The background to the complaint

1. The complaint concerns the length of time it took the European Commission to assess the Polish authorities' position in an infringement case.

2. The complainant became aware that the Commission launched an infringement procedure against Poland concerning obstacles to the registration of right-hand drive vehicles in Poland. According to Polish legislation, new and used right-hand drive vehicles cannot be registered in Poland.

3. The Commission considered that these registration restrictions constitute a disproportionate barrier to the importation of right-hand drive vehicles into Poland. As regards used vehicles, the obstacles to their registration breach Article 34 TFEU and, as far as new vehicles are concerned, these obstacles contravene Council Directive 70/311 EEC on the approximation of the laws of the Member States relating to the steering equipment for motor vehicles and their trailers[1] and Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles[2].

4. On 1 October 2010, the Commission sent a reasoned opinion to the Polish authorities asking them to bring their legislation in line with EU law. The Polish authorities replied to the Commission's reasoned opinion on 2 December 2010, that is, within the two-month deadline set by the Commission.

5. In June 2011, the complainant complained to the Commission by letter and e-mail about the Polish legislation at issue.

6. On 5 July 2011, the Commission informed him that it was assessing the Polish authorities' reply to the reasoned opinion, dated 2 December 2010. "before [it] could propose to refer the case to the Court of Justice." It also stated that it would keep the complainant informed of any development in the file. One week later, the complainant turned to the European Ombudsman.

7. On 15 July 2011, the Commission provided the complainant with a summary of the arguments submitted by the Polish authorities in support of the restrictions on registration. That same day, he replied to the Commission providing counter-arguments to the Polish authorities' position.

The subject matter of the inquiry

8. In his complaint, the complainant submitted one allegation and one claim. The Ombudsman opened an inquiry into the complainant's allegation but not into his claim, for the reasons set forth in the next paragraph. The complainant alleged that the Commission failed to assess within a reasonable time the Polish authorities' answer to the Commission's reasoned opinion concerning the infringement procedure in question.

9. As regards the complainant's claim that the Commission should immediately bring proceedings against Poland before the Court of Justice, the Ombudsman explained to the complainant that he could not deal with his claim for two reasons. First, until the Commission assesses a Member State's reply to a reasoned opinion, it is not in a position to decide whether or not to refer the matter to the Court of Justice. Second, in light of the relevant case-law, an individual cannot request the Commission to bring an action before the Court of Justice against a Member State[3].

10. After the Commission stated in its opinion that, on 28 September 2011, it had decided to bring an action on the infringement in question before the Court of Justice, the complainant resubmitted his original claim, with a few modifications. He claimed in substance that the Commission decided to delay bringing an action before the Court and that it should refrain from incurring further delays. He argued in this respect that the Registry of the Court of Justice informed him on 13 December 2011 that, up to then, no case against Poland regarding the registration of right-hand drive vehicles was pending before the Court.

11. The Ombudsman will not however include this modified claim in the inquiry. The Ombudsman cannot exclude that the Commission could advance sound reasons for not submitting the infringement case to the Court until 13 December 2011. However, the Ombudsman would have been able to assess such reasons in the framework of this inquiry only if the complainant had first approached the Commission in this respect[4]. The complainant did not do so and his claim is therefore inadmissible, due to a lack of prior administrative approaches to the Commission.

The inquiry

12. On 31 August 2011, the Ombudsman asked the Commission for its opinion on the complaint. On 25 November 2011, the Commission submitted its opinion which was forwarded to the complainant for observations. He submitted his observations on 5 December 2011 and completed them on 13 December 2011.

The Ombudsman's analysis and conclusions

Preliminary remarks

13. The Ombudsman notes that the complaint refers to the alleged failure of the Polish authorities to comply with EU legislation on the free movement of goods (Article 34 TFEU) and with Directives 70/311/EEC and 2007/46/EC[5]. In this respect, the Ombudsman recalls that, according to Article 228 TFEU, the European Ombudsman has the power to receive and examine complaints about maladministration in the activities of the EU institutions, bodies and agencies. No action by any other authority or person may therefore be the subject of a complaint to the Ombudsman.

14. It is thus not the task of the Ombudsman to examine the merits of EU or national legislation and whether the national authorities correctly applied national or European law. For the above reasons, in his inquiry into the present complaint, the Ombudsman will deal exclusively with the issue of possible maladministration on the part of the Commission.

15. The Ombudsman considers it useful, at this point, to recall his mandate, in view of the Commission's surprising statement in the opinion[6] that he should consider the complaint inadmissible because of its action before the Court. He hopes that it is now clear to the Commission that the Ombudsman's review concerns solely the Commission's conduct in the framework of the pre-litigation procedure, whilst the Court's review concerns the Member State's breach.

A. Allegation of unjustified length of time taken to assess the Polish authorities' reply to the reasoned opinion

Arguments presented to the Ombudsman

16. In his complaint, the complainant pointed out that, in July 2011, the Commission informed him that it was in the process of analysing the Polish authorities' reply to the reasoned opinion which had been sent to it seven months earlier, that is, in December 2010. He therefore argued that the period of seven months required by the Commission to deal with the Polish authorities' reply to the reasoned opinion was excessive.

17. In its opinion, the Commission first clarified the relevant facts. It stated that altogether it was dealing with 16 complaints concerning obstacles to the registration of right-hand drive vehicles in Poland. The first one, registered in August 2008, led to the opening of infringement proceeding 2008/4700. The complainant's complaint of June 2011 was the last of the 16 complaints. On 1 October 2010, in the framework of infringement proceeding 2008/4700, the Commission sent a reasoned opinion to the Polish authorities. Their reply was received on 2 December 2010. On 17 December 2010, the reply was translated and then internal consultations began.

18. In parallel, the Commisison was handling a similar case against Lithuania (bearing reference number 2009/4229). The Commission also sent a reasoned opinion to the Lithuanian authorities which replied on 19 January 2011. The Lithuanian authorities raised the same road safety arguments as the Polish authorities. In addition, they requested a meeting with the Commission to discuss the case. "For the sake of consistency and equal treatment of Member States", the Commission decided to "wait for the outcome of the meeting" in which the Lithuanian authorities were expected to propose or accept an alternative to the prohibition on registration. The meeting took place on 17 March 2011. The Commission suggested various options in an attempt to reach a balanced and proportionate solution but "no reply was received".

19. On 27 April 2011, the Commission's responsible service drafted a detailed note analysing all the arguments put forward by the Polish authorities. The draft note was then circulated for internal consultations to the associated services in order to "strengthen the arguments".

20. On 27 July 2011, the Commission's services agreed to the "proposed" referral to the Court of Justice of the European Union. On 28 September 2011, the Commission took the decision to refer the case to the Court.

21. Second, the Commission took the view that it would have been impossible to assess the Polish authorities' reply to the Commission's reasoned opinion in a more timely manner without compromising the quality of the assessment and thus undermining the result of the infringement proceedings. The complex legal issues raised by the case required extensive legal analysis. In addition, the issue was highly technical. There was also a need to ensure consistency in the approach adopted in relation to new vehicles (regarding which harmonised legislation exists) and previously registered vehicles (regarding which no harmonised legislation exists). Finally, the Commission needed to take into account in its analysis the wide margin of discretion which Member States have when establishing the level of road safety and the possibility for them to justify restrictions on registration.

22. Third, the Commission took the view that it made sure to inform the complainant in good time of the developments in the infringement procedure.

23. Finally, the Commission referred to the case-law of the Court which lays down that the rules of Article 258 TFEU must be applied "with no attendant obligation on the Commission to act within a specific period, save where the excessive duration of the pre-litigation procedure laid down by Article [258] is capable of making it more difficult for the Member State concerned to refute the Commission's arguments and of thus infringing the rights of defence"[7]. This was not the case. Moreover, it commented that "the time spent by the Commission during the pre-litigation procedure in question should allow the Member State concerned to put in order its legislation with that of the EU."

24. In his observations on the Commission's reply, the complainant argued that the Commission's justification was not clear. He wondered why a delay (albeit a small one) was incurred due to the need to translate the Polish authorities' reply when the Commission clearly has employees who understand Polish. The complainant also wondered why the Commission drafted the note containing its analysis of the Polish authorities' reply only on 27 April 2011. In the complainant's view, any delay caused to the Polish case because of the prospect of a solution in the Lithuanian case is unfair to the complainants in Poland. Even if the Lithuanian government used the same arguments as the Polish one, there was every reason to move forward with the legal analysis expeditiously in order to be prepared for the anticipated meeting of 17 March.

25. The complainant considered that, in the circumstances of the present infringement, the Commission's comment that the time it spends on the pre-litigation procedure should allow the Member State to align its national legislation with that of the EU to be "most alarming". He pointed out in this respect that the Polish authorities' reply was, in summary, that Poland would be ready to change its challenged law once its road infrastructure equalled that of Western Europe[8]. This could reasonably take "decades or generations". The Commission's comment could thus demonstrate that it did not read the Polish authorities' reply carefully or at least that it does not regard the Ombudsman's inquiry as an opportunity for genuine review.

26. The complainant expressed doubts as to whether the legal issues involved were complex enough to justify the several months it took the Commission to assess the Polish authorities' reply. He pointed out that the Commission needed all these months to assess a reply which the Polish government was only given two months to draft. Most of the arguments contained in the reply were well known to the Commission from its earlier contacts with the Polish authorities, when the Commission had already elaborated important counter-arguments. The infringement in question concerns an area of EU law with which the Commission's legal service is very familiar. Its ability to deal with problems in this area quickly should be far greater than that of any of the Member States or of any law firm.

27. Finally, the complainant wondered which ongoing "legal proceedings" the Commission referred to at the end of its opinion dated 25 November 2011 if, until the time he submitted his observations, that is, on 5 December 2011, the Commission had not brought any action concerning the infringement in question before the Court of Justice.

The Ombudsman's assessment

28. As rightly pointed out by the Commission, the Court of Justice did not refer to any time limits within which the Commission must act under Article 258 TFEU. Moreover, it has held on several occasions that proceedings under Article 258 TFEU are admissible even if the Commission takes a number of years to bring the case to court after having issued a reasoned opinion[9]. The Commission is therefore justified to state that it has a certain[10] discretion as to when it initiates legal proceedings in accordance with Article 258 TFEU. However, it cannot rely on its discretion in order to justify its administrative indisposition to act[11].

29. In the same context, there is no express or fixed time limit established by law within which the Commission must deal with the Member States' replies to the Commission's reasoned opinions at the administrative stage of infringement proceedings. The Commission's 2002 Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law[12] is silent in this respect. The Communication only establishes that "[a]s a general rule, Commission departments will investigate complaints with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint by the Secretariat-General".

30. Although the Commission thus has discretion to evaluate how much time it may need to assess the Member State's reply to its reasoned opinion and to decide on the next step, the exercise of this discretion is however subject to the principles of good administration. One of these principles, enshrined in the Charter of Fundamental Rights of the EU, is that the institutions, bodies and agencies of the EU should act within a reasonable time[13].

31. The Commission should thus finalise its assessment of the concerned Member State's reply to its reasoned opinion within a reasonable time, that is, as the Court defined it, a time span which is not manifestly unreasonable in the circumstances of the case[14].

32. Alternatively, the Commission could show (i) why, objectively, it needed more time for its assessment and how this assessment was carried out, or (ii) that it needed to take further action in order to clarify or complete its assessment, for instance, by raising further questions with the Member State concerned.

33. In sum, principles of good administration require the Commission to explain to citizens the reasons for the timing of its subsequent step in the pre-litigation stage of infringement proceedings. Although citizens are not and cannot be regarded as parties in infringement proceedings, even if the proceedings were initiated following their complaints to the Commission, the final outcome of the proceedings is of interest to the citizens who complained. This is also the case with regard to the time it takes the Commission effectively to bring an action before the Court of Justice. Indeed, if the Commission were to succeed in its action against the Member State, the relevant Court decision could be invoked by citizens before the competent national courts in order to have their own rights enforced. Therefore, any unjustified excessive delays in the Commission's actions leading to the proper transposition of EU law by the Member States can ultimately affect citizens' rights at the national level.

34. The Ombudsman points out that the administrative process of assessing a reply to a reasoned opinion, which implies internal consultations within the Commission, ends when the services make their proposal for the next step. In the present case, this took place on 27 July 2011, the date when the Commission's services agreed to the "proposed" referral to the Court of Justice of the EU. Given that the Commission received the Polish authorities' reply to the reasoned opinion in December 2010, it apparently needed more than seven months to assess it. In the Ombudsman's view, seven months for the analysis of the reply to the reasoned opinion in the circumstances of this case was not a reasonable time.

35. First, as the complainant rightly pointed out, based on previous contacts between itself and the Polish authorities, the Commission could have a rather clear idea of what to expect from the reply. Second, again as stated by the complainant, the Commission's legal service is very familiar with this area and it would therefore be reasonable to expect its analysis to be carried out rapidly and to be very convincing. Ultimately, from the summary of the Polish authorities' reply which the Commission kindly sent the complainant and which the latter forwarded to the Ombudsman, it results that the reply mainly contained arguments relating to security on Polish roads rather than legal arguments. The Commission has a long standing experience in dealing with Member States which justify the restrictions they impose on the fundamental freedoms guaranteed by the Treaty by invoking imperative reasons of public interest such as road traffic safety considerations[15].

36. The Ombudsman therefore does not see why the Commission could not have completed its assessment of the Polish authorities' reply (or, at least, a preliminary one) before the meeting with the Lithuanian authorities took place. The Ombudsman does however understand that there may have been a need to delay the final conclusions of the assessment of the Polish authorities' reply until its meeting with the Lithuanian authorities, which concerned the same type of infringement, had in fact taken place. As rightly pointed out by the Commission, it had to react consistently to the same kind of infringement in two Member States and it had to ensure equal treatment.

37. However, the Commission did not explain in its opinion why, after the meeting with the Lithuanian authorities of 18 March 2011, it still needed about four months to complete its assessment of the Polish authorities' reply[16]. In this respect, the Ombudsman points out that, according to the Commission, its internal consultations on that reply started as early as December 2010. If the Lithuanian authorities' arguments were in substance the same as those of the Polish authorities, it is not clear why the second round of internal consultations, apparently initiated following the meeting with the Lithuanian authorities, lasted from April to July 2011. The Commission did not mention that there were any contacts with the Polish authorities during this period of time.

38. Finally, the Ombudsman understands the complainant's feelings of alarm (mentioned in paragraph 25 above) at the Commission's statement that "the time spent by the Commission during the pre-litigation procedure in question should allow the Member State concerned to put in order its legislation with that of the EU." This statement could indeed be considered inappropriate taking into account the Polish authorities' categorical declaration that they would stop the infringement in question when the Polish road infrastructure "catches up with the level of other EU Member States", that is, in an undetermined time in the future. The Ombudsman trusts however that by that statement, the Commission rather meant to say that, throughout the pre-litigation procedure, the Member State concerned still has a chance to put an end to the breach and that during this time, the Commission is ready to help the Member State rectify its position.

39. In light of the foregoing, the Ombudsman considers that the Commission failed to justify in a clear and convincing manner why it needed seven months to assess the Polish authorities' reply. This was an instance of maladministration.

40. Since the inquiry did not include any claim, the Ombudsman does not consider it appropriate to ask the Commission for additional explanations. He therefore closes the case with a critical remark below.

C. Conclusions

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

The Commission failed to justify in a clear and convincing manner why it needed seven months to assess the Polish authorities' reply to its reasoned opinion.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 9 February 2012

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[1] OJ English special edition: Series I, Chapter 1970(II), p. 375.

[2] OJ 2007 L 263 p. 1.

[3] Cases C-371/89 Emrich v Commission [1990] ECR I-1555; C-87/89 Sonito v Commission [1990] ECR I-1981; T-201/96 Smanor and Others v Commission [1997] ECR II-1081; and T-196/08 Srinivasan v Ombudsman, order of 3 November 2008, not published in the Official Journal, paragraph 16.

[4] Article 2(4) of the European Ombudsman's Statute requires that a complaint "be preceded by the appropriate administrative approaches to the institutions and bodies concerned".

[5] See footnotes 1 and 2 supra.

[6] The Commission concluded its opinion by stating that "[i]n any circumstance, and given the fact that the alleged facts are subject to legal proceedings, the Commission considers that the Ombudsman should consider the complaint as inadmissible."

[7] Cases C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraphs 15 and 16 and C-207/97 Commission v Belgium [1999] ECR I-275, paragraph 25.

[8] The complainant provided, together with his observations, a copy of the summary of the Polish authorities' reply which the Commission sent him. The third paragraph of that reply, entitled "Specificity of the Polish infrastructure", contains the following statements: "According to the Polish authorities, type and condition of road networks have a significant impact on road traffic safety. … Multi-lane roads, highways in particular are undoubtedly the safest ones. On roads like these performing many manoeuvres with vehicles not adapted to right-hand traffic … does not pose such a big threat. However, … single carriageways are predominant in Poland. … transit and local traffic is not separated. At present in Poland highways account for only ca. 0,2% of all public roads. … Polish authorities assure that in the future when welfare of the Polish society catches up with the level of other EU Member States and thus the amount of imported used vehicles reduces significantly and is not of mass nature anymore, and moreover when the condition of road infrastructure provides high safety level as a result of its development and modernisation, they will be ready to abolish the said restrictions pertaining to registration of vehicles adapted to left-hand traffic."

[9] Cases C-317/92 Commission v Germany [1994] ECR I-2039 paragraphs 2 and 4 and C-333/99 Commission v France [2001] ECR I-1025.

[10] Opinion of Advocate General Alber in case C-358/97 Commission v Ireland [2000] ECR I-6301, para 83: "Since, under [Article 258 TFEU] the Commission is bound to bring proceedings in respect of every failure to fulfil Treaty obligations of which it becomes aware, it has a fundamental duty to bring proceedings. However, it has a certain discretion, particularly as regards the time and manner of implementing the various stages of the procedure under Article [258 TFEU] … There is no general upper time-limit for bringing an action before the Court of Justice. It is therefore for the Commission to judge, on expiry of the time-limit set, when to bring an action in the wake of the reasoned opinion …"

[11] In the above-mentioned opinion, the last sentence of paragraph 83 reads: "However, in extreme cases, where the Commission waits a long time before bringing an action and takes no other steps against the Member State, the possible objection that the right of action has been forfeited and the admissibility of the action thereby affected cannot be ruled out entirely. Nevertheless, the case-law of the Court tends to reject the idea that the Commission's right of action can be forfeited" (emphasis added).

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

[13] Article 41 of the Charter, entitled "Right to good administration" provides as follows: "1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union…"

[14] Case T-394/03 Angeletti v Commission [2006] ECR-SC I-A-2-95 and II-A-2-441, paragraph 61.

[15] See, for instance, Case C-246/00 Commission v Netherlands [2003] ECR I-7485.

[16] In its e-mail to the complainant, dated 5 July 2011, the Commission indeed informed him that it was "still assessing" the Polish authorities' reply.