Background to the complaint

1. The complainant made a complaint to the European Commission against Italy. He alleged that the organisation of health services in ‘Regione Puglia’ and the regional law of ‘Regione Basilicata’ on health workers^[1] did not comply with the EU Working Time Directive^[2]. The complaint was given registration number CHAP(2015)03630.

2. In July 2016, the Commission informed the complainant that it would investigate his concerns about the law of ‘Regione Basilicata’. It would do so in the context of a general EU Pilot dialogue regarding the laws and practices in the health sector in Italy^[3]. However, it would not deal with the issues the complainant raised about the health services in Puglia because this part of the complaint did not indicate any failure to comply with the Working Time Directive.

3. In December 2016, the Commission informed the complainant that it would suspend the investigation because a case about the conformity of the regional law of ‘Regione Basilicata’ with the Italian Constitution was pending before the Italian Constitutional Court. The Italian Constitutional Court declared the regional law of ‘Regione Basilicata’ unconstitutional in April 2017.^[4] In February 2018, the Commission informed the complainant of its intention to close its EU Pilot case.

4.  Meanwhile, in August 2016, the complainant had informed the Commission that ‘Regione Basilicata’ had enacted a new law^[5] that was still in violation of the Working Time Directive. The Commission registered this letter as a new complaint with registration number CHAP(2016)02713. In February 2017 and in May 2018, the Commission informed the complainant that it was still investigating the complaint.

5. Dissatisfied with the way the Commission handled the two complaints, the complainant turned to the Ombudsman in June 2018.

The inquiry

6. The complaint was that the Commission:

a) took too long to investigate the complaints;

b) failed to inform the complainant about the outcome of the investigation of complaint CHAP(2016)02713; and

c) failed to investigate how the Working Time Directive is applied in the whole of Italy.

7. In the course of the inquiry, the Ombudsman received the reply of the Commission and further information from the complainant.

Arguments presented to the Ombudsman

8. The complainant referred to a recent resolution by the European Parliament in which it criticised the Commission for its delays in handling this issue. Parliament stated that “the Commission accumulated long delays in handling infringement proceedings concerning the breach of EU labour legislation by some Member States, allowing the abusive use of fixed-term contracts and violations of workers’ rights to go on for years”^[6].

9. Regarding complaint CHAP(2015)03630, the Commission stated that it had received another complaint on how Italy applied the Working Time Directive in relation to staff in the Italian National Health Service, after Italy had changed its legislation following a previous infringement case^[7]. After the Italian Constitutional Court declared the regional law of ‘Regione Basilicata’ unconstitutional in April 2017^[8], the Commission decided to continue its investigation for the rest of Italy. In February 2018, the Commission informed the complainant that it had not found any compliance problems with EU law in the health care sector and that it therefore intended to close the EU Pilot case. However, the Commission had not yet closed the case because it was assessing the application of the Working Time Directive in Italy beyond the healthcare sector and had not finalised its exchanges with the Italian authorities in that regard. Moreover, in 2018, Parliament received a petition^[9] concerning the implementation of the Working Time Directive in Italy, to which it had asked the Commission to reply.

10. Regarding complaint CHAP(2016)02713, the Commission stated that it was making a broader assessment of the issue following another complaint related to working time and a parliamentary question^[10] about night work. In parallel, the Commission had been checking the overall conformity of Italian legislation with the Working Time Directive to produce a report on the implementation of the Directive by the Member States. The report was adopted in April 2017. Based on the two complaints, the parliamentary question and the outcome of its own analysis, the Commission decided to contact the Italian authorities to ask for clarifications on several issues, including those raised in complaint CHAP(2016)02713. The investigation is ongoing.

The Ombudsman's assessment

11. The Commission is responsible for overseeing the effective application, implementation and enforcement of EU law by the Member States^[11]. If a Member State fails to fulfil an obligation under the EU Treaties, the Commission can take measures (infringement proceedings) to bring this infringement to an end. In this role, the Commission acts based on certain policy priorities, having decided on a strategic approach to its enforcement actions. The Commission enjoys a wide margin of discretion in deciding whether or not, and when, to start infringement proceedings against a Member State^[12], as well as in how to conduct its investigations.

12. The Commission has acknowledged that members of the public make an important contribution to the Commission’s monitoring of the Member States’ compliance with EU law by reporting shortcomings through infringement complaints^[13]. As a general rule, the Commission has committed itself to investigating infringement complaints with a view to arriving at a decision to issue a ‘formal notice’^[14] to the Member State concerned, or to close the case, within one year from the date of registration of the complaint^[15]. The Commission’s wide margin of discretion means that an individual making an infringement complaint cannot require or expect the Commission to deal with the complaint in a particular way. Nevertheless, if the Commission cannot take a decision to issue a formal notice or to close the case within one year, it should respect its own commitment to inform the complainant and, as a matter of good administration, explain why its assessment is taking additional time. If it fails to do so, complainants risk having to turn systematically to the Ombudsman to find out why.

13. In the course of the inquiry into this case, the Commission has given convincing reasons for the time it is taking to investigate the two complaints. It has in particular explained why it needs more time to investigate case CHAP(2016)02713. It would however have been useful if the Commission had given the complainant more detailed information about the investigation at an earlier stage. However, based on the information now provided, the first two aspects of the complaint have been settled.

14. Regarding the complainant’s concern that the Commission failed to investigate how the Working Time Directive is applied in the whole of Italy, it is clear from the information provided in the course of the Ombudsman’s inquiry that the Commission is investigating the matter. The Ombudsman thus finds no maladministration by the Commission regarding the third aspect of the complaint.

Conclusions

Based on the inquiry, the Ombudsman closes this case with the following conclusions:

The Commission has settled the information aspects of the case and the Ombudsman finds no maladministration by the Commission regarding the alleged failure to investigate the application of the Working Time Directive in the whole of Italy.

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

 

Emily O'Reilly

European Ombudsman

Strasbourg, 13/06/2019

 

[1] Legge Regionale 26 November 2015, n. 53,

[2] Directive 2003/88/CE of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time.

[3] In the context of case EU-Pilot 8414/16/EMPL. The EU Pilot is an informal dialogue between the Commission and the Member State concerned on issues related to potential non-compliance with EU law, which may take place prior to launching a formal infringement procedure.

[4] Judgement n. 72/2017 of the Italian Constitutional Court.

[5] Legge Regionale 4 agosto 2016, n. 17, Bollettino Ufficiale n. 30 del 4 agosto 2016.

[6] European Parliament resolution of 31 May 2018 on Responding to petitions on tackling precariousness and the abusive use of fixed term contracts (2018/2600(RSP)).  

[7] See infringement case 2011/4185 and order of the Court of 23 January 2015, C-124/14.

[8] Judgement n. 72/2017 of the Italian Constitutional Court.

[9] Petition 2018/0196

[10] See parliamentary question E-004965/2016.

[11] Article 17(1) Treaty on the European Union and Article 258 Treaty of the Functioning of the European Union.

[12] Judgment of the Court of Justice of 6 December 1989, Commission v Greece, C-329/88.

[13] Communication from the Commission, EU law: better results through better application, point 1, https://ec.europa.eu/info/publications/communication-commission-eu-law-better-results-through-better-application_en

[14] The infringement procedure starts with a letter of formal notice, by which the Commission allows the Member State to present its views regarding the breach observed.

[15] Point 8 of Annex to communication from the Commission, EU law: better results through better application.