Strasbourg, 27 April 2004

Dear Mr F.,

On 16 December 2002, you made a complaint to the European Ombudsman concerning the Commission's handling of two complaints you had made as regards state aids granted by the Portuguese Government to the Portuguese food packaging company COFACO.

On 24 January 2003, the complaint was forwarded to the President of the European Commission. The Commission sent its opinion on 8 May 2003 and I forwarded it to you with an invitation to make observations by 30 June at the latest. No observations have been received from you within this deadline.

In order to pursue my inquiries, I considered that it was necessary to conduct further inquiries. On 8 July 2003, I therefore wrote to the Commission. On 27 August 2003, you sent your observations on the Commission's opinion. On 30 September 2003, I received the Commission's reply to my letter of 8 July 2003. I forwarded it to you with an invitation to make observations which I received on 11 November 2003. On 24 November 2003, I wrote a further letter to the Commission and I asked it to comment on your observations by the end of December 2003. I received the Commission's reply on 15 January 2004 which I forwarded it to you on 19 January 2004 with an invitation to make observations, if you so wished. On 1 April 2004, I received your observations.

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

THE COMPLAINT

According to the complainant, the relevant facts of his complaint are as follows:

On 17 April 2000, he made a complaint to the European Commission, DG Competition, concerning a state aid of about 5 million euros granted by the Portuguese Government to a Portuguese food packaging company, COFACO. This company imports and transforms tuna fish in the Azores islands and exports most of its products to Italy.

DG Competition transferred the complainant's letter to DG Fisheries to be dealt with. On 30 January 2001, DG Fisheries informed the complainant that it had asked the Portuguese authorities for clarifications on the issues raised by him. In the same letter, the complainant was asked to inform the Commission whether his letter of 17 April 2000 had been written in his own name or on behalf of a company.

On 12 March 2001, the complainant replied by registered mail. He stated that the letter in question had been written in his own name. On 4 April 2001, DG Fisheries sent an acknowledgement of receipt of the complainant's reply.

On 15 February 2002, since he had received no further information as regards his complaint, the complainant wrote a further letter to DG Fisheries, which replied on 19 April 2002. DG Fisheries acknowledged receipt of the complainant's letter of 15 February 2002 and stated that it had never received a reply from the complainant to the letter of 30 January 2001. On 15 May 2002, the complainant replied to DG Fisheries and expressed his surprise at the Commission's allegation that he had not replied to the letter of 30 January 2001, since his reply had been sent by registered mail and acknowledged by the Commission on 4 April 2001.

On 22 May 2002, the complainant made a new complaint to DG Fisheries, concerning another state aid granted by the Portuguese Government to a Portuguese packaging company. However, no reply was given to him by the Commission's services.

In his complaint to the Ombudsman, the complainant alleged that: (i) the Commission failed to deal properly with his complaint lodged on 17 April 2000; (ii) the Commission failed to acknowledge receipt of his complaint made on 22 May 2002.

THE INQUIRY

The European Commission's opinion

In its opinion on the complaint, the Commission regretted that neither DG Competition nor DG Fisheries to whom the letter had been transferred had acknowledged receipt of the complainant's complaint of 17 April 2000 until 30 January 2001. The Commission apologised for this omission.

As regards the complaint of 17 April 2000, the Commission explained that on 17 May 2000, its services had contacted the Portuguese authorities and asked for clarifications on the issue raised by the complainant. The Portuguese authorities had replied on 23 January 2001. On 25 January 2001, a dossier concerning state aids had been opened and registered at the Secretariat General under reference N° 11/2001. In July 2001, the Commission had requested further information from the Portuguese authorities.

As regards the complaint of 22 May 2002, the Commission had opened a dossier on 18 September 2002 under reference N° 609/2002. On 11 November 2002, the institution had requested information from the Portuguese authorities. However, no reply had been given by the Portuguese authorities in both cases.

The Commission apologised for its omission to acknowledge receipt of the complainant's letter of 22 May 2002 and stressed that it would make every effort to guarantee a high quality service in its relations with the public, in accordance with principles of good administration.

The complainant's observations

In his observations of 27 August 2003, the complainant took the view that the Commission should have started an infringement procedure against Portugal, on the basis of the lack of cooperation by the Portuguese national authorities.

Further inquiries

After careful consideration of the Commission's opinion, it appeared that further inquiries were necessary. On 8 July 2003, the Ombudsman therefore wrote to the Commission. In his letter he asked the institution: (i) to inform him whether in the meantime the institution had received a reply from the Portuguese authorities to its requests for information of July 2001 and November 2002; (ii) to explain what action the Commission had taken or intended to take in order to obtain the requested information, in case the Portuguese authorities had still not provided it.

In its reply, the Commission stated that:

As regards dossier N° 11/2001, on 16 July 2003, it had been informed by the Portuguese authorities that the Portuguese press had recently published information about a possible sale by the regional government of the Azores of its participation in the COFECO company. The Portuguese authorities would follow the development on this matter and they would inform the Commission in due time.

As regards dossier N° 609/2002, the Portuguese authorities had forwarded further information to the Commission on 18 June 2003. On the basis of this information, the Commission considered it necessary to request additional information from the Portuguese authorities on 18 July 2003.

In order to pursue his inquiry, the Ombudsman considered that further inquiries were necessary. On 24 November 2003, he therefore wrote to the Commission. In his letter, he asked the institution (i) to explain in the light of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, and in particular Article 10(2) and 10(3) thereof, which measures it has taken to obtain the information it requested from the Portuguese authorities and (ii) to comment on the further allegation made by the complainant in his observations that the institution should have started an infringement procedure against Portugal, on the basis of the lack of cooperation by the Portuguese national authorities.

In its reply, the Commission stated that it was pursuing the examination of dossier N° 11/2001 on the basis of the last information transmitted by the Portuguese authorities in July 2003. The Commission would also request further information from the Portuguese authorities shortly. As regards dossier N° 609/2002, the Commission put forward that it requested further information from the Portuguese authorities on 18 July 2003.

Furthermore, the institution pointed out that both dossiers are being dealt with following the procedures applicable for cases concerning state aids, in accordance with Article 88 of the EC Treaty and Regulations n° 659/1999. Consequently, the point raised by the complainant concerning the opportunity to start a procedure under Article 226 of the EC Treaty against Portugal is not relevant.

The institution finally stressed that it would keep the Ombudsman informed about the outcome of its inquiries.

In his observations received on 1 April 2004, the complainant stated that the Commission's services were taking actions as regards his complaint. He took the view that this was a consequence of the Ombudsman's intervention and of the efficiency of his action. The complainant considered that at this stage, he did not have other comments to make. However, he considered that the Ombudsman should not close the case until the conclusion of the Commission's inquiries.

THE DECISION

1 The Commission's handling of the complainant's complaint of 17 April 2000

1.1 The complainant alleges that the Commission failed to deal properly with his complaint lodged on 17 April 2000.

1.2 In its first opinion, the Commission states that on 17 May 2000, its services contacted the Portuguese authorities and asked for clarifications on the issues raised by the complainant. On the basis of the reply given by the Portuguese authorities, in January 2001 the institution opened a dossier concerning state aids which was registered at the Secretariat General under reference N° 11/2001. In July 2001, the Commission asked for further information from the Portuguese authorities. However, no reply was given by the latter.

1.3 In its reply to the Ombudsman's letter of 8 July 2003, the Commission explains that it has been informed by the Portuguese authorities that the Portuguese press has recently published information about a possible sale by the regional government of Azores of its participation in the COFECO company. The Portuguese authorities would follow the development on this matter and inform the Commission in due time.

1.4 On 24 November 2003, the Ombudsman wrote a further letter to the Commission in which he asked the institution to explain, in the light of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, and in particular Article 10(2) and 10(3) thereof, which measures it had taken to obtain the information it requested from the Portuguese authorities.

In its reply, the Commission stated that it was pursuing the examination of dossier N° 11/2001 on the basis of the last information transmitted by the Portuguese authorities in July 2003. The Commission would also request further information from the Portuguese authorities shortly.

1.5 In his observations, the complainant stated that the Commission's services are now taking action as regards his complaint and that at this stage, he does not have other comments to make. He takes the view, however, that the Ombudsman should not close the case until the conclusion of the Commission's inquiries.

1.6 Principles of good administrative behaviour require that the Commission's services pursue their inquiries diligently and without undue delay. In the present case, the Commission asked the Portuguese authorities for information in June 2001. The Commission has not submitted, despite a specific question to that effect by the Ombudsman, any convincing explanation as to why during almost two years it has taken no action with regard to the Portuguese authorities' failure to provide this information.

This constitutes an instance of maladministration. The Ombudsman therefore makes a critical remark below.

2 The Commission's failure to reply

2.1 The complainant alleges that the Commission failed to acknowledge receipt of his complaint made on 22 May 2002.

2.2 In its opinion, the Commission apologised for its omission and explained that a dossier has been opened on 18 September 2002 under reference N° 609/2002.

The Commission also stressed that it will make every effort to guarantee a high quality service in its relations with the public, in accordance with principles of good administration.

2.3 In accordance with the Commission's Code of good Administrative Behaviour(1), a reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt of the letter from the responsible Commission department. In the present case, the Commission failed to act in accordance with its own rules. The Ombudsman notes, however, that the institution has recognised its failure and apologised for it.

2.4 In these circumstances, the Ombudsman does not consider it necessary to inquire further into this aspect of the case.

3 The complainant's new allegation that the Commission should have started an infringement procedure against Portugal

3.1 In his observations on the Commission's opinion of 8 May 2003, the complainant took the view that the Commission should have started an infringement procedure against Portugal because of the lack of cooperation by the Portuguese national authorities.

In view of the fact that this was a new allegation made by the complainant, the Ombudsman asked the Commission to comment on this point in his letter of 8 July 2003.

3.2 In its reply, the Commission stated that both the relevant dossiers in this case, dossier N° 11/2001 and dossier N° 609/2002 were being dealt with following the procedures applicable for cases concerning state aids, in accordance with Article 88 of the EC Treaty and Regulation n° 659/1999. Consequently, the point raised by the complainant in his observations concerning the fact the Commission should have started an infringement procedure under Article 226 of the EC Treaty against Portugal was not relevant.

3.3 The Ombudsman considers the above explanations given by the Commission to be reasonable.

3.4 The Ombudsman therefore finds that there is no evidence of maladministration in relation to this aspect of the case. As regards the Commission's failure to procure the information it had requested from the Portuguese authorities, this issue has been dealt with in point 1 of the present decision.

4 Conclusion

Article 3 (5) of the Statute of the Ombudsman directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant. In the present case, although the Ombudsman finds a instance of maladministration by the Commission, he also notes that the complainant has informed him that Commission is now taking action concerning his complaint. In view of this, the Ombudsman takes the view that it would not be appropriate to seek a friendly solution in this case. However, this decision does not prevent the complainant from lodging a new complaint with the Ombudsman if he should be dissatisfied with the outcome of the Commission's inquiry.

On the basis of his inquiries into this complaint, the Ombudsman considers it necessary to make the following critical remark:

Principles of good administrative behaviour require that the Commission's services pursue their inquiries diligently and without undue delay. In the present case, the Commission asked the Portuguese authorities for information in June 2001. The Commission has not submitted, despite a specific question to that effect by the Ombudsman, any convincing explanation as to why during almost two years it has taken no action against the Portuguese authorities' failure to provide this information.

As regards the complainant's allegation dealt with in point 2 of this decision, no further inquiries appear to be necessary. As regards the complainant's allegation dealt with in point 3 of this decision, there appears to have been no maladministration by the European Commission.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) OJ L 308 of 8 December 2000, pp. 26-34.