The background to the complaint

1. This complaint concerns the European Commission's refusal to extend the deadline for the withdrawal of dairy intervention stocks under the 2010 programme for the free distribution of food to deprived persons[1] (hereinafter 'the 2010 programme'). The complaint was lodged by a French lawyer on behalf of eight Greek cheese factories and Nutria, a Greek company selling foodstuffs, which was selected by the Greek authorities to supply cheese in the context of the 2010 programme[2].

2. The 2010 programme was laid down in Commission Regulation (EC) No 1111/2009 of 19 November 2009[3]. Article 3(1) of Regulation (EC) No 1111/2009 provided that, by way of derogation from Article 3(2) of Regulation (EEC) No 3149/92[4], butter and skimmed milk powder for the 2010 programme must be withdrawn from intervention storage from 1 May to 30 September 2010.

3. On Wednesday, 29 September 2010, the Greek Ministry for Rural Development and Food sent to the Commission's Directorate-General for Agriculture (hereinafter 'DG AGRI') a request for an extension of the deadline set for the 2010 programme. The letter, which was in Greek, was "formally received and registered" by the Commission on Monday, 4 October. The Greek authorities justified the request for an extension of the deadline by referring to delayed procedures for implementing the plan. Specifically, they explained that unexpected events in Greece had delayed the procedures for the prompt implementation of the free distribution of Feta cheese programme. The Greek authorities requested a one-and-a-half-month extension of the deadline laid down in Article 3(1) of Regulation (EC) No 1111/09. According to the Commission, this was not the first time that the Greek authorities invoked internal administrative difficulties to justify the under-execution of the annual programme.

4. On 21 October 2010, the Commission replied to the Greek authorities. The Commission pointed out that the Regulation adopting the 2010 programme provided for butter and skimmed milk powder to be withdrawn from intervention storage from 1 May to 30 September 2010, so as to ensure that these products would not enter the market at an inappropriate moment during the year. The Commission stated that 30 September, which already constituted an additional month compared to the usual deadline of 31 August, is the absolute deadline, after which non-withdrawn products are no longer allocated to the Member State to which they were assigned. The Commission further noted that Regulation (EC) No 1111/2009, adopting the 2010 programme, was published in the EU's Official Journal in November 2009, allowing Member States a fairly long period of time to complete national procedures and implement the plan. The request for an extension was therefore not accepted.

5. On 1 December 2010, the Greek authorities sent another request to DG AGRI, again in Greek, for an extension of the deadline for the withdrawal of skimmed milk powder. The request was registered on 3 December and the translation of the request was made available on 5 January 2011. The letter drew attention to the following: the Greek audit authority ruled on 28 September 2010 that the contract with Nutria AE, namely, the company selected by the Greek authorities on 6 September 2010 following completion of the necessary tendering procedures, could not be signed. The Greek government contested this decision, which was finally annulled on 19 November 2010. The Greek authorities therefore reiterated their request to the Commission for an extension of the relevant deadline. They referred to: (i) the economic situation which made it difficult to find appropriations from the state budget to cover national participation in the programme; and (ii) provisions of national law on contractual procedures and mandatory pre-contractual control by the audit authority.

6. On 24 January 2011, the Commission replied to the Greek authorities rejecting this further request, on the same grounds put forward in its previous letter.

7. On 15 February 2011, the complainant asked the Commission to revise its decision not to extend the deadline for the withdrawal of skimmed milk powder. The complainant argued that: (i) the Commission had not sufficiently taken into account the catastrophic economic situation in Greece, which caused delays in the national tendering procedures due to the necessary pre-financing; (ii) the Commission had not sufficiently taken into consideration the needs of deprived persons in Greece; (iii) according to national law, all contracts above a certain threshold (namely, over EUR 3 million) have to be submitted for approval to the audit authority; and (iv) the refusal to grant an extension is based on a purely legalistic approach. On 2 March 2011, the complainant addressed a letter to the President of the Commission, asking him to instruct the Commissioner for Agriculture to prepare a regulation extending Regulation (EC) No 1111/2009.

8. On 16 March 2011, the Commission replied to the complainant's letter of 15 February, repeating the aforementioned reasons for not granting the extension. It further stated that to ensure a homogeneous, as well as sound management of the scheme, the applicable Regulation does not foresee the possibility of granting exceptions to the final deadline, which is 30 September. Moreover, the programme is implemented on an annual basis and cannot go beyond 31 December. The Commission further stated that the difficult financial and budgetary situation of Greece could not justify delays in the tendering procedures, given that the plan is entirely financed by the EU. Moreover, national tendering procedures, including the need for the audit authority to give its prior agreement, were known in advance, it said, and the national authorities had 11 months to complete the tendering procedures. As to the needs of the most deprived people in Greece, the Commission said that they had been taken into account when allocating the resources for the 2011 programme. In adopting this programme, the Commission decided, despite the 2010 under-execution, not to reduce the Greek allocation, as it could have done by virtue of Article 2(1) of Commission Regulation (EU) No 807/2010.

9. In a further letter to the complainant, dated 7 April 2011, the Commission noted that the first request to extend the deadline was sent by the Greek authorities on 29 September 2010 and received by the Commission on 4 October 2010, namely, after the deadline foreseen in the Regulation for the withdrawal of products. After that deadline, products are no longer allocated to the Member State to which they were assigned, the Commission said. The Commission further indicated that the stocks allocated to Greece for 2010 have been sold. The Commission pointed out that the scheme is applied on the basis of annual programmes that are to be implemented by 31 December each year. On 21 October 2010, the Commission adopted the 2011 programme[5], taking into account the needs expressed by Greece. According to informal contacts, the Greek authorities will not encounter the same implementation problems, said the Commission.

The subject matter of the inquiry

Allegation

10. The complainant alleged that the Commission wrongly refused to extend the deadline for the withdrawal of dairy intervention stocks for the 2010 programme for the most deprived persons in Greece.

The inquiry

11. The complaint was submitted to the Ombudsman on 1 March 2011. On 31 March, the Ombudsman opened an inquiry by asking the complainant for clarifications relating to his complaint. In light of the clarifications provided, the Ombudsman asked the Commission for an opinion on 29 June. On 25 October, the Commission sent its opinion, which was forwarded to the complainant with an invitation to submit observations. The complainant submitted observations on 8 December 2011.

12. The Ombudsman decided to carry out further inquiries into the complaint by asking the Commission, on 5 September 2012, to respond to several questions. The Commission responded on 6 November 2012. The Commission's response was sent to the complainant, who provided his observations on 14 December 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

13. As laid down in Article 228 of the Treaty on the Functioning of the EU, the European Ombudsman shall help to uncover maladministration in the activities of the Union institutions, bodies, offices, and agencies. No action by any other authority or person may be the subject of a complaint to the Ombudsman. It should be noted, in this context, that this complaint concerns the activities of the European Commission only. As far as any maladministration may or may not have been committed by the Greek authorities, the Ombudsman underlines that this is not the subject of his inquiry.

A. Allegation that the Commission wrongly refused to extend the deadline

Arguments presented to the Ombudsman

14. The Ombudsman began the present inquiry by asking the complainant to explain why the Commission's refusal to extend the deadline was unreasonable. The complainant replied as follows:

(i) Commission Regulation (EC) No 1111/2009 does not foresee any final date for the implementation of the 2010 programme.

(ii) An extension of the deadline would not have had any consequences on the stability of the EU dairy market. The European market for skimmed milk powder was depressed when Regulation (EC) No 1111/2009 was being drafted. However, when stocks could be withdrawn, the market was totally different. Even if the market situation had not changed, the quantity of skimmed milk powder allocated to Greece (9% of the stocks) was limited. It is unlikely that the entry of these products on to the market would have disrupted it and led to a decrease in price.

(iii) With regard to the Commission's argument that an additional month had already been granted for the withdrawal of milk products, the complainant insists that this is provided for in Commission Regulation (EU) No 807/2010 (formerly Regulation (EEC) No 3149/92), which Regulation (EC) No 1111/2009 seeks to implement.

(iv) In reply to the Commission's statement that, after 30 September 2010, the products which have not been withdrawn are counted again in the intervention stocks and that the skimmed milk powder stored in Germany had been sold, the complainant states that the information he obtained from the German authorities is that, on the date of the complaint, the stocks were still available. The complainant points out that this led to additional storage costs which could have been avoided.

(v) With regard to the Commission's reference to the 2011 programme and its insistence that the needs of the Greek authorities have been taken into account, the complainant argued that the eight feta cheese factories were awarded quantities which they will not be able to use.

(vi) Finally, the complainant does not understand why the Commission puts forward legal reasons while thousands of families suffer from malnutrition. It argues that the economic crisis has been the main driver of the delay in the implementation of the 2010 programme in Greece and concludes that, with its decision, the Commission has ignored the needs of the most deprived population in Greece.

15. In its opinion on the complaint, the Commission argued that delays in the implementation of the annual programmes for the most deprived persons in Greece are of a structural nature resulting from poor administrative procedures: Greece has under-executed several annual programmes, as a consequence of which its annual allocation has been cut on various occasions. The 2010 programme, as adopted by the Commission, granted sufficient time to Member States to complete national procedures. Out of the 19 participating Member States, only Greece was not able to use the quantities assigned, the Commission said.

16. The Commission further pointed out that all tender procedures were frozen in Greece at the beginning of 2010, even if the state budget was needed only to pre-finance expenses. However, in the framework of the scheme in question, the beneficiary Member States are entitled to withdraw a certain quantity of intervention stocks, which does not require pre-financing. The Commission therefore insisted that the economic difficulties experienced in Greece in 2010 cannot be presented as a justification for delays in implementing the 2010 programme.

17. The Commission further argued that the Greek request to extend the deadline was not only late but also ill-founded. Such an extension would have interfered with the normal financial operation of intervention stocks.

18. Finally, the Commission contended that it took due account of the interests of the most deprived persons in Greece by not reducing Greece's national allocation in 2011 (which it could have done on the basis of Article 2(1) of Commission Regulation (EU) No 807/2010), despite the fact that the underperformance by Greece meant that deprived European citizens did not benefit to the tune of EUR 10.5 million in 2010.

19. The complainant advanced a number of arguments in his observations on the Commission's opinion. Firstly, with regard to the tardiness of the Greek request, he stated that the Commission was informed orally at the end of the second week of September 2010 that Greece was having difficulties with the scheme. The Commission asked the Greek Permanent Representation to make its request to extend the deadline in writing. This request was submitted by fax on 29 September and hand delivered to the Commission the following afternoon. However, it was only registered on 4 October. The Commission then took almost three weeks to respond to the first formal request and almost two months to respond to the second formal request.

20. The complainant argued that the difficulties invoked by Greece were not structural or traditional but were rather based on: (i) the delicate financial situation in the country, which translated into an impossibility to free up the funds to pay the necessary sums in advance; (ii) the newly imposed obligation to submit each tender adjudication to the Greek Court of Auditors for an opinion; and (iii) the appeals lodged by operators whose offers were not accepted.

21. Most pertinently, the complainant pointed out that, on 3 December 2011, Commission Implementing Regulation (EU) No 1260/2011 of 2 December 2011 amending Regulation (EU) No 945/2010 adopting the plan allocating to the Member States resources to be charged to the 2011 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the EU and derogating from certain provisions of Regulation (EU) No 807/2010[6] was published in the Official Journal. The complainant quotes the following from the Recitals to the Regulation (emphasis added):

"(1) Taking into account that the availability of intervention stocks for the supply of the scheme for food distribution to the most deprived persons in the 2012 annual plan ... is substantially reduced as compared to the previous years, it is appropriate to extend the implementation period of the 2011 annual plan...

(2) As a result of appeals launched against tender procedures and delays in the relevant judicial procedures, Greece has been unable to complete payments for certain purchases of food products in the market and to withdraw a part of the allocated quantity of butter from Union intervention stocks ... Portugal presented a similar request relating to the deadline for payment operations ... In view of the difficult financial situation faced by these Member States, it is appropriate to allow them to complete payment operations for products mobilised on the market and to allow the withdrawal of the remaining quantities of intervention stocks, so that these allocations remain available to increase the quantity of food products distributed to the most deprived people. It is, therefore, necessary to grant an extension of those two deadlines. In order to ensure equal treatment of Member States, the derogations should cover all payment operations for products mobilised on the market and all withdrawals of dairy products from intervention stocks under the 2011 annual plan ...".

22. The complainant further quoted the following from Article 1 of Commission Implementing Regulation (EU) No 1260/2011:

"... the implementation period of the 2011 annual distribution plan shall finish on 29 February 2012";

and

"...for the 2011 distribution plan, withdrawal of butter and skimmed milk powder from intervention stocks shall take place from 1 June to 31 December 2011."

23. In other words, said the complainant, all the reasons, motives and arguments that Greece advanced to try to obtain, in 2010, a one-month extension of the deadline and which the Commission refused to countenance required an amendment of the Regulation adopting the 2011 programme, whereby all Member States could benefit from a two-month extension. In the complainant's view, the Commission's decision not to extend the deadline in 2010 was profoundly unfair, inhumane, and constituted proof of inequitable treatment of Member States' interests[7].

24. After having analysed the submissions by the parties, the Ombudsman decided that further inquiries into this case were needed. He thus asked the Commission to reply to the following question:

(1) Could the Commission explain why it extended the implementation period of the plan allocating to the Member States resources to be charged to the 2011 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the EU, while it insisted that a similar extension was not possible in 2010? It would be useful if the Commission could explain its decision, in light of some of the reasons it gave in 2010 for not extending the relevant deadline, namely:

-to ensure a homogeneous, as well as sound management of the scheme, EU legislation does not foresee the possibility of granting exceptions to the final deadline for the withdrawal of products from intervention stocks, which is 30 September;

-the plan is implemented on an annual basis and cannot go beyond 31 December.

25. In its reply, the Commission stressed that derogations from otherwise applicable rules should be limited to exceptional circumstances, as difficulties can arise when extensions are granted. With regard, specifically, to its decision to extend the relevant deadlines in 2011, the Commission drew attention to the fundamentally different circumstances pertaining at the time. These related both to the specific Greek situation and to the implementation of the 2012 programme.

26. Firstly, with regard to the 2010 request, the Commission underlined that it was not only late but also lacked sufficient reasons justifying the extension. In that regard, the Commission also had to take into account that Greece regularly faced implementation problems in the past. This is why the Commission refused the Greek request in 2010.

27. By way of contrast, in 2011, the Greek request pointed to unexpected legal proceedings which rendered proper implementation of the 2011 programme impossible. Without an extension, Greece would have lost not only 30% of its envelope under the 2011 programme, but repeated underperformance would, in all likelihood, have led the Commission to cut the Greek allowance for the following years — exactly when Greece needed the scheme more than ever due to the worsening economic and social crisis. In order to avoid this, the Commission opted to extend to 31 December 2011 the deadline for the withdrawal of butter and skimmed milk powder from intervention stocks.

28. With regard to the extension of the 2011 implementation period from 31 December 2011 to 29 February 2012, which was made in response to a request from Spain, supported by several other Member States, the Commission explained that it was due to the exceptional circumstances pertaining in that year. The 2012 programme could only allocate around 20% of the theoretically available budget of EUR 500 million. The allocation of the remaining EUR 380 million was possible only in March 2012, following the adoption of a new legal basis by the Council and the European Parliament. By extending the 2011 implementation period, Member States could bridge the gap between the 2011 programme and the late allocation of the remaining 2012 resources.

29. Finally, the Commission underlined its awareness of the importance of the Most Deprived Persons Programme, especially at a time of crisis, uncertainty, and hardship. In the Commission's view, its decision not to apply sanctions against Greece in 2011 and to grant the requested extensions in 2011 constitutes proof of its sensitivity to the problem.

30. In its observations, the complainant argued that the difficulties referred to by the Commission which prevented it from extending the deadline for the 2010 programme did not seem to apply when it decided on a much longer extension in 2011.

31. The complainant stressed that the situation in 2010 was equally exceptional, notably in terms of the legal proceedings brought by tenderers whose offers had not been accepted. The complainant stated that, while the original request by the Greek authorities to the Commission to extend the deadline may have been succinct, the Greek authorities explained these reasons orally to the Commission.

32. The complainant further insisted that Spain was the first Member State to request an extension in 2011 and that Greece and Portugal supported that request. Notwithstanding this, the Commission referred only to Greece and Portugal in the preamble to the Regulation granting the extension. The complainant implies that this is to protect the position of certain responsible officials in DG AGRI.

33. Finally, the complainant took issue with the Commission's view of Greece's problems in terms of implementing the annual programmes.

The Ombudsman's assessment

34. The Ombudsman notes that it is not disputed that the Commission refused to extend the deadline for the withdrawal of dairy intervention stocks for the 2010 programme, beyond the 30 September 2010 deadline laid down in Regulation (EC) No 1111/2009. He recalls that the allegation at issue is that the Commission wrongly refused to extend the deadline.

35. The Ombudsman underlines that, in deciding whether or not to extend the deadline, the Commission enjoys a margin of discretion. The Ombudsman has consistently stated that, whenever an institution exercises its margin of discretion, he will only find maladministration if it is shown that there was a manifest error of assessment in relation to the exercise of that margin of discretion. The Ombudsman will not substitute his own assessment for the Commission's assessment, but may rather request that the matter be re-examined in order to address the issues identified. The Ombudsman notes that this approach is in line with the standard applied by the Union courts[8].

36. The Ombudsman has further held[9] that the use of a discretionary power cannot lead to arbitrariness[10]. In other words, a public authority must always have good reasons for choosing one course of action over another. A normal part of exercising a discretionary power is to explain the reasons why a particular course of action has been chosen. The Ombudsman will therefore examine the reasoning put forward by the Commission to assess whether its decision stands up to scrutiny.

37. Moreover, when making a discretionary decision, an institution must act within the limits of its legal authority[11]. Very broad discretionary powers may exist, but they are always subject to legal limits. General limits on such authority are established by the case-law of the Court of Justice. This requires, for example, that administrative authorities should act consistently and in good faith, avoid discrimination, comply with the principles of proportionality, equality and legitimate expectations, and respect human rights and fundamental freedoms.

38. Principles of good administration also require the EU institutions to act consistently[12]. Given that the Commission refused to extend the deadline for the withdrawal of dairy intervention stocks for the 2010 programme, while it granted an extension in 2011, it could be accused of not acting consistently, unless it had legitimate reasons for doing so. The Ombudsman will therefore examine the extent to which different considerations led the Commission to extend the deadline in 2011.

39. The Ombudsman notes that, while the Commission presented both the Greek authorities and the complainant with a range of reasons for not extending the deadline in 2010, it focused on two main reasons in the response to the Ombudsman's further inquiries: (i) the Greek 2010 request was not only late but also lacked sufficient reasons justifying the extension; (ii) the Commission had to take into account that Greece regularly faced implementation problems in the past.

40. In relation to (i), the complainant argued that the Greek authorities outlined their reasons orally to the Commission. In relation to (ii), the complainant contests the Commission's interpretation.

41. The Ombudsman finds the Commission's explanation as to why it did not extend the deadline in 2010 to be reasonable and that the complainant's counter-arguments do not bring forth sufficient evidence to call that explanation into question.

42. With regard to 2011, the Ombudsman notes that the Commission, in its reply to the Ombudsman's further inquiries, focused on two main reasons for extending the deadline for the withdrawal of intervention stocks: (i) the Greek request pointed to unexpected legal proceedings which rendered proper implementation of the 2011 programme impossible; (ii) without an extension, Greece would have lost not only 30% of its envelope under the 2011 programme but repeated underperformance would, in all likelihood, have led the Commission to cut the Greek allowance for the following years — exactly when Greece needed the scheme more than ever due to the exacerbating economic and social crisis. The Commission puts forward a third reason for extending the 2011 implementation period (from 31 December 2011 to 29 February 2012), which related to (iii) the late adoption of a new legal basis for the allocation of the remaining EUR 380 million envelope for the 2012 programme.

43. With regard to (i), the Ombudsman agrees with the complainant that it invoked this reason already in 2010.

44. With regard to (ii), the Ombudsman notes that Article 2(1) of Commission Regulation (EU) No 807/2010 provides that, in adopting the annual programme for the distribution of food for the benefit of the most deprived persons, the Commission shall "take account of how operations were carried out and the uses to which resources were put in previous financial years ...". The Commission's argument, therefore, that without an extension the Greek allocation would have been cut for the following years, exactly when Greece needed the scheme more than ever, is reasonable.

45. With regard to (iii), the Ombudsman notes that the Commission's decision to extend the implementation period to 29 February 2012 was based on an initial request from Spain. Given that, in its response to the 2010 request from Greece, the Commission stated quite categorically that "the plan is implemented on an annual basis and cannot go beyond 31 December", it is important to examine the Commission's reasoning in relation to the 2011 extension.

46. The Commission explained that the 2011 extension helped it to address the problem arising from the late adoption of a new legal basis for the allocation of the remaining EUR 380 million envelope for the 2012 programme.

47. The Ombudsman's considered opinion is that this specific feature of the 2012 programme, coupled with the difficulties faced by several countries in using their allocation for 2011, constitute an adequate reason for deciding, exceptionally, to grant an extension in 2011.

48. In light of the above, the Ombudsman finds that the Commission put forward adequate reasons for not extending the deadline for the 2010 programme. The fact that it decided, exceptionally, to extend the deadline for the 2011 programme does not alter this conclusion, given that the Commission provided adequate reasons, based on the specific factual situation applying to the 2012 programme, which justified, exceptionally, extending the deadline for the 2011 programme.

C. Conclusion

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

There was no maladministration by the Commission in this case.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 1 July 2013

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[1] The scheme to distribute free food to the most deprived persons in the EU was launched as an emergency measure in the winter of 1986/87, when surplus stocks of agricultural produce were given to Member State charities for distribution to people in need. The measure was subsequently based on intervention stocks. The scheme was amended in 1995 to allow the surplus stocks to be complemented by a financial contribution. Each year, Member States wishing to participate in the scheme communicate their needs to the Commission, in terms of quantities of the products available in intervention stocks. The Commission defines a budget ceiling for each participating Member State and a list of products to be withdrawn from public stocks or purchased on the market, using the budget allocated. When intervention stocks are supplied, tenders are launched for the conversion, or exchange, of these commodities into processed products. These products are distributed as food aid to the most deprived, either in the form of food baskets or as meals in centres run by charities and other competent bodies designated by the Member States.

[2] According to the Commission, Greece was allocated resources worth EUR 20 044 478 to implement the programme in its territory. Part of the resource allocation was in the form of intervention stocks, specifically 64 397 tonnes of cereals and 5 889 tonnes of skimmed milk powder. The skimmed milk powder was to be withdrawn from intervention stocks in Germany. Again, according to the Commission, Greece used only 47.3% of its allocation in 2010: the allocated intervention cereals were used completely (EUR 9 487 949), whilst none of the allocated dairy products was withdrawn (EUR 10 556 528).

[3] Commission Regulation (EC) No 1111/2009 of 19 November 2009 adopting the plan allocating to the Member States resources to be charged to the 2010 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community and derogating from certain provisions of Regulation (EEC) No 3149/92, OJ 2009 L 306, p. 5.

[4] Commission Regulation (EEC) No 3149/92 of 29 October 1992 laying down detailed rules for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community, OJ 1992 L 313, p. 50. Article 3(2) of Regulation (EEC) No 3149/92, as amended, stipulated: "[w]ithdrawal of the products from intervention stocks shall take place from 1 October to 31 August of the following year on a regular basis [...] Any quantities that have not been withdrawn from intervention stocks by 30 September in the year of implementation shall no longer be allocated to the Member State to which they were assigned under the plan in question." The same provision is included in Article 3(2) of Commission Regulation (EU) No 807/20102, which – following the entry into force of the Treaty of Lisbon – codified the implementing rules of the scheme (formerly laid down by Regulation (EEC) No 3149/92). See Commission Regulation (EU) No 807/2010 of 14 September 2010 laying down detailed rules for the supply of food from intervention stocks for the benefit of the most deprived persons in the Union, OJ 2010 L 242, p. 9.

[5] The 2011 programme was therefore being implemented by the Member States when the Commission sent its reply of 7 April 2011 to the complainant. See Commission Regulation (EU) No 945/2010 of 21 October 2010 adopting the plan allocating to the Member States resources to be charged to the 2011 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the EU and derogating from certain provisions of Regulation (EU) No 807/2010; OJ 2010 L 278, p. 1.

[6] OJ 2011 L 320, p. 24.

[7] The complainant argued that, in order to modify the implementation deadlines laid down in the 2011 programme for all Member States, the Commission highlighted the situation in Greece and Portugal, while, in reality, the request for an extension was presented by Spain.

[8] See Case T-13/99 Pfizer Animal Heath SA v Council [2002] ECR-II-3305, paragraph 169.

[9] See, for example, the Ombudsman's decisions on complaint 3307/2006/(PB)JMA (http://www.ombudsman.europa.eu/cases/decision.faces/en/4653/html.bookmark); on complaint 995/98/OV (http://www.ombudsman.europa.eu/decision/en/980995.htm); and on complaint 1999/2007/FOR (http://www.ombudsman.europa.eu/decision/en/071999.htm).

[10] See Case T-13/99 Pfizer Animal Heath SA v Council [2002] ECR-II-3305, paragraph 171-2.

[11] Recommendation No R (80)2 of the Committee of Ministers concerning the exercise of discretionary powers by administrative authorities, in The administration and you, Principles of administrative law concerning the relations between administrative authorities and private persons, a handbook, Council of Europe Publishing, Council of Europe, 1996, p. 362.

[12] Article 10(1) of the European Code of Good Administrative Behaviour states: "1. The official shall be consistent in his own administrative behaviour as well as with the administrative action of the Institution. The official shall follow the Institution's normal administrative practices, unless there are legitimate grounds for departing from those practices in an individual case; these grounds shall be recorded in writing." The Commission's own Code of Good Administrative Behaviour, annexed to its Rules of Procedure, lays dawn the same obligation to act consistently. See Rules of procedure of the Commission (C(2000) 3614), OJ 2000 L 308, p 26, available at: http://ec.europa.eu/civil_society/code/general_en.htm