Dear Mr N.,

On 7 January 2002, you made a complaint to the European Ombudsman concerning an infringement complaint that you submitted to the Commission in 1995.

On 29 January 2002, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 27 May 2002.

By letter dated 7 June 2002, you clarified your second claim in your complaint. I forwarded your letter to the European Commission on 5 July 2002, requesting it to submit a second opinion. The Commission sent its second opinion on 2 September 2002. I forwarded the Commissions opinions to you on 28 September 2002 with an invitation to make observations, which you sent on 12 November 2002.

To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.

The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

THE COMPLAINT

The complaint was submitted in January 2002. It related to an infringement complaint submitted to the European Commission, concerning possible breaches of Community law by Denmark in respect of taxing of ECU bonds.

The complainant had previously complained to the European Ombudsman concerning his infringement complaint (complaint 1307/98). In its response, the Commission informed the complainant that it would take steps to deal with his infringement complaint, and keep him informed.

The complainant states that he thereafter received no information from the Commission. He therefore made written requests for information in March 2000 and January 2002. He received no reply.

The complainant alleges that the Commission has failed to respond to his infringement complaint.

He claims:

1. To know the state of his infringement complaint.

2. Copies of the all the correspondence between the Commission and the Danish authorities relating to his infringement complaint.

The complainant's second claim was initially interpreted by the Ombudsman to be a request for copies of the correspondence between himself and the Commission. By letter dated 7 June 2002, the complainant informed the Ombudsman that the claim that he intended to make was the claim stated above. The Ombudsman informed the Commission about this, and asked the Commission to respond to it in its opinion.

THE INQUIRY

The Commission's opinion

The Commission produced, in summary, the following opinion.

As for the treatment of the complainant's infringement complaint, the complainant wrote to the Commission in 1995 alleging discriminatory treatment of his ECU bonds.

However, no reply was sent to the complainant. As a result, he complained to the European Ombudsman [ (complaint no. 1307/98 referred to above) ].

The inter-service contacts led to the conclusion that the problem raised by the complainant did not constitute an infringement of Community law, and it was not, therefore, dealt with under the infringement procedure. The case was not pursued further, but the complainant was unfortunately not informed about this.

The complainant sent two reminder letters on 5 March 2000 and on 7 January 2002, which were not replied to immediately either. They were treated as non-priority due to the considerable workload of the 'service chef de file'.

Finally, the official in charge telephoned the complainant on 7 March 2002. In addition to renewed apologies, the complainant was given a substantive reply to his infringement complaint.

The Commission recognises that by not registering the letter of the complainant as a formal complaint and advising him that there were insufficient grounds for pursuing it, its services failed to handle this matter in accordance with the Commission's previous commitments to the European Ombudsman.

The Commission wishes to point out that on 20 March 2002 it adopted a communication to the European Parliament and the European Ombudsman on relations with complainants in respect of infringements of Community law (COM(2002)141)(1) , in accordance with the commitments expressed in its reply of 15 May 2001 to the critical remarks formulated by the Ombudsman in his decision on complaint 995/98(2).

The Commission services have now registered the original letter from the complainant as a formal infringement complaint (n° 2002/4553), which will be duly re-examined and submitted, according to the general procedure for infringements, to the Commission in the coming weeks. By letter dated 6 September 2002, the Commission's services informed the complainant that the Commission intended to close its inquiries into his infringement complaint.

As for the complainant's second claim, the Commission informed the complainant that before it could send the requested correspondence to him, the Commission needed the agreement of the Danish authorities. The Danish agreement was received on 3 June 2002. The Commission therefore sent the complainant a copy of a letter from the Danish Ministry for Taxation which had been sent to the Commission in the course of the Commission's inquiry into the infringement complaint. The copy of this letter was sent to the complainant with some delay, on 24 September 2002, due to an internal misunderstanding. In its letter to the complainant, the Commission apologised to the complainant for this delay.

The Commission feels that the complainant has now received the information that he requested.

The complainant's observations

The Commission's opinion was forwarded to the complainant, who, in summary, submitted the following observations.

The complainant stated that he still wanted the full correspondence between the Commission and the Danish authorities. He received the letter from the Danish Ministry for Taxation to the Commission. However, he also wanted the preceding correspondence.

The complainant indicated in his observations that he did not intend to pursue the substance of the his infringement complaint further.

THE DECISION

1 Response to the infringement complaint

1.1 The complainant alleges that the Commission has failed to respond to his infringement complaint.

1.2 The Commission has admitted that it failed to deal properly with the infringement complaint for more than six years. It has apologised for this, and stated that the infringement complaint was formally registered and dealt with under the Commission's new improved rules for the handling of such complaints(3).

1.3 In his observations, the complainant indicated that he did not intend to pursue the infringement complaint further.

1.4 In these circumstances, it appears that the Commission has taken adequate steps to settle this part of the case. The Ombudsman therefore closes the case.

2 Claim for copies of correspondence

2.1 The complainant claims copies of all the correspondence between the Commission and the Danish authorities relating to his infringement complaint.

2.2 The Commission has stated that it replied to the complainant's request on 24 September 2002, enclosing a copy of a letter from the Danish Ministry for Taxation. The Commission feels that the complainant has now received the information that he requested.

2.3 In his observations, the complainant states that he is not satisfied with the Commission's response. He wishes copies of the full correspondence between the Commission and the Danish authorities. He considers that there should be other specific documents in the correspondence between the Commission and the Danish authorities.

2.4 The relevant question in this case is whether the Commission responded adequately to the complainant's request for copies of correspondence.

The Ombudsman considers that the Commission appears to have made genuine efforts to provide the complainant with information in the framework of the infringement procedure under Article 226 EC, in response to its understanding of the complainant's request. In these circumstances, the Ombudsman considers that his inquiry has revealed no maladministration by the Commission.

The Ombudsman points out that Regulation 1049/2001 provides the legal framework for the right of public access to documents held by the Commission. If the complainant considers that the Commission has refused him access to documents to which he is entitled to have access under Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(4), he has the opportunity to make a new complaint to the European Ombudsman.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to be no maladministration by the European Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN

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(1) OJ C 244 10.10.2002, p. 5. Available on EUR-Lex via:
http://eur-lex.europa.eu/pri/en/oj/dat/2002/c_244/c_24420021010en00050008.pdf

(2) The European Ombudsman's Annual Report for 2001, p. 116. The decision is also available on the Ombudsman's homepage on:
http://www.europarl.ep.ec/ombudsman/decision/en/980995.htm

(3) OJ C 244 10.10.2002, p. 5, on EUR-Lex via:
http://eur-lex.europa.eu/pri/en/oj/dat/2002/c_244/c_24420021010en00050008.pdf

(4) OJ L 145 31.5.2001, p. 43.