Decision of the European Ombudsman on complaint 659/2005/MHZ against the European Commission

Strasbourg, 7 December 2005

Dear Mr M.,

On 22 February 2005, I received your complaint against the European Commission concerning the handling of your case about the Portuguese Institute of the Consumer.

On 10 March 2005, I forwarded your complaint to the Commission.

The Commission sent its opinion in French on 19 July 2005. On 1 August 2005, the Commission sent a translation of its opinion into Portuguese, which I forwarded to you with an invitation to submit observations.

On 22 October 2005, you sent your observations.

On 23 November 2005, my services contacted you by telephone to clarify a point in your observations.

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

THE COMPLAINT

According to the complainant, the relevant facts were as follows.

In July 2004, the complainant contacted Europe Direct by telephone (calling a free phone number). He wanted to know about the possibilities of submitting a complaint against the Portuguese Institute of the Consumer.

The official who responded to the call informed him that his complaint should be submitted to DG Health and Consumer Protection and asked him to send the complaint to her e-mail address given that she worked in that DG and only temporarily for Europe Direct.

On 14 August 2004, the complainant did so. On 6 September 2004 and 11 November 2004, the complainant sent additional information to the same e-mail address. He also called the official in question twice. She confirmed that his case would be dealt with by the Commission services but said that it still had not been assigned to anyone.

In December 2004, the complainant called her once again and she gave him the name and contact data of the official to whom his case had been assigned.

Afterwards, in January 2005, the complainant contacted that official who, first asked him to send her his case by e-mail and after informed him of the name of a third official to whom the complainant's case had been assigned.

When the complainant contacted the third official, she also requested written information about his complaint. In response, the complainant sent an e-mail to her on 28 January 2005. She then informed him that yet another official would deal with his complaint.

The complainant then contacted the fourth official designated to deal with his case. She also asked him to send her information by e-mail and finally informed the complainant by phone that DG Health and Consumer Protection was not competent to deal with his complaint and that he should address the Portuguese authorities.

On 22 February 2005, the complainant lodged a complaint with the Ombudsman and attached a number of annexes to his complaint, consisting of copies of his e-mails to the Commission and documents related to the handling of his case by the Portuguese Institute of the Consumer.

The complainant alleged that the Commission failed to handle his request properly.

THE INQUIRY

The Commission's opinion

The opinion sent by the Commission can be summarised as follows.

First, the Commission recalled the background of the case. According to the Commission, the complainant lodged the complaint against a Portuguese garage owner with the Portuguese Centro de Arbitragem do Sector Automóvel (an extrajudicial organisation providing alternative dispute resolution). The procedure before that organisation requires a mandatory recourse to an expert opinion. The complainant did not agree that this point of procedure should be applied in his case and addressed a different Portuguese organisation, Instituto do Consumidor Português (Portuguese Institute of the Consumer) and also the European Consumer Centre in Portugal. Both organisations replied to the complainant's queries but he was not satisfied with these answers and e-mailed DG Health and Consumer Protection of the Commission about the matter. The complainant informed the Commission of the difficulties he had encountered when dealing with the Portuguese Institute of the Consumer and also with the European Consumer Centre in Portugal.

Second, the Commission referred to the complainant's complaint submitted to the Ombudsman. The Commission recognised and apologised for its services delay in answering the complainant's query. The Commission also stated that in January 2005, on the occasion of a telephone conversation with the complainant, a Commission official explained clearly to him that DG Health and Consumer Protection is not competent to intervene in his dispute with national institutions. The Commission services considered that written confirmation of what had been said by telephone was not necessary given that the complainant did not ask for such a written answer and given that he did not show any disagreement with the substance of the oral answer he had received.

Third, the Commission pointed out that, as was also explained to the complainant by telephone, the Commission is not competent to intervene in disputes between the consumers and the enterprises. Furthermore, the application of European and national consumer protection law is within the exclusive competence of Member States. However, in order to assist European consumers in resolving cross-border disputes, the Commission together with the Member States launched the project called the European Consumer Centres Network (ECC). Centres function in a number of Member States and are supported by European and national funds. The European Consumer Centre exists also in Portugal and is located within the Portuguese Institute of the Consumer. However, the Portuguese Institute of the Consumer, which is a Portuguese public body, is not hierarchically dependent on the European Consumer Centre.

Furthermore, the Commission explained in detail the functions and competences of the European Consumer Centres. It pointed out that they help consumers to resolve their cross-border disputes. In particular, they assist consumers from one Member State to contact enterprises or extrajudicial organisations providing alternative dispute resolution which are located in another Member State. They also inform consumers about the procedures applied by the above mentioned organisations and assist them with proceedings (for instance, they help to translate documents). However, the Centres cannot intervene in the functioning of these extrajudicial organisations and may only help consumers to have access to them.

The Commission also expressed its hopes that this opinion could answer the complainant's question concerning the use of Community funds allocated to the Portuguese Institute of the Consumer.

The complainant's observations

In summary, the complainant did not agree with the comments of the Commission on his complaint. First, he noted that his complaint to the Ombudsman was not about the case he presented to DG Health and Consumer Protection but about the handling of his case by DG Health and Consumer Protection. He stressed that his complaint concerned, in summary, the behaviour of DG Health and Consumer Protection's officials who (a) endlessly passed his file from one person to another, (b) provided him with misleading information from the beginning and throughout the handling of his file. The complainant also stated that he attached to his complaint to the Ombudsman a number of documents. However, these documents were only evidence of the case he presented to DG Health and Consumer Protection and the object of his complaint was not the case itself.

Therefore, the complainant took the view that the explanation given by the Commission in its opinion disregarded the real nature of his complaint and focused on the attached documents. Furthermore, he noted that the Ombudsman, when he opened his inquiry, did not ask the Commission to comment on these documents either.

Nevertheless, the complainant expressed his view that the analysis of the documents attached to his complaint by the Commission appears to diverge in some points from reality. He concluded however that he would not comment in detail on this analysis because the matter of this complaint to the Ombudsman did not concern the issues referred to in the attachments to his complaint.

Finally, the complainant pointed out that he had chosen English as the language of his complaint.

Further inquiries

In view of the final point in the complainant’s observations, the Ombudsman’s services contacted the complainant by telephone to inquire whether he wished to receive the Commission’s opinion in English given that his complaint was made in English but the opinion was sent to him in Portuguese. The complainant stated that he did not require a translation into English.

THE DECISION

1 Alleged failure to handle the complainant’s request properly

1.1 From August 2004 and January 2005, acting on advice originally given by Europe Direct, the complainant had numerous telephone and e-mail contacts with the Commission’s Directorate General for Health and Consumer Protection concerning the possibilities of submitting a complaint against the Portuguese Institute of the Consumer. The complainant alleges that the Commission failed to handle his request properly.

1.2 The Commission recognised and apologised for its delay in answering the complainant's query. The Commission also stated that in January 2005, a Commission official explained to the complainant by telephone that DG Health and Consumer Protection is not competent to intervene in his dispute with national institutions. The Commission services considered that written confirmation of what had been said by telephone was not necessary given that the complainant did not ask for such a written answer and given that he did not show any disagreement with the substance of the oral answer he had received.

1.3 The Ombudsman notes that the complainant submitted his query to the Commission (a) in July 2004 by telephone, and (b) in August 2004, in writing (by e-mail). Following further telephone calls and e-mails sent by the complainant, the Commission finally answered his query in January 2005, by telephone, indicating that it was not competent to deal with the substantive issue of concern to the complainant. The Commission also took the view that no written answer was necessary, a point which the complainant does not appear to contest.

1.4 The Ombudsman also notes that, in its opinion, the Commission acknowledged and apologised for the delay in answering the complainant's query. However, the complainant's observations indicate that he is not satisfied with the Commission's explanation. In these circumstances, the Ombudsman considers that it is appropriate for him to proceed to a decision on the complainant’s allegation.

1.5 On the basis of the evidence provided by the complainant in his complaint (which was not contested by the Commission in its opinion), the Ombudsman takes the view that the Commission's delay in dealing with the complainant’s request appears to be due, firstly, to the fact that the complainant's file was not assigned to an official for a period of about four months and secondly, to the repeated re-assignment of the complainant's file to different officials during a period of approximately a further month. The Ombudsman considers that the failure to assign the file to a competent official for five months was an instance of maladministration.

2 Conclusion

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

The Ombudsman takes the view that the Commission's delay in dealing with the complainant's request appears to be due, firstly, to the fact that the complainant's file was not assigned to an official for a period of about four months and secondly, to the repeated re-assignment of the complainant's file to different officials during a period of approximately a further month. The Ombudsman considers that the failure to assign the file to a competent official for five months was an instance of maladministration.

Given that this aspect of the case concerns specific events in the past and that the Commission has already acknowledged and apologised for the delay, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS