Background to the complaint

1. In April 2017, the Commission received an infringement complaint that Austria’s ‘mobility grant’ scheme for funding studies in other countries of the European Economic Area and in Switzerland breaches EU law. The complaint claimed that only individuals that reside and have their centre of interests in Austria for at least five years before the admission to the studies were eligible to receive such a grant.[1]

2. In April 2018, the complainant contacted the Commission about the case and the Commission informed him that it had not been able to complete its assessment. It said that the case required an in-depth analysis, which was still ongoing. The Commission added that it would get back to the complainant as soon as it has completed its assessment.

3. The complainant wrote to the Commission again in January and September 2019. As the Commission failed to provide updates to the complainant, the Ombudsman opened an inquiry in June 2021 (case 1066/2021/MIG[2]). In July 2021, the Commission informed the complainant that his complaint was still under examination. The Commission said that the complaint raised complex legal issues. This required an in-depth and comparative investigation, as well as continued internal consultation with different sections of the Commission. As the Commission replied to the complainant, the Ombudsman closed the inquiry.

4. In February 2022, the Commission informed the complainant again that it had not been able to complete its assessment because the case required an in-depth analysis. The Commission added that it would get back to the complainant as soon as it has completed its assessment.

5. Having not received any further information from the Commission, the complainant turned to the Ombudsman for a second time in June 2023.

The inquiry

6. The Ombudsman opened an inquiry into the time taken by the Commission to handle the infringement complaint.

7. On 3 October 2023, while the inquiry was ongoing, the Commission sent its assessment of the infringement complaint to the complainant. Having received no comments from the complainant, the Commission closed the case on 7 November 2023.

8. In the course of the inquiry, the Ombudsman received the reply of the Commission on the complaint and inspected the Commission’s file on the case.

9.  The complainant submitted no comments on the Commission´s reply and on the inspection report.

The time taken by the Commission to handle the infringement complaint

Arguments presented to the Ombudsman

10. The Commission acknowledged the delay and apologised to the complainant. It said to the complainant that the “long processing time ... was due, among other reasons, to the high number of incoming complaints, the complexity of the issues at stake ..., the ever-developing relevant case-law and the announcement of changes in Austrian law, which eventually came into force”. The Commission added that it may keep complaints open when it has already brought a similar matter to the Court of Justice of the EU, when other cases are pending in the same area and when the Member State concerned is already taking steps to remedy the potential infringement.

11. The Commission further informed the complainant that, because Austria had amended its legislation in June 2022 and removed the residence requirement, it would close the case. The Commission referred to 24 judgments issued by the Court of Justice on the matter between 1969 and 2019[3] which influenced the Austrian legislator to amend the law. It said that “where the Court has already established that a certain rule/practice is not in line with EU law, the Commission relies, in the first place, on the national courts to uphold EU law in the Member States, in the second place, on the national legislator to recognise and remedy the non-compliance and, in the third place, on its own enforcement action, should the first two not bear any results.”

12. In its reply to the Ombudsman, the Commission further said that addressing infringements of EU law by Member States is a lengthy process, which is influenced by different factors, such as the complexity of the issues at stake, the ever-developing case-law and the announcement of changes in national law. These factors have an impact on the time and resources necessary to research, document and take a final decision on a case.

13. The Commission pointed out that the Austrian legislator acknowledged the likely non-conformity of the residence requirement with EU law, and that this was why it amended the legislation.

14. The Commission further acknowledged that its communication with the complainant could have been more detailed and could have included more regular updates. It committed to communicate updates more frequently and clearly in future.

The Ombudsman's assessment

15. The right to move and reside freely within the EU and the right to equal treatment are fundamental EU values.[4] In its Communication EU law: Better results through better application[5], the Commission rightly identifies cases concerning citizens’ fundamental freedoms (freedom of movement) as a matter of priority.[6] As the national legislation at stake may have adversely affected these freedoms and rights, it appears that the Commission should have dealt with it as a priority case, in accordance with the approach set out in its Communication.

16. The evidence provided to the Ombudsman shows that the infringement complaint was brief and to the point. The Commission did not seek any clarifications from the complainant and the complainant did not contribute to the Commission´s delay, for example by sending additional material or submissions. Thus, the delay in this case cannot be attributed to the complainant or to the complexity of the material provided by him.

17. Although the Ombudsman specifically requested the Commission to explain in detail the reasons for the time taken, the Commission provided only general explanations without clarifying how any of the issues it mentioned influenced the handling of this specific case. In the course of the inquiry, the Ombudsman inquiry team also asked the Commission to provide its file for inspection. Regrettably, the file provided by the Commission did not contain any evidence - such as internal notes, internal emails, correspondence with Member State authorities - that would clarify how the Commission analysed and handled the complaint during the six-and-half-year period. In response to a follow-up request by the Ombudsman inquiry team, the Commission confirmed that there were no such documents.

18. Had the Commission decided at any given point in time to suspend the case because of legislative developments in Austria or because of legal proceedings before the Court of Justice, the Commission would surely have some internal records of such a significant procedural step (for example, an internal note or internal emails analysing the situation). As a matter of good administration, EU institutions should keep adequate records concerning administrative procedures.

19.  In the absence of such evidence, the Ombudsman cannot confirm whether the Commission took any action on the complaint, and whether it dealt with the complaint actively and without unnecessary delays.[7] The evidence provided by the Commission does not demonstrate that it followed the case closely and carefully throughout the years.[8]

20. In any event, the Ombudsman does not find the Commission’s arguments convincing for the following reasons.

21. EU institutions are required to act without undue delay and within a reasonable time frame.[9] The Commission undertakes to take a decision on infringement complaints, in principle, within one year.[10]  

22. The Commission received the infringement complaint in April 2017 and did not conclude the initial assessment until November 2023. The Commission exceeded the one-year time limit by five-and-a-half years. Such a significant delay would be justified only if the Commission provided compelling reasons to explain it.[11]

23. Regarding the argument that the delay was partially down to the amount of complaints the Commission received, the Commission did not provide any evidence to demonstrate that it had an exceptionally high caseload (force majeure), which would justify a delay of five-and-a-half years in a priority area.

24. Although the complexity of a case may contribute to the time needed to handle it, this also cannot justify a delay of five-and-a-half years. Furthermore, the Commission did not explain why it considers that the matter is complex. The Commission´s file does not contain any evidence showing that the Commission considered the matter complex. As set out above, the file contains no analysis at all of the matter or the relevant case-law. Thus, nothing suggests that the issue before the Commission was factually complex or that it required complex inquiries into the situation in Austria. Rather, the case concerned one legislative provision.

25. The Ombudsman is also not convinced that the matter at stake was particularly complex from a legal perspective. The infringement complaint concerned freedom of movement and discrimination based on residence, an issue that arises regularly. The long list of Court cases provided by the Commission illustrates this point. Moreover, the Commission indirectly confirmed this when it said in its reply that “where the Court has already established that a certain rule/practice is not in line with EU law, the Commission relies” on the national courts and the national legislator to address the issue. If this is what the Commission did in this case, it must have considered that the Court’s approach was clear and well established. The Commission should have said so to the complainant instead of repeating to him that the case was complex and required further analysis.

26. The Ombudsman accepts that case-law developments influence the time taken by the Commission to deal with infringement complaints. However, unlike in other cases before the Ombudsman[12], the Commission did not refer to any specific case before the Court that could explain the long delay in this case. The Commission referred to rulings of the Court issued between 1969 and 2019. Even assuming that the most recent court case[13] may have contributed to the delay in this case, the Commission provided no evidence showing that it intentionally decided to await a specific court ruling to be able to assess this infringement complaint.

27. The Commission did not explain why the amendment of the legislation in June 2022 prevented it from concluding its assessment between April 2017 and June 2022. It appears that the relevant legislative procedure did not start until April 2022. The Commission did not demonstrate, for example, that it had been in contact with Austrian authorities in order to affect legislative change. It also did not say why it did not complete its assessment once Austria amended its legislation, but closed the case only in November 2023.

28. The Ombudsman acknowledges that the Commission has discretion in how it handles infringement complaints.[14] However, the Commission must exercise its discretion in accordance with its own rules. Thus, it must decide either to issue a letter of formal notice or close the case. Discretion does not allow the Commission to abstain from dealing with a complaint for a long time.[15]

29. Moreover, even assuming that the Commission may have had good reasons for its course of action, it should have informed the complainant about this in a citizen-friendly and transparent way. The Commission seems rather to have sent him standardised letters repeating that the case was complex and that it required an in-depth analysis, which had not yet been completed. It never mentioned the more detailed reasons outlined above.

30. The Ombudsman considers that the failure by the Commission to complete its assessment of the infringement complainant within a reasonable time, and its failure to provide evidence to justify the delay, constitutes maladministration.

31. However, the Commission acknowledged the delay in this case, apologised, completed its assessment and closed the case. Moreover, the Commission undertook to communicate updates more frequently and clearly in similar future cases. As such, there would be no purpose served by the Ombudsman making a recommendation in this case.

32. In the context of another recent inquiry, the Ombudsman reminded the Commission that it should provide complainants with specific information why the handling of a complaint requires more time, rather than providing general, standard information that a complaint raises complex issues.[16] The Ombudsman trusts that the Commission will live up to its commitment to communicate updates more frequently and clearly in future.

Conclusion

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

There was maladministration in the delay by the European Commission in completing its assessment of the infringement complaint.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 15/05/2024

 

Annex - judgments of the Court of Justice to which the European Commission referred

Judgment of the Court of Justice of 15 October 1969, Württembergische Milchverwertung-Südmilch-AG v Salvatore Ugliola, 15/69: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=87831&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3927446

Judgment of the Court of Justice of 30 September 1975, Anita Cristini v Société nationale des chemins de fer français, 32/75: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=88979&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3927508

Judgment of the Court of Justice of 13 July 1983, Forcheri v Belgium, 152/82: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=91999&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3927586

Judgment of the Court of Justice of 20 June 1985, Office national de l’emploi (ONEM) vs Deak, 94/84: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=92941&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3927639

Judgment of the Court of Justice of 21 June 1988, Lair v Universität Hannover, 39/86: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=94592&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3927694

Judgment of the Court of Justice of 18 June 1987, Centre public d’aide sociale v Lebon, 316/85: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=94346&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3927732

Judgment of the Court of Justice of 13 November 1990, Carmina di Leo v Land Berlin, C-308/89: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=96898&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3927337

Judgment of the Court of Justice of 26 February 1992, Bernini v Minister van Onderwijs en Wetenschappen, C-3/90: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=97241&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3929887

Judgment of the Court of Justice of 27 November 1997, Meints v Minister van Landbouw, C-57/96: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=43548&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3930035

Judgment of the Court of Justice of 12 May 1998, Maria Martinez Sala v Freistaat Bayern, C-86/96: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=43841&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3930748

Judgment of the Court of Justice of 8 June 1999, Meeusen v Hoofddirectie van de Informatie Beheer Groep, C-337/97: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=44232&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3930926

Judgment of the Court of Justice of 7 July 2005, Commission v Austria, C-147/03: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=59877&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3930999

Judgment of the Court of Justice of 18 July 2007, Geven v Land Nordrhein-Westfalen, C-213/05: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=62748&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931072

Judgment of the Court of Justice of 18 July 2007, Hartmann v Freistaat Bayern, C-212/05: https://curia.europa.eu/juris/document/document.jsf?text=&docid=62747&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931351

Judgment of the Court of Justice of 11 September 2007, Schwarz and Gootjes-Schwarz v Finanzamt Bergisch Gladbach, C-76/05: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=62604&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931415

Judgment of the Court of Justice of 11 September 2007, Hendrix v Raad van Bestuur, C-287/05: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=62601&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931528

Judgment of the Court of Justice of 23 October 2007, Morgan and Bucher v Landrat des Kreises Düren, C-11/06: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=70711&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931158

Judgment of the Court of Justice of 10 September 2009, Commission v Germany, C-269/07: https://curia.europa.eu/juris/document/document.jsf?text=&docid=78190&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931257

Judgment of the Court of Justice of 14 June 2012, Commission v Netherlands, C-542/09: https://curia.europa.eu/juris/document/document.jsf?text=&docid=123844&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931627

Judgment of the Court of Justice of 20 June 2013, Giersch and others v Luxembourg, C-20/12: https://curia.europa.eu/juris/document/document.jsf?text=&docid=138699&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931795

Judgment of the Court of Justice of 18 July 2013, Prinz v. Region Hannover and Seeberger v. Studentenwerk Heidelberg, C-523/11 and C-585/11: https://curia.europa.eu/juris/document/document.jsf?text=&docid=139756&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3931992

Judgment of the Court of Justice of 26 February 2015, Martens v Minister van Onderwijs, C-359/13: https://curia.europa.eu/juris/document/document.jsf?text=&docid=162536&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3932110

Judgment of the Court of Justice of 14 December 2016, Bragança Linares Verruga and Others v Ministre de l´Enseignement supérieur, C-238/15: https://curia.europa.eu/juris/document/document.jsf?text=&docid=186224&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3932289

Judgment of the Court of Justice of 10 July 2019, Aubriet v Ministre de l´Enseignement supérieur, C-410/18: https://curia.europa.eu/juris/document/document.jsf?text=&docid=216042&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3932429

 

[1] Article 56d paragraph 3 Z 1 Study Funding Act (Studienförderungsgesetz) 1992: https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40162496/NOR40162496.pdf

[2] https://www.ombudsman.europa.eu/en/decision/en/144874 

[3] See the Annex to this Decision.

[4] Articles 20, 21 and 45 of the EU Charter of Fundamental Rights, Articles 18, 20(2)(a) and 21(1) of the Treaty on the Functioning of the European Union (TFEU).

[5] Communication from the Commission — EU law: Better results through better application, C/2016/8600, OJ C 18, 19.1.2017: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG&toc=OJ%3AC%3A2017%3A018%3ATOC

[6] Section 3 of the Communication.

[7] See the Ombudsman’s decision in case 163/2023/PB, 24 July 2023: https://www.ombudsman.europa.eu/en/decision/en/172850

[8] See the Ombudsman’s decision in case 425/2017/ANA, 2 March 2018, point 29: https://www.ombudsman.europa.eu/en/decision/en/90387

[9] Article 41 of the Charter of Fundamental Rights of the EU

[10] “As a general rule, the Commission 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 1 year from the date of registration of the complaint, provided that all required information has been submitted by the complainant. Where this time limit is exceeded, the Commission will inform the complainant in writing.” Point 8 of the Annex to Communication from the Commission — EU law: Better results through better application, C/2016/8600, OJ C 18, 19.1.2017: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG&toc=OJ%3AC%3A2017%3A018%3ATOC

[11] See, in particular, the Ombudsman’s decisions in cases 2029/2022/EIS, 19 December 2023, point 18, with further references: https://www.ombudsman.europa.eu/en/decision/en/179452,

369/2018/JAP, 13 September 2019, point 20-22: https://www.ombudsman.europa.eu/en/decision/en/119020 and 731/2012/JN, 4 April 2014, point 33 (with further references): https://www.ombudsman.europa.eu/en/decision/en/53985

[12] See, in particular, the Ombudsman’s decision in case 2029/2022/EIS.

[13] The most recent was issued on 10 July 2019: C-410/18 Aubriet v Ministre de l´Enseignement supérieur. https://curia.europa.eu/juris/document/document.jsf?text=&docid=216042&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3932429

[14] Judgment of the Court of 14 February 1989, Starfruit v Commission, 247/87: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0247

[15] See the Ombudsman’s Special Report to the European Parliament in case 3453/2005/GG: https://www.ombudsman.europa.eu/en/special-report/en/411

[16] See the Ombudsman’s decision in case 2029/2022/EIS, 19 December 2023, point 25.