Decision of the European Ombudsman closing his inquiry into complaint 3594/2006/PB against the European Commission

THE BACKGROUND TO THE COMPLAINT

1. The present case concerns alleged maladministration in the European Commission's response to information and queries regarding alleged technical deficiencies in valves placed on the EU/EEA-market by a South-Korean valve manufacturer. The valves were produced to prevent flames from entering into the cargo tanks in oil tankers. The complainant himself was acting on behalf of a Danish manufacturer of such valves. The 'valves' are a model type comprising several model numbers, such as 'NEW-ISO-HV-65' and 'NEW-ISO-HV-80', (hereinafter 'the valves'/ 'the disputed valves').

2. In early 2000, the complainant concluded that the valves did not comply with the relevant technical standards, and informed the Commission and the Danish Maritime Authority accordingly. Subsequently, in February 2004, the Commission received a letter from the Danish Maritime Authority informing it that measures had been taken in respect of the valves for failing to comply with the technical standards. The Danish Maritime Authority had decided to prohibit the valves and to order the removal of such valves already installed on ships flying the Danish flag.

3. The above-mentioned information, sent to the Commission by the Danish authorities in 2004, was provided as part of a so-called 'safeguard clause procedure'. This procedure is laid down in Article 13 of the EU Marine Equipment Directive[1], which provides, in summary, that Member States which find that relevant marine equipment may compromise health, safety or the environment shall take interim measures (such as prohibition or market restriction) and inform the Commission, which will subsequently formulate a finding as to whether the measures are justified. The measure introduced by the Danish authorities in the present case involved the prohibition and market removal of the disputed valves.

4. In response to the information received from the Danish Maritime Authority in 2004, the Commission adopted an opinion on 9 June 2005 (the '2005 Opinion', published in the Official Journal). While concluding that the measures adopted by the Danish Maritime Authority were "adequate and proportionate for the protection of maritime safety and therefore justified", the Commission accepted the supporting evidence provided by the Danish authority only in part. In particular, the Commission found that the test results and ship inspection reports provided to it regarding the valves covered by the interim measures were "largely contradictory". Moreover, the Commission highlighted "the uncertainty on the circumstances of the tests, as regards inter alia the condition of the tested valves, which had been removed from the ships, the testing facilities where the tests were carried out and the calibration of the instruments used." Furthermore, it noted that "these tests seem to have been carried out on different test rigs, due to different interpretations of the applicable standards ISO 15364, which refers to 'a recognized national or international standard'. ... The 'recognized national or international standard' should be considered, for the purpose of Directive 96/98/EC, to be the standard EN 12874:2001, which lays down precise mounting conditions for the testing of the devices in question."

5. At the end of its opinion, the Commission made the following recommendations:

"2. The Commission recommends that the Member States ensure that valves of the model NEW-ISO-HV-80 to which the mark referred to in Article 11 of Directive 96/98/EC (hereinafter, 'the mark') has been affixed before 1 January 2003 are removed from their markets.

3. The Commission recommends that, where the valves referred to in paragraph 2 are installed on board ships flying their flag, the Member States ensure that they are removed.

4. The Commission furthermore recommends that the Member States ensure that all valves of the model NEW-ISO-HV-80 manufactured by TANKTECH Co. Ltd to which the mark has been affixed after 1 January 2003 and which have been installed on board ships flying their flag are examined as soon as possible in order to ascertain that they conform to the type. Where upon examination those valves are found not to conform to the type, the Commission recommends that they are removed and that the case is reported to the Commission and to the other Member States.

Where valves of the model NEW-ISO-HV-80 manufactured by TANKTECH Co. Ltd not bearing the mark have received a certificate of equivalence in accordance with Article 8(3) of Directive 96/98/EC, paragraphs 2 to 4 apply mutatis mutandis.

6. The Commission recommends that the parties carry out jointly within a reasonable time, which should normally not exceed six months, a new test on a representative sample of new valves of the model NEW-ISO-HV of all sizes at a mutually agreed laboratory in accordance with the applicable testing standards, including in particular European standard EN12874:2001, with the aim to determine whether or not the type meets the applicable minimum requirements under normal ship operating conditions. They should communicate the results to the Commission and to the Member States forthwith."

6. The complainant in the present case did not, however, consider that there was any reason or scope for (re-)examining the conformity of the disputed valves. Following the Commission's 2005 Opinion, the complainant wrote to the Commission several times to demonstrate, in essence, that the disputed valves clearly did not comply with the minimum standards set out in the relevant technical rules, and that the continuing use of the disputed valves was clearly unlawful. The complainant referred to the results of tests that had been carried out by various European testing institutes.

7. Additionally, the complainant questioned the Commission's actions after, and resulting from, the 2005 Opinion, and queried whether the Commission had allowed the manufacturer of the disputed valves to compensate for the (alleged) technical deficiencies, merely by ensuring careful installation of the valves[2]. Referring to a letter which the manufacturer of the disputed valves had sent to its customers, the complainant asked the following:

"It appears that the EU Commission decided that use of ... NEW-ISO-HV is safe where the 'necessary information has been provided by the [manufacturer] and properly applied during the design and construction of the final installation by the user'.

Under the assumption that [the manufacturer's] insight with the proceedings is correct, we fail to understand the concept of 'necessary information' as opposed to the documentation required by the rules, in particular IMO MSC/Circ. 677, cf. ISO 15364."

8. In response, the Commission informed the complainant, on 20 July 2006, that it had "taken due note of your considerations on this case and the information provided, but does not wish to comment on ongoing proceedings". The complainant replied to this, explaining in more detail its view that "[i]f a manufacturer can avoid complying with the required safety margins and deliver a valve of lower capacity, there is a direct cost saving that other manufacturers miss out on. This, from our point of view, is the key issue. There are other implications [concerning safety], but this must be the concern of the authorities having to answer in case an accident should occur." It maintained the point that "[t]ests made in Germany, England, The Netherlands, and Denmark, as well as the single test made in Germany at the recommendation of the Commission, all demonstrate that the [disputed] valves end up with less capacity than required." The complainant further sent similar correspondence to the Commission in February 2007, following his submission of the present complaint to the European Ombudsman. The Commission replied, in summary, as follows:

9. It first noted that the complainant had "requested confirmation that a number of occurrences (flow data deviation, strong oscillation, flash-back and use for non-approval cargoes) are permissible, and in that connection sought to be allowed 'what others are de facto permitted at the moment within the Internal Market'". It then stated that:

"In this respect, please note that for the equipment falling within the scope of Directive 96/98/EC, conformity with national law transposing the harmonised requirements laid down in the said directive needs to be ascertained by the authorities of the Member State(s) concerned or a notified body acting on their behalf before such equipment can be placed in the market. This requirement applies to all manufacturers including your goodselves [sic].

It is not up to the Commission to issue type-approval certificates or to substitute for the Member State authorities in their above mentioned responsibility. Therefore I would invite you to address any questions you may have as to the approval of your products to the authorities of the Member States in the market of which you intend to place them ... In this connection, you should expect both the national authorities and the notified bodies to base their judgment solely on the examination and testing of the equipment you may submit for certification, without regard to any considerations on the quality of the goods manufactured by your competitors.

As to the ongoing case concerning the valves manufactured by [the manufacturer of the disputed valves], the Commission services have taken due note of the abundant documentation you have been providing over the past years and have given it due consideration.

At this juncture, however, I believe it becomes necessary to dispel what seems to be a number of recurring misunderstandings:

1. The purpose of the safeguard mechanism enshrined in article 13 of Directive 96/98/EC is to avoid that restrictive measures taken by a Member State in respect of equipment certified under the authority of another Member State constitute unjustified barriers to the free movement of such goods within the Internal Market.

2. This in no way waives the Member States' responsibility to ensure safety either before and after the Commission has acted.

3. The Commission's role is to determine whether the measures referred to in indent 1 are justified or not. In the above-mentioned case, the Commission complied with its obligation on 9 June 2005, giving a particularly detailed explanation of the reasons of its conclusions and recommendations. Its opinion was notified individually to each Member State and published in the Official Journal of the European Communities. The Member States have therefore been closely informed on the subsequent developments.

4. The safeguard clause is thus essentially a procedure between the Commission and the Member states - the manufacturer concerned being logically granted the instruments pertaining to its right of defence. Each case is examined by the Commission impartially, based on its own merits, with the help of independent technical advice and taking into account the generally applicable principles of law, not least those of fairness and proportionality. While the interested parties are heard as you certainly have been, the Commission is not bound to discuss with these third parties either the completeness and correctness of their assumptions as to the contents of the file or their speculations on the Commission's intentions."

10. Following the present complaint, and shortly before the Commission submitted its opinion on it, the Commission issued, on 20 June 2007, its second and final opinion regarding the disputed valves ('2007 Opinion'). A short account of this opinion is provided below.

11. In its 2007 Opinion, the Commission made a number of observations. It noted that a new model of valves ('U-ISO series') had replaced the disputed valves here concerned. The new model had received type approval by the relevant French authorities.

12. With regard to the disputed valves here concerned, ('NEW-ISO-HV'), the approval certificate for these had expired on 19 March 2007 and would not be renewed. The Commission noted that the relevant tests of the disputed valves, carried out pursuant to its 2005 Opinion, had not revealed "any other inherent defect of the model concerned". The tests had "nevertheless showed a significant influence of the testing rig layout on the results, which highlights the importance of correctly installing the valves on board ships". A "procedure" (referred to as such) had therefore been agreed between the parties ("the parties concur"), which implied individualised follow-up measures to ensure safety, and a report-mechanism from the manufacturer to the Commission and the other parties.

13. At the end of its opinion, the Commission concluded that "[t]he parties have given appropriate follow-up to the opinion delivered by the Commission on 9 June 2005 and have taken adequate measures to protect safety". It then made the following recommendations:

"1. Any episodes identified by the manufacturer that might indicate malfunction as regards valves of models NEW-ISO-HV and U-ISO already placed on board ships be reported forthwith not only to the Commission and to the other parties as agreed, but also to the flag State regardless of the ship's flag.

2. The Member States carry out a similar verification concerning ships flying their flag and equipped with pressure/vacuum relief valves of the same kind, regardless of their make, and investigate any such episodes in order to determine the most likely cause."

14. Further relevant information and comments relating to this 2007 Opinion are referred to and discussed below in the Ombudsman's assessment.

THE SUBJECT MATTER OF THE INQUIRY

15. On 21 March 2007, the Ombudsman opened an inquiry into the following allegation and claim:

The Commission failed properly to address the matters raised by the complainant with regard to the trade of the valve at issue and fair competition.

The complainant claim that the Commission should take appropriate action in relation to the matter referred to above.

16. The complainant essentially repeated his understanding, referred to above, of the factual, procedural and legal issues involved, namely, that (i) the disputed valves, manufactured by his company's competitor, did not comply with the relevant minimum requirements, and that the Commission had failed to provide explanations or evidence dispelling this view, and (ii) the Commission had allowed the manufacturer of the disputed valves to compensate for the (alleged) technical deficiencies through careful installation of the valves and/or through an "inspection programme" not foreseen in the relevant rules, and had failed to explain to the complainant the nature of its relevant actions on this issue.

THE INQUIRY

17. The Ombudsman sent the complaint to the Commission, which submitted its opinion on 5 September 2007. The opinion was forwarded to the complainant, who submitted observations on 30 November 2007. On 24 September 2008, the Ombudsman made a proposal for a friendly solution. The friendly solution proposal contained, in summary, two parts, in which the Commission was encouraged to provide more detailed relevant information to the complainant. The Commission sent its opinion on that proposal on 29 April 2009. The opinion was forwarded to the complainant, who submitted observations on 26 June 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

18. In its opinion on the Ombudsman's friendly solution proposal, the Commission expressed the concern that the rule for complaints to the Ombudsman to be preceded by appropriate prior administrative approaches to the institution was not adequately enforced in this case. Specifically, the first part of the friendly solution proposal - namely, an encouragement to provide specific information to the complainant - had, in its view, not been preceded by a corresponding specific express request for information from the complainant.

19. The Ombudsman would first like to point out that the rule referred to by the Commission leaves a large margin of discretion in individual cases. The relevant provision of the Ombudsman's Statute, Article 2(4), merely refers to "appropriate" prior administrative approaches. This does not, for instance, imply a duty for the complainant to exhaust all possible prior steps before turning to the Ombudsman (see Article 2(8), which does contain such a strict requirement in relation to complaints concerning work relations with the institutions), nor does it by definition prevent complainants from submitting complaints before a related administrative procedure has been finalised. It is true that, for quite obvious reasons, the Ombudsman himself generally prefers that the institution has already been given the opportunity to respond to the issues raised by a complainant. This helps the Ombudsman to decide whether an inquiry should be opened or not, and provides for a better basis of assessment if an inquiry is opened. In the case here concerned, the Commission and the complainant had exchanged a very considerable amount of correspondence. The last exchange before the Ombudsman opened his inquiry did not suggest that the communication between the two parties would become more constructive and open. The Ombudsman notes this without wanting to express any criticism towards either the Commission or the complainant, and recognising how correspondence may evolve when strong disagreement on both procedural and substantive issues are repeatedly expressed on both sides. However, in light of the above, the Ombudsman considered that further approaches by the complainant to the Commission were not likely to be fruitful. The same background should be noted in respect of the broad formulation that was given to the allegation taken up for inquiry in this case.

20. With specific regard to the information issue raised in the first part of the proposal for a friendly solution, the Ombudsman recalls that the identified issue on which more information could have been given to the complainant was fundamental to the concerns raised in the complainant's correspondence to the Commission. In fact, if the complainant had been informed of the Commission's technical position on the relevant issues early on (and, of course, had accepted that position), the key basis of the complainant's grievances would have ceased to exist. To this extent, the appropriateness of addressing this information gap was both inherent in the case and of considerable importance.

21. The Ombudsman finally wishes to recognise that significant resources have been spent on dealing with this case, which in the first place resulted in an identification of informational duties and possible related issues. It should be noted that, subsequent to the opening of this inquiry, the Ombudsman has been increasingly using a so-called 'extended telephone procedure', which allows for a relatively rapid and less bureaucratic handling of, in particular, cases involving information issues and possible related issues or misunderstandings in the institutions' correspondence with citizens. Elements similar to some of those in the present case could possibly, in comparable future cases, be dealt with through the said procedure, which the Ombudsman understands to be appreciated and well-received at the European Commission.

A. Allegation that the Commission failed properly to address the matters raised by the complainant with regard to the trade of the valve at issue and fair competition: (a) issue of compliance and (b) issue of "compensation" for non-compliance

Preliminary remarks

22. In his proposal for a friendly solution, the Ombudsman made, in summary, the following preliminary remark for the purpose of his analysis.

The Commission pointed out that the complainant was not, in legal terms, a party to the safeguard procedure under Article 13 of the Marine Equipment Directive. This appeared to be accurate, and the complainant therefore did not enjoy legal rights as a party in that administrative procedure.

The Commission nevertheless has certain obligations, deriving from the general duty of good administration, to provide members of the public with the information[3]. The scope of this duty may vary from case to case, depending on the relevant circumstances. With respect to the circumstances of the present case, the Ombudsman notes the following:

The complainant's company is a manufacturer of the same type of product which constitutes the object of the present case. It, therefore, has concrete and legitimate concerns regarding the marketing of such products, with which it competes. The Commission appears to fully recognise this[4]. In the present inquiry, the Commission has provided various information on the complainant's involvement in the 'case' concerning the disputed valves, its correspondence with the complainant, and its handling of the materials submitted to it by the latter. It appears from the Commission's opinion that it recognises a link between the evidence initially obtained by the complainant and the opening of the safeguard procedure by the Danish authorities in 2004. This material was obtained by the complainant from professional third parties (testing institutes) as evidence in relation to the issues involved in the case. It furthermore appears that the Commission has in fact examined this evidence, as well as subsequent material provided to it directly by the complainant, in the framework of its relevant technical assessment, the conclusions on which have, as noted, been published in the Official Journal. The complainant himself has stated that it is not clear what additional technical evidence he could possibly submit in order to demonstrate his view in this case.

In light of the foregoing, it is reasonable to consider that the Commission was obliged, in the present case, to fulfil its general duty to provide information with particular care and attention, regarding the technical issues raised by the complainant, and to provide the requested explanations and information to the greatest extent possible.

Part (a) - issue of compliance

Arguments presented to the Ombudsman

23. The complainant and the Commission made, in summary, the following arguments and points.

24. With regard to the issue of the disputed valves' compliance with the technical requirements, the complainant's key concern was that the disputed valves manufactured by its competitor did not, in its view, comply with the relevant technical requirements, and that they should, therefore, be banned. The complainant put forward that several European testing institutes had carried out tests showing an unequivocal and consistent failure by the disputed valves to comply with the relevant requirements. He submitted detailed arguments and evidence in this respect. According to the complainant, the Commission had failed to address this issue, by failing to provide information on why it considered the above-mentioned test-results to be irrelevant.

25. In its opinion, the Commission first explained key aspects of the Marine Equipment Directive here involved. It stated that the Directive has a double purpose: first, to ensure the free movement of equipment in the Community, and second, to increase safety. In accordance with the principle of subsidiarity, the Marine Equipment Directive does not imply any changes to the obligation of every Member State to always ensure the safety of ships carrying their flags, since the competence for this is national. The Marine Equipment Directive lays down the technical requirements for equipment covered by its field of application, and sets out a harmonised scheme for type-approval and conformity-marking, as well as the safeguard procedure laid down in Article 13. When issuing the international safety certificate, the Member State must check: (i) that the vessel has all the equipment required by the relevant international conventions; (ii) that the equipment covered by the Marine Equipment Directive has been duly approved; and (iii) that other equipment has been type-approved, in accordance with the legislation of the Member State itself, or of another Member State. Regarding the technical requirements for equipment, a distinction is made between the requirements for the equipment's quality and functionality, on the one hand, and the compulsory testing standards, on the other hand. The first are established with reference to the relevant international conventions, the second are established with reference to both these conventions and to those standards that are adopted by the international and the European standardisation bodies.

26. The purpose of this clause is: (i) to ensure that restrictive measures adopted by a Member State with respect to equipment that has been certified by another Member State do not constitute hidden barriers to the free movement of goods; and (ii) to grant the other Member State the opportunity to make an appropriate response.

27. When the Commission was notified of the Danish authorities' decision to prohibit and order the market removal of the disputed valves, it consulted with all of the relevant parties, and carefully analysed each of the documents sent to it by the complainant. The Commission also requested an opinion from the European Maritime Safety Agency (EMSA), which consulted experts in the field. The technical opinion from EMSA was given particular weight in the Commission's assessment.

28. The documentation which the complainant submitted to the Commission, and which was subject to a careful examination in the present case, dates back to 2003, that is, to the year when the complainant asked the Commission to prohibit the disputed valves. At that time, the Commission explained to the complainant how the safeguard procedure works. The arguments subsequently put forward by the complainant were essentially repeated by the Danish authorities in their 2004 correspondence to the Commission. Following the Commission's 2005 Opinion, the complainant intensified its correspondence with the Commission. This correspondence can be divided into three categories: first, copies of several test-reports on the disputed valves, which were carried out for the complainant by different laboratories; second, copies of the complainant's press releases, in which the latter put forward its view on the matter; and third, copies of various communications, in particular letters sent by the complainant to EMSA and/or the Commission, containing requests for permission to sell valves with the same (and allegedly non-compliant) technical specifications as those of the disputed valves.

29. The findings and conclusions in the Commission's 2007 Opinion on this matter were made in light of: (i) a technical opinion submitted by EMSA; and (ii) the voluntary measures taken by the manufacturer of the disputed valves, which had been agreed upon by the French and the Danish authorities during negotiations carried out under the guidance of the Commission. With regard to the technical opinion submitted by EMSA, this was adopted with due regard to: (i) the results of the tests carried out by the parties; (ii) the documentation submitted by the manufacturer; and (iii) the documentation submitted by the complainant in the present case.

30. It must be emphasised that the above-mentioned tests, carried out for the complainant in this case, did not in any way form part of the Commission's follow-up on its 2005 Opinion, since none of the Commission's recommendations in that Opinion had been addressed to the complainant. The tests carried out for the complainant were of the same type as those which the Commission had already refrained from taking into account in its 2005 Opinion, the reason being that the tests did not comply with the relevant reliability-conditions. The results of the tests were nevertheless examined to see if they contained any useful information.

31. With specific regard to the technical issues involved, the Commission already stated in its 2005 Opinion that the test results submitted to it by the Danish authorities did not have sufficient evidential value because of the testing-conditions. On this point, the Commission carefully followed the technical opinion of EMSA. Following its 2005 Opinion, the Commission has been able to observe the direct influence that the testing conditions have on the functioning of the valves, since the results of the tests were all very different, depending on the testing conditions applied. This observation, which is fully confirmed in the technical opinion of EMSA, and which the parties have accepted without objection, is expressly stated in the Commission's 2007 Opinion.

32. In its observations on the Commission's opinion, the complainant maintained his complaint. He also took note of the various assurances that the Commission had given regarding its analysis of the information the complainant submitted to it. However, he retained the impression that the Commission refused to accept test results from several European laboratories, and found that he had not been given concrete information as to why this was the case. The complainant added that it was not clear what further technical evidence could be produced to demonstrate that the disputed valves did not comply with the relevant standards. The complainant pointed out that the opinion of EMSA, which the Commission referred to, had not been given to him.

33. In his proposal for a friendly solution, the Ombudsman made preliminary remarks concerning the complex technical nature of the issues involved and the scope of his assessment. He pointed out that the European Ombudsman cannot, for obvious reasons, assess complex technical issues with a view to either confirming, or substituting his judgment for, the technical conclusions arrived at by the parties to the case. Furthermore, he recalled that the allegation taken up for inquiry is not that the Commission's technical view is wrong, but that it has "failed properly to address" the matters raised by the complainant (see paragraph 22 above).

34. On the substance of the above issue, and following a careful examination of the material submitted to him in the course of the inquiry, the Ombudsman concluded that the Commission did not, as a matter of fact, provided the complainant with precise information or explanations regarding the alleged irrelevance of the test results that the complainant submitted to it. The Commission's communications to the complainant (as well as its published 2005 and 2007 opinions) were clear throughout regarding the conclusions giving rise to its view that the tests were, on the whole, irrelevant. However, the Commission did not appear to have explained to the complainant which technical requirements and data (relating to the concrete tests) it used to arrive at those conclusions. In light of the circumstances of the present case, such explanations would have been appropriate, taking into account that the issues involved in this case were most complex, and in view of the fact that the complainant apparently went to great lengths to obtain concrete alternative test results from the above-mentioned European test laboratories. Finally, the Commission did not, as such, cite any specific rules that would prevent it from explaining to the complainant the specific reasons for its conclusions on the unreliability of the tests in question. In light of these findings, the Ombudsman made the following friendly solution proposal to the Commission: The Commission could inform the complainant, with respect to each of the tests he submitted to it as evidence, why it considers them to be irrelevant. In doing so, the Commission could make specific references to the relevant testing and compliance rules.

The arguments presented to the Ombudsman after his friendly solution proposal

35. In its opinion, the Commission provided detailed technical information on its analysis of the said test results. This information was provided on: (i) a one-page description of the tests and the way that they should be considered, including references to technical maritime safety standards; and (ii), a one-page sheet with a table containing an overview of the tests and relevant technical information and findings related thereto. It appeared that the information was endorsed by the European Maritime Safety Agency.

36. In his observations on the Commission's opinion, the complainant stated that the above-mentioned information constituted the clarification called for in the Ombudsman's friendly solution proposal. He was, therefore, now aware of the concrete technical reasons why the Commission did not accept the test results that the complainant obtained from various European laboratories. However, the complainant put forward that the Commission applied a wrong technical basis in reaching its findings. It considered that the Commission must have misunderstood the relevant maritime safety rules, and explained this viewpoint in some detail, making references to both technical considerations and maritime safety rules.

The Ombudsman's assessment

37. The Ombudsman welcomes the Commission's positive response to the first part of his friendly solution proposal, which by provided the complainant with the above-mentioned information.

38. The Ombudsman regrets that the complainant, while recognising that the Commission has now provided the information concerned, is not satisfied that the Commission has interpreted the technical maritime safety rules accurately. The Ombudsman points out, however, that a full assessment of this technical aspect would extend the scope of the present inquiry. An assessment of the arguments now put forward by the complainant would have to be preceded by approaches to the Commission, which would thus have the opportunity to respond in due course. Finally, the Ombudsman is not convinced that he could meaningfully carry out such an assessment without the assistance of external expertise in the field of technical maritime safety standards. Making use of such expertise is not, however, part of the Ombudsman's normal procedures, and would require particular circumstances.

39. In light of the above, the Ombudsman considers that no further inquiries are justified.

Part (b) - issue of "compensation" for compliance

Arguments presented to the Ombudsman

40. The complainant and the Commission made, in summary, the following arguments and points.

41. The complainant formed the impression that the Commission allowed the manufacturer of the disputed valves to compensate for the (alleged) technical deficiencies through careful installation of the valves and/or through an 'inspection programme' not foreseen in the relevant rules. Additionally, he considered that the Commission had failed to explain to the complainant the nature of its relevant actions on this issue. The complainant took the view that the Commission had no legal basis for involving itself in such actions.

42. In its opinion on the present complaint, the Commission drew attention to its general competence, under Article 211 of the EC Treaty, to issue recommendations, and noted that its recommendations issued in the 2005 Opinion were backed up by careful reasoning, and were clearly in accordance with the precautionary principle and the principle of proportionality. Furthermore, it pointed out that the Community legislator has, in accordance with the relevant case-law of the Court of Justice, laid down a number of legal principles that Member States have to respect when introducing restrictive measures for safety reasons. The Commission considered it obvious that it should take these principles into account when examining a case like the present one, and also apply them itself. Article 8 of Directive 2001/95/EC[5] on general product safety thus contains principles of appropriateness, proportionality and precaution, and, in addition, specifies that: (i) the measures concerned shall encourage and promote voluntary action by producers and distributors; and (ii) product recalls shall take place only as a last resort. In the Commission's view, voluntary measures are not only in complete accordance with the Marine Equipment Directive, but also form the solution preferred by the Community legislator because they are to the greatest extent possible consistent with the principles of appropriateness, proportionality and subsidiarity. The Commission considered that, by adopting the role of "facilitator" ("facilitateur") in the present case, it had acted in a correct and cautious manner.

43. The Commission's opinion on the present complaint made further reference to the 2007 Opinion, containing findings and recommendations that appear relevant to the issue here concerned. The relevant findings were the following (Points 9-11 of the 2007 Opinion):

"As regards the units placed in the market under the current type approval certificate [i.e., the disputed valves], the parties concur that the partial testing carried out provides limited assurance to the extent that an individualised follow-up of the units already placed on board ships would constitute an adequate and proportionate measure to ensure complete safety.

The said individualised follow-up should be carried out without delay and in such a way that any episodes that might indicate malfunction, in particular pressure peaks or hammering, can be reported by the owners and investigated in order to determine the cause and take all necessary measures. The manufacturer has undertaken to carry out such a follow-up and to report back to the Commission and to the other parties; at the time of delivering this opinion, it is understood that the procedure is already in hand.

In addition to the recommendations made by the Commission to the Member States in its opinion of 9 June 2005 as regards valves of size 80 manufactured until 31 December 2002, it is prudent to carry out a similar follow-up as regards other valves of the model NEW-ISO-HV placed on board ships. The manufacturer has undertaken to carry out such a follow-up and to report back to the Commission and to the other parties; at the time of delivering this opinion, it is understood that the procedure is already in hand."

The corresponding recommendations were the following:

"The Commission recommends that:

1. Any episodes identified by the manufacturer that might indicate malfunction as regards valves of models NEW-ISO-HV and U-ISO already placed on board ships be reported forthwith not only to the Commission and to the other parties as agreed, but also to the flag State regardless of the ship's flag.

2. The Member States carry out a similar verification concerning ships flying their flag and equipped with pressure/vacuum relief valves of the same kind, regardless of their make, and investigate any such episodes in order to determine the most likely cause."

44. In his observations, the complainant maintained his position, stating that the Marine Equipment Directive refers to minimum requirements. The complainant stated that it failed to understand why the Commission did not simply insist on compliance with those minimum requirements.

45. In his assessment leading to the relevant part of his friendly solution proposal, the Ombudsman first noted that the complainant did not appear to contest, as such, the Commission's competence to issue recommendations within the framework of the safeguard procedure. Although Article 13 of the EU Marine Equipment Directive does not expressly refer to the possibility to issue recommendations, it appears to follow logically from this provision that the Commission is indeed competent to issue recommendations relevant to the subject matter raised in the course of the procedure. However, the complainant argued, specifically, that the Commission is not competent to recommend that new tests be carried out.

46. The Ombudsman found that the complainant's view was not convincing. As the Commission pointed out, the purpose of the safeguard clause in the Maritime Equipment Directive is to prevent restrictive measures, taken by a Member State in respect of equipment certified under the authority of another Member State, from constituting barriers to the free movement of such goods within the Internal Market. If the Commission had to rely exclusively on the test data provided to it by the Member State concerned (which may have intended to introduce an unjustified barrier to the free movement of goods), it is not clear how the Commission could meaningfully pursue the above-mentioned purpose of the Directive. Additionally, the complainant clearly considers that the Commission is free to examine and take into account test results provided to it freely by private operators. Freedom to do so would not be compatible with a lack of competence to recommend, on its own initiative, new testing of the product in question.

47. The Ombudsman, nevertheless, found that the Commission could have better addressed one of the complainant's basic concerns, namely, the following: If the Commission concluded, as it appears to have done, that the disputed valves fully comply with the relevant technical requirements, it is not clear why, and on what basis, the Commission brought about (or assisted to bring about) separate follow-up procedures, in order to ensure an adequate level of safety. The Ombudsman, therefore, made the following proposal for a friendly solution to this part of the case:

"The Commission could consider explaining why, after concluding that the disputed valves complied with the technical requirements, it brought about (or assisted to bring about) separate follow-up procedures in order to ensure an adequate level of safety. The Commission could explain, furthermore, whether it has concluded that the specific technical requirements, relevant to the testing of valves and maritime equipment, do not guarantee a sufficient level of safety, and, if so, what rules or principles (if any) relevant to this specific field allow for the introduction of follow-up measures or procedures that compensate for such a perceived deficit."

The arguments presented to the Ombudsman after his friendly solution proposal

48. In its opinion, the Commission clarified that it did not, at any time, conclude that the technical requirements relevant to the testing of valves and maritime equipment failed to guarantee a sufficient level of safety. The Ombudsman finds that, since such a conclusion is a precondition for a consideration of the second part of the above proposal, it is appropriate to limit the remainder of the present assessment to the first part of the proposal.

49. In its response to the first part of the above proposal, the Commission made, in summary, the following relevant points.

50. As previously pointed out by the Commission, the disputed valves were found to comply with the relevant standards and were delivered with the required documentation for their installation and use. However, one question remained relating to two generations of the valves. Specifically, following the changes and replacement of the old model (actions which finalised the response to the Danish measures), a solution was still sought regarding the valves of the old model (that is, in addition to those that were withdrawn as a consequence of the Commission's 2005 opinion), which had been installed on ships before the model was changed, and the valves of the new model, which had been installed before certification. The question was whether these two generations of valves should have been withdrawn. The parties and the Commission found that this would have been entirely disproportionate, given the results of the tests and the fact that the changes to the valve concerned a minor aspect. The elements taken into consideration in this regard were not only the economic interests of the producer of the valve, but also the huge damage that such a withdrawal measure could have on the fleet concerned. The parties considered, however, that it would be prudent to carry out a follow-up of the valves' functioning on board the ships, and the Commission shared this view.

51. The Commission added the following remarks. If there is anything to learn from this case, it is that bad installation of otherwise entirely suitable valves could pose serious risks. This, however, concerns all valves, including those of the complainant. It is for this reason that the Commission formulated, in its 2007 opinion, a general recommendation in this respect.

52. In its observations on the Commission's opinion, the complainant essentially maintained the view that the institution did not adequately explain the legitimacy of the follow-up measures. It repeated its point that different standards were allowed in the Internal Market, since valves which were prohibited in Denmark (where the entire fleet had to carry out replacements of the disputed valves) were not so in other EU Member States[6]. This, it stated, distorted competition.

53. Additionally, the complainant posed a number of questions, contested specific factual points in the Commission's opinion, and expressed concerns regarding the openness of the Commission's actions (see paragraph 60 below).

The Ombudsman's assessment

54. The Commission provided specific and concrete considerations which, in combination with its previous statements and the material in the case (see below), can be considered adequate in the present case. This finding, however, is in part premised on the accuracy of the conclusions and presumptions that the Ombudsman has drawn from the Commission's various statements (below).

55. In the first place, the Ombudsman understands the Commission to have adopted the view that the disputed valves (a) did not, at the level of testing standards, breach the relevant maritime safety rules, and (b) that the Commission's invocation of the principle of proportionality essentially concerned the standard of assessment that was applied in determining whether, in the first place, the disputed valves, in relevant ways, "... may compromise the health and/or safety of the crew, the passengers or, where applicable, other persons, or adversely affect the marine environment" (Article 13(1) of the MED Directive, emphasis added). In other words, the broad formulation "may compromise" will have to be interpreted subject to relevant proportionality considerations.

56. If the Commission were to be understood as saying that, within the meaning of the MED Directive, the disputed valves "may compromise" health and safety, and that the proportionality considerations applied to the question of whether the measures referred to therein should be taken in the first place, the finding would have to be different. Article 13 of the MED Directive provides for a compulsory adoption or withdrawal of restrictive measures ("shall") if the stated possible compromise to health and safety is ascertained. The principle of proportionality must clearly apply to the adoption and implementation of such measures, but it does not appear that it could override the obligation to adopt them in the first place[7].

57. Finally, the Commission has emphasised the voluntary and coordinating nature of its involvement in putting in place the follow-up measures here concerned. The Commission's actions and statements in this case cannot be understood to mean that those measures compensated, as such, for identified shortcomings in a legal sense. It may, therefore, be considered reasonably clarified that those follow-up measures can only be considered as additional voluntary measures that in no sense compromise the legal obligations and responsibility of any of the actors involved.

58. In this respect, it may additionally be pointed out that Article 13 of the MED Directive merely provides for the reporting, to a specialised committee referred to in Article 18, of shortcomings in the testing standards. It does not provide for a formal mechanism relevant to the implementation problems identified by the Commission in this case. This arguably supports the Commission's view that its relevant supplementary actions in that respect were appropriate for the purpose of formulating and issuing voluntary guidelines/opinions in the concrete context of the present case.

59. In light of the above, while noting that the complainant is not convinced by the Commission's position, the Ombudsman considers that the Commission's response, as understood above, can be considered adequate in the framework of the present case.

60. Finally, the Ombudsman notes that, in his last observations, the complainant posed a number of questions or challenged factual views of the Commission. An examination of those questions and issues could only take place through extensive further inquiries, for which there appears to be no justification at this point. Furthermore, it would be procedurally more useful if, with regard to some of these points, the complainant addresses the Commission and/or the EMSA directly through a request for public access to those documents that presumably support the Commission's position and factual findings[8].

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman considers that the Commission provided an adequate response to his proposal for a friendly solution. Accordingly, no further inquiries are necessary.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 17 December 2009

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[1] Council Directive 96/98/EC of 20 December 1996 on marine equipment, OJ 1997, L 46, p. 25.

[2] Letter of 7 July 2006 to the Commission.

[3] Article 22 of the European Code of Good Administrative Behaviour, adopted by the European Parliament on 6 September 2001 (the Code is available on http://www.ombudsman.europa.eu/code/en/default.htm). See also the Commission's Code, Point 4, Annex to Commission Decision of 17 October 2000, amending its Rules of Procedure, OJ 2000 L 267, p. 63.

[4] See quotation in paragraph 9 above, "[w]hile the interested parties are heard as you certainly have been ..."

[5] Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, OJ 2001 L 11, p. 4.

[6] The complainant referred to the fact that his company had commissioned tests of the disputed valves with its own name plate on them (that is, instead of the name plate of the competitor), and that certification bodies had rejected those valves.

[7] In addition to the general principle of proportionality, the Commission has referred, in summary, to proportionality considerations and related principles applicable under Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, OJ 2002 L 11, p. 4. The Ombudsman has doubts as to the applicability of the Directive to the present case, in light of the express reference to 'consumers' in its definition of 'product': "(a) 'product' shall mean any product - including in the context of providing a service - which is intended for consumers or likely, under reasonably foreseeable conditions, to be used by consumers even if not intended for them, and is supplied or made available, whether for consideration or not, in the course of a commercial activity, and whether new, used or reconditioned." However, in light of the Commission's reference to the general principle of proportionality, a detailed assessment of this issue is not deemed necessary in the present case.

[8] The Commission's guide on public access to documents is available on the following website:

http://ec.europa.eu/transparency/citguide/index_en.htm

The regulation on public access to documents mentioned therein is equally applicable to EMSA, in accordance with Regulation (EC) No 1644/2003 of the European Parliament and of the Council of 22 July 2003 amending Regulation (EC) No 1406/2002 establishing a European Maritime Safety Agency, OJ 2003 L 245, p. 10.