Background to the complaint

1. In 2013, after receiving a significant number of infringement complaints concerning the alleged abuse of fixed-term employment contracts in the Spanish public sector, the European Commission decided to apply the ‘multiple complaints procedure’[1] and to register the complaints under a single reference (CHAP(2013)01917), and subsequently launched an infringement procedure.

2. The complainant is an association dealing with the employment conditions of civil servants in Spain. On 5 July 2021, the complainant submitted an infringement complaint (‘the initial complaint’) to the Commission, arguing that Spain was in breach of the principle of non-discrimination of fixed-term workers and that it did not prevent the abuse arising from the use of successive fixed-term employment contracts in the Spanish public sector.[2] The complainant asked the Commission to include its initial complaint in the multiple complaint CHAP(2013)01917.

3. On 4 August 2021, the Commission replied, informing the complainant that it could not find any evidence that would demonstrate that Spain was in breach of the principle of non-discrimination of fixed-term workers. The Commission stated that it had received in the past a large number of complaints concerning the use of successive fixed-term contracts, which had been registered under a single reference CHAP(2013)01917. In addition, the Commission provided the complainant with a link to its dedicated webpage on the multiple complaint, so that the complainant could follow the steps taken by the Commission.[3]

4. On 9 August 2021, the complainant asked the Commission to clarify if its initial complaint had been included in the multiple complaint.

5. On 30 August 2021, the Commission indicated that there would not be individual updates related to the multiple complaint and that, should the complainant want to provide information related to the matter, it should refer to the reference for the multiple complaint, CHAP(2013)01917.

6. On 8 September 2021, following a letter sent by the complainant, the Commission again provided the complainant with a link to its dedicated webpage.

7. On 16 March 2022, the complainant provided the Commission with a list of the members of the association concerned by the abuse arising from the use of successive fixed-term employment contracts in the Spanish public sector.

8. On 31 March 2022, the Commission informed the complainant that its initial complaint went beyond the scope of the multiple complaint. In addition, the Commission had mistakenly understood the complainant’s letter of 16 March 2022 as announcing that it would submit a new infringement complaint and therefore asked the complainant to submit the new complaint by 30 April 2022, either by completing the online complaint form[4] or by filling in the standard complaint form[5].

9. On 27 April 2022, the complainant made a new complaint (‘the second complaint’) to the Commission about the abuse of successive fixed-term employment contracts in the Spanish public sector.

10. On 8 June 2022, the Commission acknowledged receipt of the second complaint, which was registered under reference CHAP(2022)01380.

11. On 26 July 2022, the Commission replied to the complainant. Amongst other things, it reiterated that the complainant’s initial complaint went beyond the scope of the multiple complaint and was never included in it. As regards the complainant’s second complaint, the Commission explained that it was already examining, in the context of the multiple complaint, the potential abuse raised by the complainant in its second complaint. As a result, the Commission informed the complainant of its intention to close the case registered under reference CHAP(2022)01380 and gave it a four-week deadline to submit any new information that might be relevant for the re-assessment of the case. In addition, the Commission provided the complainant with a link to its dedicated webpage in order to allow it to follow the steps taken in the context of the multiple complaint.

12. On 30 August 2022, since the complainant did not make use of the possibility to submit any new information that might be relevant for the re-assessment of the case, the Commission proceeded with the closure of the case.

13. On 4 October 2022, the complainant turned to the European Ombudsman.

The inquiry

14. In its complaint to the Ombudsman, the complainant contended that the Commission was wrong to dismiss the concern it raised in its initial complaint concerning the breach of the principle of non-discrimination of fixed-term workers by Spain. The complainant also contended that the Commission provided contradictory information about the status of its two complaints, and that it had failed to conclude its assessment of the multiple complaint within a reasonable timeframe.

15. The Ombudsman opened an inquiry into the information provided by the Commission to the complainant about the status of its two complaints.

16. In the course of the inquiry, the Ombudsman received the reply of the Commission to the complaint.

Arguments presented to the Ombudsman

17. The complainant argued that, in its reply of 30 August 2021, the Commission said that its initial complaint would be included in the multiple complaint. By subsequently informing the complainant, that the initial complaint went beyond the scope of the multiple complaint and was not included in the multiple complaint, the Commission provided contradictory information.

18. The complainant contended that the Commission acted wrongly by closing the second complaint. The complainant claimed that, since the subject of its second complaint was related to the multiple complaint, the Commission should have included the second complaint in the multiple complaint.

19. In its reply to the Ombudsman, the Commission explained that no new individual complaint had been added to the multiple complaint since 2013, when the Commission launched an EU Pilot dialogue[6] concerning the complaint. In addition, the Commission said that, once the multiple complaint procedure is applied and since access to the dedicated webpage containing relevant information on multiple complaints is public, it is not necessary to add new individual complaints to multiple complaints.

20. The Commission said that it had not told the complainant that its initial complaint had been added to the multiple complaint. According to the Commission, the initial reply received by the complainant, containing a link to the dedicated webpage containing relevant information on multiple complaints, was in line with the replies given by the Commission to other individual complainants who made new complaints following the application of the multiple complaint procedure and the opening of the EU Pilot dialogue in 2013. The Commission contended that the complainant had misunderstood the initial reply.

The Ombudsman's assessment

21. Once the Commission has decided to apply a multiple complaint procedure and has therefore registered the individual complaints it has received under a single reference, there is no rule requiring it to add to the multiple complaint subsequent new individual complaints whose subjects partially or fully relate to the subject of the multiple complaint.

22. Based on the information included in the complaint, it appears that the Commission did not tell the complainant that its initial complaint would be added to the multiple complaint. The Commission merely indicated that it had already received a large number of complaints relating to the alleged abuse of fixed-term employment contracts in the Spanish public sector, which had been registered under a single reference CHAP(2013)01917. In addition, the Commission provided the complainant with a link to its dedicated webpage, so the complainant could follow the steps taken in the context of the multiple complaint.

23. The Ombudsman finds that the Commission’s replies to the complainant were reasonable and in line with the replies given to other complainants who submitted related infringement complaints after the application of the multiple complaint procedure and the opening of the EU Pilot dialogue in 2013.

24. As regards the status of the second complaint, the Ombudsman considers that the Commission provided the complainant with clear information on how it handled the complaint. The Commission explained that it was already examining the matter, in the context of the multiple complaint, and provided a link to its dedicated webpage so the complainant could follow the steps taken by the Commission in the context of the multiple complaint. The Commission also gave the complainant the opportunity to comment on its position before closing the case, even though the complainant did not make use of that possibility. Therefore, the Ombudsman finds that how the Commission dealt with the complainant’s second complaint was reasonable.

25. However, it would have been clearer if the Commission had explicitly informed the complainant that, although his initial complaint was partially related to the multiple complaints procedure, it would not be added to the procedure.

26. Based on the above, the Ombudsman finds no maladministration in this case.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[7]:

There was no maladministration by the European Commission.

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

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 20/04/2023

 

[1] Where the Commission receives multiple infringement complaints concerning the same issue, it may decide to deal with these complaints collectively through a single procedure: the multiple complaints procedure. In such cases, it attributes a single reference to the procedure. https://commission.europa.eu/about-european-commission/contact/problems-and-complaints/complaints-about-breaches-eu-law/how-make-complaint-eu-level_en#acknowledgementsofreceiptofmultiplecomplaints

[2] They referred to Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:01999L0070-19990710.

[3] https://commission.europa.eu/content/decisions-multiple-complaints_en

[4] https://ec.europa.eu/assets/sg/report-a-breach/complaints_en/

[5] https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fcommission.europa.eu%2Fsystem%2Ffiles%2F2023-02%2Fcomplaint-form_en.docx&wdOrigin=BROWSELINK

[6] The EU Pilot is a mechanism for informal dialogue between the Commission and the Member State concerned on issues relating to potential non-compliance with EU law, aimed at resolving the matter before formally opening an infringement procedure.https://ec.europa.eu/internal_market/scoreboard/_archives/2014/07/performance_by_governance_tool/eu_pilot/index_en.htm

[7] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions.