Background to the complaint

1. In October 2015, the complainant submitted an infringement complaint to the European Commission against Spain for its national rules on State liability for breach of EU law.

2. In June 2017, the Commission opened an infringement procedure against Spain.

3. On 26 January 2018, the Commission decided to send to the Spanish authorities a request to comply with EU law (a so-called ‘reasoned opinion’^[1]). The Commission found that the Spanish legislation rendered State liability for a breach of EU law excessively difficult, which had a negative impact on its effectiveness.^[2] It invited the Spanish authorities to adopt all necessary measures to comply with its opinion within two months. Spain replied on 26 March and 21 December 2018.

4. Between January 2018 and September 2019, the complainant wrote to the Commission several times asking when the Commission would bring Spain before the European Court of Justice. The Commission replied that it would inform him of the next procedural step. Dissatisfied with the Commission’s lack of action, the complainant turned to the Ombudsman on 26 September 2019.

The inquiry

5. The Ombudsman opened an inquiry into the way the Commission had handled this infringement procedure.

Arguments presented to the Ombudsman

6. The complainant considered that by not taking Spain to the Court of Justice, almost a year and a half after the expiry of the deadline given to Spain to comply with its reasoned opinion, the Commission had breached the principles of good administration.

7. On 27 November 2019, the Commission informed the Ombudsman that it had referred Spain to the European Court of Justice.^[3]

The Ombudsman's assessment

8. The Commission is responsible for overseeing the effective application, implementation and enforcement of EU law by the Member States^[4]. If a Member State fails to fulfil an obligation under the EU Treaties, the Commission can take measures (infringement procedures) to bring this infringement to an end. However, the Commission enjoys wide discretionary powers in deciding whether and when to bring a case against a Member State to the Court of Justice.^[5]

9. In this case, the Commission has now referred the case to the European Court of Justice as it was the complainant’s wish. During the procedure, the Commission kept the complainant informed of all steps taken in relation to his complaint in line with its rules and procedures. ^[6]

10. For these reasons, the Ombudsman considers that no further inquiries are justified in this case.

Conclusion

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

No further inquiries are justified in this case.

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

 

Peter Dyrberg

Administrator advising the Secretary General on inquiry matters

Strasbourg, 14/04/2020

 

[1] For more information on the stages of an infringement procedure see: https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en

[2] https://europa.eu/rapid/press-release_MEMO-18-349_en.htm

[3] https://ec.europa.eu/commission/presscorner/detail/en/ip_19_6299.

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

[5] See judgment of the Court of Justice of 16 May 1991, Commission v Netherlands, C-96/89, ECLI:EU:C:1991:213, paragraphs 15-16, and judgment of the Court of Justice of 26 June 2001, Commission v Portugal, C-70/99, ECLI:EU:C:2001:355, paragraph 17.

[6] Point 7 of Annex to communication from the Commission, EU law: better results through better application available at: https://ec.europa.eu/info/publications/communication-commission-eu-law-better-results-through-better-application_en.