Decision of the European Ombudsman on complaint 783/01.08.96/LBR/es/KH(JMA) against the European Commission

Dear Mr B.,
On 26 July 1996 you lodged a complaint with the European Ombudsman on behalf of the "Colegio de Odontólogos y Estomatólogos" of Vizcaya. Your complaint concerned the alleged failure of the European Commission to ensure the correct application of Directive 78/686/EEC on mutual recognition of certificates of dentistry by the Spanish authorities.
On 26 September 1996, I forwarded the complaint to the President of the European Commission. On 20 December 1996 the Commission sent its comments which I forwarded to you on 27 January 1997 with an invitation to make observations by 28 February 1997. I have received your observation on 24 February 1997.
The European Commission sent some additional comments on 18 July 1997 and 16 February 1998 respectively.
I am writing now to let you know the result of the inquiries that have been made.

BACKGROUND

The complaint
In your complaint to the Ombudsman, you pointed out that the European Commission was not ensuring a proper application of Community law by the Spanish authorities. You alleged that Spain was not complying with the obligations of Directive 78/686/EEC on the mutual recognition of diplomas of practitioners of dentistry, since its authorities were recognizing odontologist degrees obtained in Latin American countries which, according to your complaint, did not meet the requirements set by the Directive.
Having received several complaints concerning the same situation, the European Commission opened infringement proceedings under article 169 of the Treaty against Spain. On 19 October 1990 the Commission sent a letter of formal notice to Spain. Due to the lack of progress by the responsible authorities, the Commission decided in August 1992 to continue the proceedings and forwarded a reasoned opinion. The Spanish authorities replied to the request in March 1993.
You had complained to the Commission in 1992. Since then, you wrote and visited its services in several occasions in order to receive information on the developments of the proceedings. You requested the Commission to sped up the process and to have access to information concerning the relevant files, in particular to obtain copies of the exchanges between the Commission and the Spanish authorities. The Commission, however, rejected your requests to see the files by explaining that its refusal was due to the confidentiality of the proceedings.
In all contacts and letters, the Commission insisted that the proceeding was following its course and that the Commission´s services were reviewing the documents sent by the Spanish authorities. You have considered that those replies were too general and unsatisfactory.
The Commission's opinion
The opinion of the European Commission to the complaint is in summary as follows:
In 1990, the institution initiated an infringement proceeding under article 169 against Spain for its failure to follow the criteria set out in directives 78/686/EEC(1) and 78/687/EEC(2) for the recognition of dental degrees.
In accordance with the article 1 paragraph 4 of Directive 78/687, "nothing shall prejudice any facility which may be granted in accordance with their own rules by Member States in respect of their own territory to authorize holders of diplomas, [...] which have not been obtained in a Member State to take up and pursue the activities of a dental practitioners".
However, in doing so, the Member State have been limited by the basic criteria laid down by both directives, and which should be met by any practitioner of specialized dentistry. The Commission considered that, in order to be recognized in the Community, an odontologist degree delivered by a non Member State have to guarantee these minimum criteria.
In spite of the previous obligations, Spain recognized automatically dental degrees obtained in Latin American countries and which did not meet the Directives minimum criteria. The recognition of these degrees was based on the provisions of bilateral international agreements concluded by Spain before its accession to the European Communities.
Although the Spanish Administration sought to comply with the provisions of the above directives, its decision were reversed on appeal by different administrative courts. As a result the provisions of the relevant directives were still not respected.
The Commission also explained that in view of the fact that the Spanish authorities were in the process of renegotiating its bilateral agreements with third countries, it had decided not take the case before the European Court of Justice.
The institution emphasised its discretion on whether or not to bring any legal proceedings under Article 169 of the Treaty, as recognized by the case-law of the European Court of Justice.
As regards the lengthy time involved in the development of this infringement proceeding under article 169, the Commission justified it on the basis of its complexity, both from a legal and a political points of view.
After receiving the reply to its reasoned opinion, the Commission asked for further information from the Spanish authorities in October 1994 and in July 1995. The Spanish authorities replied to these requests in December 1994 and October 1995 respectively.
At the time when the first comments from the Commission of 20 December 1996 were sent to the Ombudsman, the institution was still waiting for the reply from the Spanish authorities to a new request for information.
As for the alleged failure of transparency of the proceedings and the refusal to disclose the correspondence between the Commission and the Spanish government, the Commission insisted that the letters and other documents exchanged with a Member State in the context of Article 169 were of a confidential nature. On that basis, there was no obligation to share with or to pass the information on to third parties.
The Commission stressed that its handling of this proceeding had always followed principles of good administration, and its services had replied timely and properly to the letters of the complainant with whom they had met in Brussels.
The complainant's observations
I forwarded the Commission's comments to you with an invitation to make observations, if you so wished. You reply of 24 February 1997 was in summary as follows :
You indicated that the Commission interpretation of directives 78/686/EEC and 78/687/EEC was, in your view, adequate, and that you had always made all possible efforts to guarantee the proper application of these directives in Spain.
You did not agree with the Commission justification for the lengthy period of time taken for the handling of the case. You considered that since the Commission is a technical body, its primary task is to ensure the proper application of Community law by all Member States. Consequently, the Commission could not possibly justify the long time elapsed in this action on the basis of political reasons.
You asked the European Ombudsman to make the necessary inquiries to verify whether all the parties involved in the case acted in accordance with Community law.
On 29 April 1997 you forwarded a copy of a letter from the Commission to the Ombudsman. This letter informed you of the decision adopted by the Commission on 10 December 1996 to take Spain before the Court of Justice, although it also added that the request had not yet been materially lodged. The Commission had adopted this decision in view of the unsatisfactory reply given by the Spanish authorities to the Commission´s reasoned opinion.
Further inquiries
On 21 May 1997, I wrote again to the Commission requesting some further information in relation to your complaint. In this additional letter to the Commission, the Ombudsman indicated that from the last information you had submitted, it appeared as if the Commission had decided to submit the case before the Court of Justice, although the request had yet not been lodged.
In this letter, the Ombudsman also suggested that Commission should furnish more clear, precise and transparent information concerning the content of the negotiations between the Commission and the Spanish authorities and on the development of the proceedings which have taken place from 1990.
Additional information sent by the Commission
In its second reply on the present case, the Commission basically confirmed its previous comments. The institution informed the Ombudsman that at that time it was reviewing the new information submitted by the Spanish authorities on 13 June 1997.
On 16 February 1998, I received an additional communication from the Commission in which it informed me that it had decided not to lodge an application against Spain with the Court of Justice. In view of the Commission the Spanish authorities were now dealing with the relevant problem in accordance with Community law. Furthermore, the Spanish Supreme Court had changed its interpretation of existing national rules, in order to conform them with Directives 78/686/EEC and 78/687/EEC.
The Commission pointed out that the fact that the European Ombudsman had received several complaints (531/97/PD and 535/97/PD) from citizens who had obtained their dental degrees in Latin American countries, but who had not obtained the recognition of their dental degrees by the Spanish authorities, was proof of the change in the situation.
The Commission intended to close the infringement proceeding once all the international agreements subscribed by Spain which could be contrary to Community law had been denounced.

DECISION OF THE EUROPEAN OMBUDSMAN

On the basis of the information provided by the complainant and the observations submitted by the European Commission, the Ombudsman has reached the following conclusions:
Decision of the Commission not to bring the case before the Court of Justice
1.1. Under Article 155 of the Treaty, the Commission´s duty as "guardian of the Treaty" is to ensure that Community law is applied. In this role, the main legal instrument available to the Commission to compel compliance by Member States is the procedure set out in Article 169.
1.2. Accordingly, when the Commission considers that a Member State has failed to fulfil a Community obligation, it delivers a reasoned opinion. If the State concerned does not comply with the opinion, the Commission may bring the matter before the Court of Justice.
As the Court of Justice has repeatedly stated(3), the Commission has a discretionary power whether or not to apply to the Court of Justice for a declaration establishing the failure of the Member State concerned.
1.3. In the exercise of discretion a normal practice for the public administration is to explain the reasons which justify the choice of a particular course of action. Therefore, if the Commission chooses not to pursue an infringement procedure, there should be some reasoning supporting this option. These reasons should provide the basis for any potential inquiry by the European Ombudsman in order to ensure that no maladministration has taken place.
1.4. On the basis of the information submitted by the Spanish authorities on 28 October 1997, the Commission decided not to bring the matter before the European Court of Justice. This decision was prompted by the fact that the Spanish authorities had denounced several international treaties on recognition of degrees signed with some Latin American countries, and by a judgement of the Spanish Supreme Court.
1.5. In reviewing the reasons given by the Commission to justify its action, the European Ombudsman finds that the institution acted within the limits of its legal authority and therefore no instance of maladministration has been established.
Due diligence in ensuring compliance with EC law
2.1. In the context of the Ombudsman´s own initiative inquiry into the Commission´s administrative procedures in relation to citizens´complaints (303/97/PD), the Commission committed itself to adopt a decision on a complaint within a year from its registration. As it was noted at the time, the observance of this rule appeared to be an adequate means for ensuring that the complaint is processed without undue delay.
However, this general aim could be frustrated if, once a complaint has given way to the opening of an infringement proceeding, the processing of this one lingers on for many years with no satisfactory solution to the problem.
2.2. In ensuring that Member States fully comply with Community law, the Commission should work in accordance with principles of good administration, and act with due diligence. This implies that the Commission, as the guardian of the Treaty, should actively seek that the concerned Member State puts an end to the alleged infringement, and also informs the complainant of its actions.
2.3. In the process to compel the Spanish authorities to comply with Directive 78/686/EEC, formal action by the Commission was first undertaken on 19 October 1990 with the dispatch of a letter of formal notice. On 20 December 1996 the institution decided to apply to the Court of Justice, although it suspended this decision on 10 December 1997, in view of the positive results of its negotiations with Spain.
This process, still being reviewed by the Commission, has taken seven years. During this long period, the Commission has indicated it sent a reasoned opinion to the Spanish authorities on 6 August 1992, and also requested additional information on this matter in March and July 1993, October 1994, July 1995, and April 1996.
2.4. In its replies to the Ombudsman, the Commission has claimed that its attitude has been very active in relation to the complaint during the seven years that have elapsed since the sending of the reasoned opinion. However, despite a request from the Ombudsman, the Commission has failed to provide clear, precise and transparent information to support this claim and thereby demonstrate that it has acted with due diligence throughout this long period of time.
Request by the complaint to have access to certain documents
3.1. In order to clarify the proceedings, the complainant had requested in several occasions to obtain information concerning the exchanges between the Commission and the Spanish authorities. The Commission replied to such requests by refusing to release those letters on the basis of the confidentiality of the infringement proceedings.
3.2. The Commission has indicated in its replies to this inquiry that, in its role of guardian of the Treaty, the institution has to ensure an atmosphere of mutual trust with Member States. This aim could not be achieved, but for the confidential character of the contacts between the institution and the concerned Member State.
3.3. Requests for access to documents held by the Commission are to be dealt with in accordance with Commission Decision 94/90, which gives effect to the Code of Conduct adopted by the Council and Commission. Those measures place a legal obligation on the Commission to give the public the widest possible access to documents held by it. The exceptions to the right of access to documents should be interpreted strictly in order not to frustrate this specific aim of the Code of Conduct(4).
3.4 In the present case, the documents concerned are admittedly documents related to the possible opening of an infringement procedure under Article 169 EC. In the present state of Community law, the Commission has the possibility to refuse access to documents relating to investigations which may lead to an infringement procedure under the heading of protection of the public interest(5). It does not appear, therefore, that the refusal of access to documents on these grounds constitutes an instance of maladministration.

CONCLUSIONS

On the basis of the European Ombudsman´s inquiries into this complaint, it appears necessary to make the following critical remarks :

In ensuring that Member States fully comply with Community law, the Commission should work in accordance with principles of good administration, and act with due diligence. This implies that the Commission, as the guardian of the Treaty, should actively seek that the concerned Member State puts an end to the alleged infringement, and duly informs the complainant of its actions.

In its replies to the Ombudsman, the Commission has claimed that its attitude has been very active in relation to the complaint during the seven years that have elapsed since the sending of the reasoned opinion. However, despite a request from the Ombudsman, it has failed to provide clear, precise and transparent information to support this claim and thereby demonstrate that it has acted with due diligence throughout this long period of time.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.
Yours sincerely
Jacob SÖDERMAN
cc:
Mr Santer, President of the Commission

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(1) Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services; OJ NO. L 233 , 24.08.1978, p.1.

(2) Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners; OJ NO. L 233 , 24.08.1978, p.10

(3) See recently, Case T-182/97, Order of the Court of First Instance (Second Chamber) of 16 February 1998. Smanor SA, Hubert Ségaud and Monique Ségaud v Commission of the European Communities. (Not yet reported)

(4) Case T-124/96. Judgment of 6 February 1998 Interporc Im- und Export GmbH v Commission, [1998] ECR II-0231, par. 28-29.

(5) Case T-105/95, WWF UK v. Commission [1997] ECR II-313, par. 63.