Mr José Manuel Barroso
President
European Commission
1049 Brussels
BELGIQUE

Strasbourg, 22 January 2010 

Re: OI/3/2009/MHZ

Dear Mr President,

Allow me, to begin with, to communicate to you my sincere appreciation for the constructive nature of the ongoing dialogue I have maintained with the Commission concerning the registration and management of all, and not just environmental, complaints and infringement files.

The present own-initiative inquiry was launched in the framework of the above dialogue.

On 23 September 2009, the Commission submitted an opinion in response to the Ombudsman's inquiry.

In that opinion, the Commission announced, and subsequently confirmed in its further letter, dated 6 November 2009, that, as from 28 September 2009, it would register separately enquiries and complaints concerning the application of Community law.

I note with approval that the Commission decided to introduce changes in its procedure for registering correspondence relating to infringements of Community law, in order to respond better to citizens' interests.

Having examined the Commission's opinion and before I decide on the next step, I would like, however, to share with the Commission my concerns about one specific aspect of its explanation on the registration of correspondence relating to infringements involving the handling of requests for access to environmental information. 

In its explanation, the Commission stated that, if the relevant national redress mechanisms have not yet been complied with, it will not register as a complaint correspondence relating to infringements involving requests for access to environmental information.

According to the Commission, this approach does not constitute a new exception, but is rather covered by the existing exception contained in its Communication to the European Parliament and the European Ombudsman on relations with the complainants in respect of infringements of Community law ('the 2002 Communication') [1] concerning a "failure to set a grievance".

In this respect, I wish first to point out that if, after having registered the correspondence as a complaint, the Commission indeed concludes that its involvement is not appropriate, it has different options on how to deal with the complaint. One of them, as the Commission has rightly pointed out, is to use the PILOT programme. The latter should presumably prove reasonably useful if the number of complaints exceeds the Commission's administrative capacity to process them.

Second, it is not arguable that national courts are the first guardians of Community law and that any alleged infringements may even be more efficiently decided through national means of redress than at the Community level.

Consequently, in my recent decision on an individual complaint, I supported the Commission's practice to wait for the outcome of an ongoing relevant national judicial review before deciding how to deal with an already registered complaint covered by that review[2].

I would like, however, to emphasise that there is a difference between: (a) a decision to postpone the administrative handling of an infringement complaint until such time as the national court or competent national body ends its procedure and decides on the same issue; and (b) a decision that a complaint should not be accepted as such, if the court or competent national body has not already been approached and given the opportunity to decide on the same issue. 

As regards (b), it is worth recalling the clear statement of the ECJ in its classic Judgement in Van Gend en Loos[3] that "the fact that the Treaty places at the disposal of the Commission ways of ensuring that obligations imposed upon [the Member States] to the Treaty are observed, [does not] preclude the possibility, in actions between individuals before a national court, of pleading infringements of these obligations."

In the same Judgment, the Court also held that "the vigilance of individuals concerned to protect their rights [before national courts] amounts to an effective supervision in addition to the supervision entrusted by [the then] Articles 169 and 170 to the diligence of the Commission and of the Member State" (emphasis added). In its subsequent Judgment in Molkerei-Zentrale, the ECJ added that "proceedings [at national level] are intended to protect individual rights in a specific case, whilst intervention by the Community authorities has as its object the general and uniform observance of Community law."[4]

In light of the above, I am not convinced of the Commission's view that correspondence relating to an infringement should not be registered as a complaint if the national court or other body has not yet reviewed the same issue and the relevant legislation provides for redress at national level in this regard.

Moreover, in my view, none of the six existing exceptions referred to in the first paragraph of point 3 ('Recording of complaints') of the 2002 Communication, as it stands now, applies to a situation in which the national means of redress have not yet been exhausted at the moment the correspondence relating to the relevant infringement is submitted.

It is hard to agree with the Commission's interpretation that such a situation is covered by the exception that correspondence is not to be investigated as a complaint and shall, therefore, not be recorded in the central registry of complaints, if it fails to set out a grievance. Reasonably, if the examination of a specific communication or set of correspondence allows for the conclusion that the issues to which it refers are, or may be, the subject of national judicial or administrative review, it cannot be stated that the grievance was not set out. Such an interpretation of the exception "it fails to set out a grievance" would be thus broad. In this context, I recall again and per analogiam that, according to the case-law of the Community courts, exceptions and derogations need to be interpreted narrowly (singularia non sunt extenda)[5].  The ECJ specifically held that derogations must be interpreted in a way so that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected[6].

By issuing the 2002 Communication, and by adopting its "new" approach as from 28 September 2009, the Commission wished, fairly, better to protect the interests of EU citizens. For that reason, in the Ombudsman's understanding, the Commission's basic rule is that all correspondence relating to infringements should be registered as a complaint.  I consider, however, that the broad interpretation of the existing exception concerning "failure to set out a grievance", as applied by the Commission, does not serve such a purpose.

In light of the above, I would be grateful if the Commission could explain, by 28 February 2010, whether it may agree to change its above interpretation of the existing exception of the 2002 Communication concerning "failure to set out a grievance", according to which citizens' correspondence relating to infringements concerning access to environmental information, which has not yet been submitted to a national judicial/administrative review, cannot be registered as a complaint because it fails to set out a grievance.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

[1] OJ 2002 C 244, p.5.

[2] Case 822/2009/BU, paragraph 34 (www.ombudsman.europa.eu).

[3] Case 26/62 Van Gend en Loos [1963] ECR 3.

[4] Case C-28/67 Molkerei-Zentrale Westfalen [1968] ECR 143, paragraph 154.

[5] Case C-465/04 Hoyvem [2006] I-2879, paragraph 24; Joined cases C-397/01 Pfeiffer [2004] I-8835, paragraph 52, Case C-303/98 Simap [2000] I-7963, paragraphs 34 and 35.

[6] Case 151/02 Landeshaupstadt Kiel [2003] I-8389, paragraph 89.