint 3317/2004/GG - confidential). In this complaint, the complainant essentially alleged that the Commission had failed properly to handle his infringement complaint against Germany.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments.

On 30 March 2004, the complainant had asked the Commission to start infringement proceedings against Germany. In accordance 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(7) ("the Communication"), this letter had been registered as a complaint (reference 2004/4462). The complainant had been informed accordingly on 27 May 2004.

On 16 June and 18 September 2004, the Commission had informed the complainant of its view that his situation was purely internal and that Article 18 of the EC Treaty was therefore not applicable. The Commission had also informed the complainant about the possibility to turn to the European Court of Human Rights or the UN Centre for Human Rights in Geneva.

By letter of 27 September 2004, the complainant had complained about the position taken by the Commission's services. The Commission had not replied to this letter on the grounds that it contained no new element compared to the complainant's previous letters and that it could therefore be considered to be repetitive (see the section "Dealing with enquiries" of the Commission's Code of good administrative behaviour).

On 9 December 2004, the Commission service in charge of the matter had asked the Commission's Secretariat-General to close the file.

The German authorities had informed the Commission in the meantime that the restrictions imposed on the complainant were still applicable and that the matter was, as of 17 December 2004, pending before the Regierungspräsidium of Baden-Württemberg, the authority competent to deal with the complainant's administrative appeal. The latter had furthermore informed the Commission that the complainant had not asked the competent administrative court for interim relief as he could have done.

The Commission's services had done all they could in order to respond to the complainant's questions and to help him find remedies outside Community law. They had however explained to the complainant that his situation was not covered by Community law. As regards the complainant's infringement complaint, the procedural requirements concerning relations with complainants had been respected.

Further inquiries

After careful consideration of the Commission's opinion, it appeared that further inquiries were necessary.

The request for further information

On 28 February 2005, the Ombudsman therefore asked the Commission to comment on how it had complied, in the present case, with the procedural safeguards laid down in point 10 of its Communication(8). Point 10 of this Communication provides that the Commission (1) gives the complainant prior notice where it wishes to close the case and (2) invites the complainant to submit any comments within a period of four weeks.

The Commission's reply

In its reply to this request for further information, the Commission pointed out that a simplified procedure had been used in the present case in accordance with point 11 of the Communication. The Commission expressed regret at the fact that no formal letter informing the complainant of the Commission's intention to close the file, as foreseen by point 10 of the Communication, had been sent.

The complainant's observations

The complainant provided two sets of observations, the first after having received a copy of the Commission's opinion and the second after having read the Commission's reply to the request for further information. However, the contents of the complainant's second letter are virtually identical to those of the first.

In his observations, the complainant made the following comments:

The administrative appeal, which had been lodged on 4 December 2003, had still not been dealt with. The length of the procedure concerning this administrative appeal also constituted an infringement of the right to free movement.

The decision taken by the city where he lived infringed Articles 18 and 39 of the EC Treaty, given that it prevented him from leaving Germany. This restriction on movement was not justified on grounds of public policy, public security or public health (Article 39 (3) of the EC Treaty). Fiscal reasons could not be invoked to justify limitations of the right to free movement. The decision to confiscate his passport pursued the aim of preventing him from working abroad, given that it was easier to enforce tax claims within the country than in other states. However, these reasons of administrative expediency could not justify a limitation of the right to free movement either.

In this context, the complainant referred to a number of further judgments of the Court of Justice.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 29 June 2005, the Ombudsman addressed, in accordance with Article 3 (6) of the Statute of the European Ombudsman, the following draft recommendation(9) to the Commission:

The Commission should reconsider the infringement complaint submitted to it by the complainant.

This draft recommendation was based on the following considerations:

1 Introductory remark

1.1 The complainant is a German citizen. The German tax authorities consider that the complainant owes them EUR 358 000. In November 2003, the city where the complainant lives ordered the complainant to surrender his passport on the grounds that he was likely to go abroad in order to avoid having to pay the above-mentioned debt. The city also decided that the validity of the complainant's personal identity card ("Personalausweis") was to be limited to Germany. As a result, the complainant was unable lawfully to leave the territory of the Federal Republic of Germany. The complainant lodged an administrative appeal against this decision.

On 30 March 2004, the complainant turned to the European Commission in order to complain about an infringement of his right to free movement under Article 18 of the EC Treaty. The complainant submitted that it followed from the case-law of the Court of Justice that any national rules that imposed limitations on cross-border circulation were prohibited. He further submitted that the conditions for any limitations on grounds of public policy, public security or public health were not fulfilled in his case. In the course of his subsequent correspondence with the Commission, the complainant submitted that he owned assets abroad, that he wished to take over from his employer the task of looking after customers living in other Member States and that he had booked two holiday trips to other Member States, which he had had to cancel due to the decision taken by the city where he lived.

On 27 May 2004, the complainant was informed that his letter had been registered as a complaint (reference 2004/4462).

In two letters dated 16 June and 18 September 2004 respectively, the Commission informed the complainant of its view that his complaint concerned a situation that was purely internal to Germany and that Article 18 of the EC Treaty was therefore not applicable. The Commission further informed the complainant about the possibility to turn to the European Court of Human Rights or the UN Centre for Human Rights in Geneva.

In his complaint to the Ombudsman lodged on 2 November 2004, the complainant alleged that the Commission had failed properly to handle his infringement complaint against Germany.

1.2 In his observations of April 2005 on the Commission's opinion, the complainant pointed out that the administrative appeal, which had been lodged on 4 December 2003, had still not been dealt with. In the complainant's view, the length of the procedure concerning this administrative appeal also constituted an infringement of the right to free movement.

1.3 It should be noted that the present inquiry concerns the issue of whether the Commission properly handled the infringement complaint that the complainant had lodged with it on 30 March 2004. Given that the above-mentioned argument (outlined in point 1.2) does not appear to have been submitted to the Commission within the framework of the infringement complaint, it cannot be considered in the present inquiry.

2 Alleged failure properly to deal with infringement complaint

2.1 The complainant alleged that the Commission had failed properly to handle his infringement complaint against Germany.

2.2 In its opinion, the Commission essentially submitted that it had handled the matter properly. The Commission further took the view that the procedural requirements concerning relations with complainants had been respected. It also noted that on 9 December 2004, the service in charge of the matter at the Commission had asked the Commission's Secretariat-General to close the file.

2.3 As regards procedural aspects, it should first be noted that the Commission's Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(10) ("the Communication") provides for certain procedural safeguards as concerns infringement complaints submitted to the Commission. Point 10 of this Communication provides that the Commission (1) gives the complainant prior notice where it wishes to close the case and (2) invites the complainant to submit any comments within a period of four weeks. In response to a question that the Ombudsman put to it, the Commission admitted that it had not complied with these requirements and expressed regret for this failure. The Commission explained that it had used a simplified procedure in the present case in accordance with point 11 of the Communication. It should be noted, however, that the last paragraph of point 11 provides that when "the Commission intends to use this procedure, it will inform the complainant thereof in accordance with the procedure described in point 10". The Ombudsman concludes, therefore, that the Commission failed to comply with the procedural safeguards set out in point 10 of its own Communication. This constitutes an instance of maladministration.

The Ombudsman notes that the Commission's decision to close its file on the complainant's infringement complaint appears to have been taken after the present complaint had been brought to the Commission's attention by the Ombudsman. The Commission's failure to comply with its own Communication is therefore all the more surprising.

2.4 As regards the substance of the case, the Ombudsman considers that the Commission is correct in pointing out that the EC Treaty's rules on free movement do not apply to purely internal situations not involving any cross-border elements(11). It should however be noted that Article 18 of the EC Treaty provides that every EU citizen "shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect". This right by necessity includes an obligation on Member States to allow their nationals to leave their territory in order to exercise this freedom. The Ombudsman notes, however, that the very purpose of the measures adopted by the relevant German authority was to make it impossible for the complainant to leave Germany. It should further be pointed out that the complainant has explained that he wishes to go to other Member States for professional reasons and for tourist purposes. Given the broad wording of Article 18 of the EC Treaty, the Ombudsman takes the view that this provision also protects the right of EU nationals to go to other Member States with a view to spending a holiday there.

It should further be noted that, in his letter to the Commission of 23 June 2004, the complainant submitted that he had booked a holiday trip that he subsequently had had to cancel due to the measures taken by the German authorities. In his letter to the Commission of 4 October 2004, the complainant referred to two trips that he had had to cancel, one in June 2004 and one in August/September 2004. In a letter addressed to the Ombudsman on 19 November 2004 (which was forwarded to the Commission), the complainant indicated that these trips would have taken him to Hungary and Austria respectively. In the light of these indications, the Ombudsman considers that it is difficult to argue that the complainant's intention to exercise his right of free movement was hypothetical. In any event, it should be noted that it does not emerge from the Commission's letters that the Commission ever considered these submissions.

2.5 In these circumstances, the Ombudsman considers that the Commission failed properly to deal with the complainant's infringement complaint also as regards the substance of this complaint. This constitutes a further instance of maladministration.

2.6 To avoid doubt, it should be noted that the above considerations only concern the issue as to whether the complainant's case could be covered by the Community rules on free movement. If this question were (after a proper examination of the complainant's arguments) to be answered by the Commission in the affirmative, the restriction on the right to free movement that would then exist might still be justified, taking into account "the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect". Lastly it should also be recalled that where the Commission arrives at the conclusion that an infringement exists, it disposes of a discretion as to whether or not to open infringement proceedings.

The Commission's detailed opinion

In its detailed opinion, the Commission pointed out that, in the light of the new arguments that the complainant had submitted in his letter to the Ombudsman of 7 June 2005, it was ready to register this letter as a new complaint. The Commission added that its services would contact the complainant in order to obtain his formal approval for the proposed approach. This new complaint would be examined on the basis of Article 18 of the EC Treaty, notably as regards the proportionality of the measures taken by the national authorities. The Commission expressed the hope that by doing so it would be able to address the issues raised in the draft recommendation.

The complainant's observations

In his observations, the complainant submitted that the inquiry to be carried out by the Commission should consider the fact that his administrative appeal lodged on 20 November 2003 had still not been dealt with by the German authorities and that both Article 18 and Article 39 of the EC Treaty should be examined. The complainant also asked for all his submissions, including his references to the case-law of the Community courts and to commentaries on the right to free movement, to be taken into account.

THE DECISION

1 Alleged failure properly to deal with infringement complaint

1.1 The complainant is a German citizen. The German tax authorities consider that the complainant owes them EUR 358 000. In November 2003, the city where the complainant lives ordered the complainant to surrender his passport on the grounds that he was likely to go abroad in order to avoid having to pay the above-mentioned debt. The city also decided that the validity of the complainant's personal identity card ("Personalausweis") was to be limited to Germany. As a result, the complainant was unable lawfully to leave the territory of the Federal Republic of Germany. The complainant lodged an administrative appeal against this decision.

On 30 March 2004, the complainant, a German citizen, turned to the European Commission in order to complain about an infringement of his right to free movement under Article 18 of the EC Treaty.

In his complaint to the Ombudsman lodged in November 2004, the complainant alleged that the Commission had failed properly to handle his infringement complaint against Germany.

1.2 In its opinion, the Commission essentially submitted that it had handled the matter properly.

1.3 On 29 June 2005, the Ombudsman addressed a draft recommendation to the Commission in which he suggested that the latter should reconsider the infringement complaint submitted to it by the complainant.

1.4 In its detailed opinion on this draft recommendation, the Commission pointed out that, in the light of the new arguments that the complainant had submitted in his letter to the Ombudsman of 7 June 2005, it was ready to register this letter as a new complaint. This new complaint would be examined on the basis of Article 18 of the EC Treaty, notably as regards the proportionality of the measures taken by the national authorities. The Commission expressed the hope that by doing so it would be able to address the issues raised in the draft recommendation.

1.5 In his observations, the complainant submitted that the inquiry to be carried out by the Commission should consider the fact that his administrative appeal lodged on 20 November 2003 had still not been dealt with by the German authorities and that both Article 18 and Article 39 of the EC Treaty should be examined. The complainant also asked for all his submissions, including his references to the case-law of the Community courts and to commentaries on the right to free movement, to be taken into account.

2 Conclusion

In view of the above, the Ombudsman takes the view that the Commission has accepted his draft recommendation and that the measures taken to implement it are satisfactory.

The Ombudsman notes that in his observations on the Commission's detailed opinion, the complainant has requested that the Commission should take account of certain issues in the new inquiry. Given that most of these issues were already raised in the complainant's letter of 7 June 2005, which the Commission proposes to register as a new complaint, the Ombudsman considers that the Commission will, in any event, consider these issues. However, a copy of the complainant's observations will be forwarded to the Commission in order to avoid any possible misunderstanding in this respect.

The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case C-415/93 Bosman [1995] ECR I-4921.

(2) Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171.

(3) Case 180/83 Moser v Land Baden-Württemberg [1984] ECR 2539.

(4) Case C-18/95 Terhoeve [1999] ECR I-345.

(5) Case C-357/98 Yiadom [2000] ECR I-9265.

(6) Case C-107/90 Masgio [1991] ECR I-1119.

(7) COM(2002) 141 final, OJ 2002 C 244, p. 5.

(8) COM(2002) 141 final, OJ 2002 C 244, p. 5.

(9) The draft recommendation is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(10) COM(2002) 141 final, OJ 2002 C 244, p. 5.

(11) In addition to the cases cited by the Commission, see Wölker/Grill, commentary on Article 39, paragraphs 11-13, in von der Groeben/Schwarze (eds.), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft, 6th edition, Baden-Baden 2003.