Decision of the European Ombudsman on complaint 1141/2006/BM against the European Commission

Strasbourg, 21 September 2007

Dear Mr G.,

On 24 April 2006, acting on behalf of the Spanish association "FOMA" ("Asociación Española de Fabricantes de Abonos Organo-Minerales y Orgánicos"), you submitted a complaint in Spanish to the European Ombudsman against the European Commission. The complaint concerned the Commission's follow up to your correspondence with it in relation to Regulation 1774/2002/EC of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption(1).

By letter of 7 June 2006, I informed the President of the Commission of your complaint and asked him to submit an opinion by 31 August 2006.

On 4 September 2006, the Commission submitted its opinion in French. On 13 September 2006, the Commission submitted a translation of its opinion in Spanish, which was forwarded to you on 21 September 2006, with an invitation to submit observations.

On 27 October 2006, you submitted your observations on the Commission’s opinion in English. On 17 December 2006, you again forwarded your observations, together with additional comments, which were acknowledged on 8 January 2007. In view of the fact that you submitted your observations to me in English, on 7 September 2007, my services contacted you in order to check whether you preferred to receive the Ombudsman's decision in English or in Spanish. You confirmed that, for practical reasons, you preferred to receive the decision in English.

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

THE COMPLAINT

The facts of the case according to the complainant are, in summary, as follows:

The complainant represents a Spanish association of manufacturers of organic fertilizers, the "Asociación Española de Fabricantes de Abonos Organo-Minerales y Orgánicos" (hereinafter "FOMA"). He explained that, on 3 February 2006, FOMA submitted to the European Commission a request for an interpretation of Regulation 1774/2002/EC of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption(2) (hereinafter, the "ABP Regulation"). The complainant also submitted a proposal for its modification. Both the request for an interpretation of the ABP Regulation and the proposal for its modification were submitted using the "Information Request Form", which is available on the website of the Commission's Directorate-General for Agriculture ("DG AGRI"). The request for an interpretation of the ABP Regulation concerned, in particular, the use of unprocessed manure, while the modification proposal concerned technical plants for the manufacture of organic fertilisers. The complainant explained that the Commission had not yet replied either to his request or to his proposal.

In view of the Commission's failure to reply, the complainant submitted a complaint to it using the complaint form referred to in the document entitled "Commission's failure to comply with the Code of Good Administrative Behaviour for Staff in the European Commission in their relations with the public", which is available on the Secretariat-General's website(3). The complainant did not obtain a reply to his complaint. He explained that both the request for an interpretation of the ABP Regulation and the modification proposal were of importance to FOMA. For this reason, he wished to obtain a reply to both the request and the proposal.

The complainant alleged, in summary, that the Commission had failed to reply to: (i) a proposal and a request submitted by FOMA on 3 February 2006 through the "Information Request Form" available on DG AGRI's website concerning the manufacture of organic fertilisers and manure; and (ii) a complaint submitted to the Commission’s Secretariat-General, concerning the above situation.

THE INQUIRY

The Commission’s opinion

In its opinion, the Commission, first, referred to the facts of the case and explained that, on 3 February 2006 the complainant, acting on behalf of FOMA, sent two documents to DG AGRI by e-mail. These documents included: (i) a request for an interpretation of the ABP Regulation and (ii) proposals for its modification. The Commission attached a copy of both documents to its opinion.

FOMA asked the Commission, in particular, to clarify whether an interpretation of the ABP Regulation made by the Spanish authorities was correct. According to the interpretation of the Spanish authorities, unprocessed manure could, without any specific microbiological control, be applied to soil. Unprocessed manure was only subject to health controls carried out on farms by regional veterinary authorities. By contrast, manure which was processed in technical plants for the manufacture of fertilisers was subject to certain requirements, such as frequent analyses (for example, for salmonella) and thermal controls(4).

FOMA argued that if unprocessed manure is considered to be safe, the requirements for manure processed in technical plants should be relaxed. It went on to argue that the requirements for fresh unprocessed manure directly applied to soil should be made stricter.

FOMA also proposed that the Commission should exempt technical plants that manufacture organic, organo-mineral fertilisers and organic amendments from the requirement of obtaining further approval under the ABP Regulation(5).

First allegation

As regards the allegation that it failed to reply to the proposal and the complainant's request in relation to the ABP Regulation, the Commission explained, in its opinion submitted to the Ombudsman, that DG AGRI received the two documents on 3 February 2006.

According to the information attached to the Commission's opinion, on 12 April 2006, the complainant sent, through the Commission's general inquiries e-mail address ("EC Address Information") an e-mail addressed to the Director-General of DG AGRI, including his request and proposal of 3 February 2006. He again asked for a reply.

After internal redistribution of the complainant's correspondence, on 25 April 2006, an official in DG AGRI sent a holding reply to FOMA. In this holding reply, the official apologised for the delay and informed it that the subject-matter of its correspondence did not fall within DG AGRI's competence, but rather within the remit of the Commission's Directorate-General for Health and Consumer Protection ("DG SANCO"). The reply also mentioned that the complainant's correspondence would be immediately transferred to DG SANCO. On the same date, namely, on 25 April 2006, FOMA's correspondence was transferred to DG SANCO and, after internal reallocation, it was registered by the responsible service of DG SANCO, namely, Unit D1, on 4 May 2006.

In view of the complexity of the issues raised in FOMA's correspondence, an official in DG SANCO sent a new holding reply to the complainant on 17 May 2006 informing him that he would receive a reply on the merits of his correspondence in the near future. DG SANCO apologised for the delay incurred thus far. Finally, the Head of Unit in DG SANCO responsible for dealing with the issue sent a substantive reply to the complainant on 8 June 2006, that is, just before the responsible service in DG SANCO was informed of the Ombudsman's inquiry in relation to the case. In his substantive reply, the responsible Head of Unit apologised for the delay. He explained to the complainant that the delay in replying was due to the fact that his correspondence had been addressed to DG AGRI, while the responsible services that could deal with his correspondence were in DG SANCO.

As regards his request for an interpretation of the ABP Regulation, DG SANCO confirmed that unprocessed manure could, under certain conditions, be applied to soil without any microbiological controls. DG SANCO explained that unprocessed manure could be applied to soil without any microbiological laboratory controls provided (i) the competent veterinary authority did not consider that it presented a risk of spreading any serious transmissible disease and (ii) the detailed and restrictive rules for trade in unprocessed manure, included in Chapter III of Annex VIII of the ABP Regulation, were followed.

DG SANCO stated that, on the other hand, processed manure and processed manure products could only be placed on the market if the conditions for processing were fulfilled(6).

DG SANCO also referred to the complainant's comments concerning potential amendments to the ABP Regulation. DG SANCO informed the complainant that, in late 2006 or early 2007, it intended to put forward a proposal with a view to amending the ABP Regulation. The suggestions proposed by FOMA would be discussed in this context. However, DG SANCO could not guarantee that such suggestions would be part of the Commission's proposal, since the Member States and other interested parties could, potentially, hold different views.

The Commission concluded, in its opinion, that the responsible services of DG SANCO had, in its letter of 8 June 2006, (i) clearly taken a position as regards the interpretation of the ABP Regulation, and (ii) acknowledged receipt of the proposals for its modification. DG SANCO informed the complainant that his proposals for the modification of the Regulation would be taken into consideration during the reflection period for the revision of the ABP Regulation. The fact that FOMA's views would be taken into consideration could not, however, prejudge the position that would eventually be retained, first, by the Commission, and subsequently, by the Parliament and the Council during the co-decision procedure. In its opinion, the Commission also pointed out that the responsible services in DG SANCO had repeated their apology to the complainant for the late reply to his correspondence.

Second allegation

As regards the failure to reply to his formal complaint, the Commission explained in its opinion that the Secretariat-General had not found any evidence to suggest that the complainant sent a complaint form. The electronic address referred to by the complainant was the address, at the Secretariat-General's website, of a "clean" complaint form.

The complainant’s observations

In his observations, the complainant included a copy of his further e-mail correspondence with the same official in DG SANCO who, on 17 May 2006, had sent him a holding reply (the "responsible official").

In an e-mail of 3 August 2006, the complainant asked, once more, for a reply to his request and proposal of 3 February 2006. On 4 August 2006, the responsible official informed the complainant that a substantive reply, dated 8 June 2006, had been sent to him about two months previously. He was forwarded a copy of this reply. The responsible official apologised, once again, for the delay in responding to his questions.

By e-mail of the same date, namely, 4 August 2006, the complainant confirmed that he had not previously received DG SANCO's reply of 8 June 2006. On the basis of the reply of 8 June 2006, the complainant made a further request for clarification in relation to the reasons why frequent analyses and controls were required for the management of manure processed in technical plants, whilst no microbiological control was required for unprocessed manure. He expressed his concerns that unprocessed manure could pose a potential risk and reiterated his proposal that the Commission should revise the requirements for manure processed in technical plants and make the requirements for fresh unprocessed manure directly applied to soil stricter.

The complainant also inquired about FOMA's proposal to modify the ABP Regulation as regards technical plants.

On 9 August 2006, the responsible official in DG SANCO provided the complainant with a detailed reply to his questions. As regards his request for clarification, the official informed the complainant of the requirements for the use and treatment of manure set out by the ABP Regulation.

First, the official explained that Article 5(2)(e) of the ABP Regulation allowed manure to be used as a fertiliser, or in a fertiliser, provided that it was the only anima l by-product used and under certain conditions set out in Chapter III of Annex VIII of the ABP Regulation. The official clarified that there were different requirements for unprocessed and processed manure.

The official explained that, according to point I of Chapter III of Annex VIII, there was, with some exceptions, a prohibition of trade between Member States of unprocessed manure of species other than poultry and horses. However, the ABP Regulation did not lay down requirements for unprocessed manure originating in and subsequently used within the same Member State. In such cases, it was the responsibility of the competent authority to assess the potential risk.

By contrast, according to point II of Chapter III of Annex VIII, the use and commercialisation of processed manure and processed manure products were allowed throughout the Community. Thus, processed manure and processed manure products originating in one Member State could be sold within the Member State of origin and in other Member States. The processed product could thus be sold to a much larger variety of customers than unprocessed manure. However, as a corollary, in order to avoid potential risks arising from such material, processing and end-product testing conditions were laid down.

The complainant was also informed of the processing and testing requirements for manure to be treated in a biogas or composting plant. These requirements were laid down in Chapter II of Annex VI of the ABP Regulation and were, to a large extent, identical to those contained in Chapter II of Annex VIII.

Concerning the complainant's proposals to amend the ABP Regulation, the responsible official informed him that, as set out in the last paragraph of DG SANCO's reply of 8 June 2006, his suggestions on potential changes to the ABP Regulation would be included in the ongoing discussions in relation to the revision of the ABP Regulation. However, it was not possible, at that stage, to predict the outcome of the ongoing discussions.

In a further e-mail of the same date, namely, 9 August 2006, the complainant acknowledged the official's answer concerning manure, but considered that it could be contested and developed several points in this regard. He stressed that fertiliser companies in Spain and in other countries were unable to comply with the controls set out in the document entitled "SCOFCAH EN SANCO/2634/2005 rev 4". Therefore, he pointed out, once more, the necessity to revise the requirements for the management of manure in technical plants, stressing that requirements should be stricter for fresh unprocessed manure that was directly applied to soil. He asked the responsible official to comment on his arguments. The complainant also thanked the responsible official for taking into consideration FOMA's proposal to amend the ABP Regulation as regards technical plants.

By e-mail of 10 August 2006, the responsible official informed the complainant that the points raised in his previous e-mail might also be brought up when discussing the review of the ABP Regulation. However, the official emphasised that, at the time of writing, the legal situation remained as she had described it in her previous messages and regretted that she could not give the complainant a different answer. On 11 August 2006, the complainant thanked the official for her replies. He expressed his hope that the Commission would revise the requirements for technical plants. He also expressed his interest in receiving information about this matter in future.

In his observations to the Ombudsman on the Commission's opinion, which he also copied to the responsible official in DG SANCO, the complainant expressed his gratitude for her patience and answers. On the basis of DG SANCO's initial reply of 8 June 2006 and of the e-mail correspondence subsequently exchanged with the responsible official, the complainant questioned, once more, the necessity for stricter requirements for fertilisers manufactured from a "safe" raw material and reiterated his proposal that the requirements for the management of manure and other by-products in technical plants for fertilisers be revised. He also reiterated his proposal for exempting technical plants from the need for further approval under the ABP Regulation , in accordance with paragraph C of the document entitled SCoFCAH Working Group (Anima l by-products) of 19 December 2005. He based his proposal on the view that, according to the Regulation and the Commission's answers, the raw materials were safe. The complainant asked the Commission to resolve these questions and requested that the Ombudsman provide him with comments.

In reply to the Commission's comment that he had not included evidence of the complaint he had submitted to the Secretariat-General, t he complainant also attached to his observations a copy of the first page of the Information Request Form which he had submitted to the Commission on 3 February 2006 and which included FOMA's request for an interpretation of the ABP Regulation. He clarified that he had re-submitted it again on 11 April 2006(7), but that the website did not allow the registration of the date.

THE DECISION

1 Failure to reply to a proposal and a request

1.1 The complainant represents a Spanish association of manufacturers of organic fertilizers, the "Asociación Española de Fabricantes de Abonos Organo-Minerales y Orgánicos" (hereinafter "FOMA"). He alleges that the European Commission failed to reply to a request for an interpretation and a proposal for modification of Regulation 1774/2002/EC laying down health rules concerning anima l by-products not intended for human consumption(8) (hereinafter, the "ABP Regulation"), submitted by FOMA on 3 February 2006. The request for an interpretation of the ABP Regulation concerned the use of unprocessed manure while the proposal referred to technical plants for the manufacture of organic fertilisers. They had been submitted through the "Information Request Form" available on the website of the Commission's Directorate-General for Agriculture ("DG AGRI").

More specifically, FOMA asked the Commission to clarify whether, according to the Spanish authorities' interpretation of the ABP Regulation, fresh unprocessed manure could, without any specific controls other than health controls by regional veterinary authorities, be applied to soil. FOMA also mentioned that manure which was processed in technical plants for the manufacture of fertilisers was subject to strict requirements, such as frequent analysis (for example, for salmonella) and thermal controls(9).

FOMA considered that if unprocessed manure is deemed to be safe, the requirements for manure processed in technical plants should be revised.

FOMA also considered that the requirements for fresh unprocessed manure directly applied to soil should be made stricter.

FOMA also proposed to exempt technical plants that manufacture organic, organo-mineral fertilisers and organic amendments from the need for further approval under the ABP Regulation(10).

1.2 In its opinion, the Commission confirmed that DG AGRI received FOMA's request and proposal on 3 February 2006. According to the information attached to the Commission's opinion, o n 12 April 2006, the complainant sent, through the Commission's general inquiries e-mail address ("EC Address Information") an e-mail addressed to the Director-General of DG AGRI, including, once more, his request and proposal of 3 February 2006 and asked for a reply. After internal redistribution of the complainant's correspondence, on 25 April 2006, an official in DG AGRI sent a holding reply to FOMA. In this reply, the official apologised for the delay and informed it that the subject-matter of its correspondence did not fall within DG AGRI's competence, but rather within the remit of the Commission's Directorate-General for Health and Consumer Protection ("DG SANCO"). The letter also mentioned that FOMA's correspondence would be immediately transferred to DG SANCO. On the same date, namely, 25 April 2006, FOMA's correspondence was transferred to DG SANCO and, after internal reallocation, it was registered by the responsible service of DG SANCO, namely, Unit D1, on 4 May 2006.

In view of the complexity of the issues raised in FOMA's correspondence, an official in DG SANCO sent a new holding reply to the complainant on 17 May 2006, informing him that he would receive a reply on the merits of his correspondence in the near future. DG SANCO apologised for the delay incurred thus far. Finally, the Head of Unit in DG SANCO responsible for dealing with the issue sent a substantive reply to the complainant on 8 June 2006, that is, just before the responsible service in DG SANCO was informed of the Ombudsman's inquiry into the present case. In his substantive reply, the responsible Head of Unit apologised for the delay and explained that it was due to the fact that the complainant’s correspondence had been addressed to DG AGRI, while the responsible services that could deal with his correspondence were in DG SANCO.

1.3 In his letter of 8 June 2006, the responsible Head of Unit confirmed that unprocessed manure could, subject to certain conditions, be applied to soil without any microbiological controls. He referred to these conditions. The Commission also informed FOMA that its suggestions for the modification of the ABP Regulation would be discussed given that, in late 2006 or early 2007, DG SANCO intended to put forward a proposal for the amendment of the ABP Regulation. However, DG SANCO could not guarantee that the suggestions would be part of the Commission's proposal for the amendment of the ABP Regulation.

1.4 In its opinion, the Commission therefore concluded that the responsible services of DG SANCO took a position as regards the request for an interpretation of the ABP Regulation and that they proposed to take FOMA's comments into consideration during the reflection period for the revision of the ABP Regulation. The Commission also pointed out that the responsible services in DG SANCO reiterated their apology to the complainant for the late reply.

1.5 According to the information attached to his observations, the complainant had further e-mail correspondence with DG SANCO. On 3 August 2006, he contacted the responsible official(11), asking for a reply to his request and proposal of 3 February 2006. By e-mail of 4 August 2006, the responsible official informed the complainant that DG SANCO had sent him a substantive reply about two months previously and provided him with a copy of this reply of 8 June 2006. The responsible official apologised, once again, for the delay in responding to his questions. On the same date, namely, on 4 August 2006, the complainant confirmed that he had not previously received DG SANCO's reply. On the basis of the copy of the reply which he received, the complainant made a further request for clarification about the need for frequent analysis and controls in the processing of manure in technical plants, whilst no microbiological control was required for unprocessed manure. He expressed his concerns that unprocessed manure could pose a potential risk and reiterated his idea of revising the requirements for manure processed in technical plants and of making requirements stricter for the use of fresh unprocessed manure applied directly to soil. He also inquired, once more, about FOMA's proposal to modify the ABP Regulation.

On 9 August 2006, the responsible official in DG SANCO provided the complainant with a detailed reply to his request for clarification on the use and treatment of manure and informed him that DG SANCO's substantive reply of 8 June 2006 had addressed his proposals for the modification of the ABP Regulation. DG SANCO reminded the complainant that, although potential changes to the legislation were currently being discussed and his suggestions would be included in the discussion, it was not possible to predict their outcome at that stage. On the same date, namely, on 9 August 2006, the complainant made further remarks as regards manure and asked the responsible official for comments. The complainant also thanked the official for taking into consideration his proposal to amend the ABP Regulation as regards technical plants. By e-mail of 10 August 2006, the complainant was informed that the points included in his e-mail of 9 August 2006 might also be brought up when discussing the review of the ABP Regulation, but that, at the time of writing, the legal situation remained as it had been described in the official's previous messages. The official regretted that she could not give the complainant a different answer. On 11 August 2006, the complainant thanked the official for her replies. He expressed his hope that the Commission would revise the requirements for technical plants. He also expressed his interest in being informed about this matter in future.

1.6 In his observations on the Commission’s opinion sent to the Ombudsman, the complainant expressed his gratitude to the responsible official in DG SANCO for her patience and answers. On the basis of DG SANCO's initial reply of 8 June 2006 and of the e-mail correspondence subsequently held with the responsible official, the complainant questioned, once more, the necessity for stricter requirements for fertilisers manufactured from a "safe" raw material. The complainant also reiterated his proposal that the requirements for the processing of manure and other by-products in technical plants for fertilisers be revised. He also reiterated FOMA's proposal to exempt technical plants from the need for further approval under the ABP Regulation(12). He asked the Commission to resolve these questions and asked the Ombudsman for his comments.

Procedural issues

1.7 The Ombudsman notes that Article 14(1) of the European Code of Good Administrative Behaviour provides that "[e]very letter or complaint to the Institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period." Further, Section 4 ("Dealing with Enquiries") of the Commission's Code on Good Administrative Behaviour, establishes that "(...) A reply to a letter addressed to the Commission shal l be sent within 15 working days from the date of receipt of the letter by the responsible Commission department. (...)."

The Ombudsman also recalls Article 15(1) of the European Code of Good Administrative Behaviour, which provides that

"[i]f a letter or a complaint to the Institution is addressed or transmitted to a Directorate General, Directorate or Unit which has no competence to deal with it, its services shall ensure that the file is transferred without delay to the competent service of the Institution. (...)" (emphasis added).

In addition, according to Article 17(1) of the said Code: "[t]he official shall ensure that a decision on every request or complaint to the Institution is taken within a reasonable time-limit, without delay, and in any case, no later than two months from the date of receipt. (...)".

1.8 The Ombudsman notes that the Commission as a whole is responsible for the actions of its various services. However, the Ombudsman considers that, in the present case, it is useful to distinguish between the roles of DG AGRI and DG SANCO.

First, as regards DG SANCO, the correspondence from the complainant was transferred by DG AGRI to DG SANCO on 25 April 2006. It was assigned to the responsible services within DG SANCO on 4 May 2006. DG SANCO sent a holding letter to the complainant on 17 May 2006, including an apology for the delay in its reply. DG SANCO sent a substantive reply to the correspondence on 8 June 2006 and expressed its regret as regards the delays incurred. DG SANCO explained to the complainant that the delay in replying to him was due to the fact that his correspondence had been addressed to DG AGRI, while the responsible services that could deal with his correspondence were in DG SANCO. In its opinion, the Commission also informed the Ombudsman that the responsible services of DG SANCO had reiterated their apology for the delay in replying.

The Ombudsman is of the view that DG SANCO acted with diligence in dealing with the initial correspondence from the complainant, once it received it from DG AGRI. It also acted with diligence as regards the further correspondence from the complainant in August 2006, a fact which was recognised by the complainant in his observations to the Ombudsman.

As regards DG AGRI, although the complainant's correspondence was received by this DG on 3 February 2006 and the complainant sent his correspondence once more on 12 April 2006, it was not acknowledged until 25 April 2006, that is, more than two months later. The complaint was only transferred to DG SANCO on the same date. The Commission has provided no explanation for this delay. While the complainant may have raised complex issues in his correspondence, DG AGRI did not have to formulate a substantive response, but merely to evaluate whether the issues fell within its area of responsibility, and subsequently transfer the correspondence to the responsible services. Further, even if this initial analysis were to require a significant period of time, this would not excuse the failure to send even a holding response to the complainant within a reasonable period. DG AGRI sent a holding reply to the complainant only on 25 April 2006.

In light of the above, and taking into account the apologies already made to the complainant, the Ombudsman deems it necessary to invite the Commission to consider reminding its services of the obligations laid down in the European Code of Good Administrative Behaviour and also in the Commission's Code of Conduct concerning the need to respond adequately and in a timely manner to citizen's requests, and, with regard to matters for which they have no competence, to transfer, without delay, those requests to the competent services.

In the light of the above, the Ombudsman considers necessary to make a further remark below.

Substantive issues - request for an interpretation of the ABP Regulation

1.9 From a substantive point of view, the Ombudsman notes that, in its letter of 8 June 2006, the Commission provided the complainant with a clarification of his request for an interpretation of the ABP Regulation as regards the use of unprocessed manure.

DG SANCO explained that the conditions that apply to the use and commercialisation of unprocessed manure were different from the conditions that apply to the use and commercialisation of processed manure and processed manure products. While detailed and restrictive rules were set out in the ABP Regulation for trade of unprocessed manure, emphasis was placed on processing conditions for processed manure. DG SANCO confirmed that unprocessed manure could, under certain conditions, be used on soil without microbiological control. DG SANCO stated that, on the other hand, processed manure and processed manure products could be placed on the market, without specific trade restrictions, provided processing conditions were fulfilled.

After having checked the relevant legislation, the Ombudsman considers that the reply provided by the Commission to the complainant on 8 June 2006 appears to be accurate.

Moreover, the Ombudsman notes that, in his observations, the complainant does not appear to be dissatisfied with the clarifications provided by the Commission.

Substantive issues - request for amendment of the ABP Regulation

1.10 The Ombudsman recalls that, as set out in his Annual Report 1997, it is not his task to examine the merits of legislative acts of the Communities, such as Regulations or Directives. Therefore, the role of the Ombudsman as regards this allegation is limited to assessing whether the complainant was informed of the current legislative situation and whether his amendment proposals were taken into consideration.

The Ombudsman notes that, in its reply of 8 June 2006, DG SANCO acknowledged the complainant's comments as regards potential amendments of the ABP Regulation. The complainant was informed that, although it could not be guaranteed that his suggestions would be part of the Commission's future proposal to amend the legislation, his suggestions would be discussed. The Ombudsman also notes that, in its opinion, the Commission, reiterated that, in its reply of 8 June 2006, it had acknowledged FOMA's proposal to modify the ABP Regulation.

The Ombudsman notes that, as explained in paragraph C of the Commission's working document entitled "Expected co-decision review of the ABP Regulation (EC) N° 1774/2002"(13), the Commission identified certain areas to be changed in the Regulation. According to this document, the Commission proposed to modify the body of the legal text through legislation (draft Regulation), to review health rules and to take into account the experience gained from the Regulation’s application since 1 May 2003. The Ombudsman is aware that, although the Commission may submit a proposal for the modification of the Regulation, the Member States and the sectors involved may have different views and that the outcome could be different from the Commission's initial proposal. In addition, it would not be possible to foresee the position that would be retained by the Parliament and the Council in the co-decision procedure.

The Ombudsman therefore considers that the Commission's reply to the complainant's proposal of 3 February 2006 for the amendment of the ABP Regulation seems reasonable, since, at that stage, the Commission could not have known the final outcome of its eventual proposal to modify the Regulation.

The Ombudsman also notes that the complainant's further correspondence of 4 and 9 August 2006 seems to have been addressed in an appropriate manner by the responsible official on 9 August 2006 and 10 August 2006. Further, in his e-mail of 11 August 2006, and in his observations to the Ombudsman on the Commission's opinion, the complainant expressed his gratitude to the responsible official for her answers.

1.11 In light of the above, the Ombudsman considers that no further inquiries are necessary as regards the complainant's first allegation.

2 Failure to reply to a complaint submitted to the Commission's Secretariat General

2.1 The complainant alleges that the Commission failed to reply to a complaint submitted to the Commission’s Secretariat-General, as regards the lack of response to FOMA's request of 3 February 2006 for interpretation of the ABP Regulation, as well as for its proposed modification. The complainant explains that FOMA used the complaint form concerning the Commission's failure to comply with the Code of Good Administrative Behaviour for Staff in the European Commission in their relations with the public, which is available on the Secretariat-General's website.

2.2 In its opinion, the Commission explains that the Secretariat-General has not found any evidence to suggest that the complaint sent a complaint form and points out that the electronic address referred to by him is the address, at the Secretariat-General's website, of a "clean" complaint-form.

2.3 In reply to the Commission's comment that he had not included evidence of his complaint to the Secretariat-General, t he complainant attached to his observations a copy of the first page of the Information Request Form submitted to the Commission on 3 February 2006, which included FOMA's request for an interpretation of the ABP Regulation. He clarifies that he re-submitted his request again on 11 April 2006(14) but that the website did not allow the registration of the date.

2.4 The Ombudsman notes that the complainant has not, either in his complaint or in his observations, provided a copy of the complaint form submitted by FOMA to the Secretariat-General. In fact, the Ombudsman notes that the complainant included, instead, a copy of first page of the Information Request Form submitted to the Commission by FOMA on 3 February 2006.

Under these circumstances, the Ombudsman considers that there is no need for further inquiries into the complainant's second allegation.

3 Conclusion

On the basis of the Ombudsman's inquiries into this case, the Ombudsman finds that no further inquiries are needed as regards the complainant's first and second allegations. The Ombudsman therefore closes the case.

FURTHER REMARK

The Ombudsman invites the Commission to consider reminding its services of the obligations laid down in the European Code of Good Administration and also in the Commission's Code of Conduct concerning the need to respond adequately and in a timely manner to citizens' requests, and, with regard to matters for which they have no competence, to transfer, without delay, those request to the competent services.

The President of the Commission wil l be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2002 L 273, p. 1.

(2) OJ 2002 L 273, p. 1.

(3) The Ombudsman notes that the complainant did not specify the date of this complaint.

(4) The complainant referred to the requirements included in the document entitled "SCOFCAH EN SANCO/2634/2005 rev.4". "SCOFCAH" stands for "Standing Committee on Food Chain and Animal Health".

(5) In accordance with paragraph C (List of areas that need changes) of the document entitled "SCOFCAH Working Group (Anima l by-products)" of 19 December 2005.

(6) DG SANCO also pointed out that Commission Regulation 181/2006 of 1 February 2006 implementing Regulation EC 1774/2002 as regards organic fertilisers and soil improvers other than manure and amending that Regulation (OJ 2006 L 29, p. 31) laid down requirements for organic fertilisers and soil improvers which differed from those contained in Chapter III of Annex VIII of the ABP Regulation.

(7) According to the documents provided by the Commission in its opinion and by the complainant in his observations, the complainant, acting on behalf of FOMA, sent an e-mail on 12 April 2006 to the Director-General of DG AGRI through the "EC Address Information" form, in which he included FOMA's request and proposal.

(8) OJ 2002 L 273, p. 1.

(9) The complainant refers to the requirements included in the document entitled "SCOFCAH EN SANCO/2634/2005 rev.4". "SCOFCAH" stands for "Standing Committee on Food Chain and Animal Health".

(10) In accordance with paragraph C (List of areas that need changes) of the document entitled "SCOFCAH Working Group (Anima l by-products)" of 19 December 2005.

(11) The complainant contacted the official in DG SANCO who, on 17 May 2006, had sent him a holding reply.

(12) In accordance with paragraph C of the document entitled "SCoFCAH Working Group (Anima l by-products)" of 19 December 2005.

(13) ScoFAH Working Group (Anima l by-products) of 19 December 2005.

(14) According to the available information, the complainant, acting on behalf of FOMA, sent an e-mail to the Director-General of DG AGRI through the "EC Address Information" form, in which he once more included his request and proposal of 3 February 2006.