Strasbourg, 22 February 2005

Dear Mr X.,

On 14 May 2004, you made, in your capacity as managing director of the Italian company Y, a complaint to the European Ombudsman against the European Commission. Your complaint was received on 9 June 2004.

On 19 July 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 19 November 2004, and I sent it to you for your observations on 26 November 2004. On 3 December 2004, a telephone conversation took place between my services and your legal representative, who asked to be sent a copy of the Commission's opinion, which had been already sent to you by post on 26 November 2004. The requested document was sent to your legal representative by fax on 3 December 2004. On 14 December 2004, your legal representative sent, on your behalf, observations on the Commission's opinion.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

Background

The Sardinian Regional Law No 20 of 15 May 1951, as amended by Law No 15 of 11 July 1954 and Law No 11 of 4 June 1988, established a fund for the granting of loans to shipping companies intending to build, purchase, convert or repair vessels.

On 29 October 1993, the Italian company Y lodged a complaint with the Commission concerning the above-mentioned aid scheme.

On 24 June 1996, the Commission informed the Italian authorities that it had decided to initiate the procedure provided for in Article 93(2) of the EC Treaty in respect of the aid scheme set up by the Region of Sardinia. By decision of 21 October 1997 (98/95/EC), the Commission concluded that the aid scheme in question, which constituted State aid within the meaning of Article 92(1), was unlawful and incompatible with the common market.

The Italian Republic and the company "Sardegna lines" brought an action under Article 230(1) EC before the Court of Justice of the European Communities for the annulment of the Commission's decision 98/95/EC. In its judgement of 19 October 2000 in joined cases C-15/98 and C-105/99, the Court of Justice annulled the decision of the Commission on the ground of an insufficient statement of reasons. The Court took the view that the Commission's decision 98/95/EC did not contain any reasons explaining why the aid to Sardinian shipowners adversely affected competition.

The present complaint

Following the Court's judgement, Y. wrote to the Commission on 30 June 2001. Y asked the Commission to take a new decision about the aid granted by the Region of Sardinia, to declare it unlawful and incompatible with the common market and to request the Italian Republic to recover the relevant amount from each beneficiary.

By letters of 5 December 2001, 6 February and 18 March 2002, Y asked the Commission to be informed about the situation of its case.

On 29 April 2002, Y sent a further letter to the Commission in which it stressed that the aid system was still in force and requested the institution to intervene. On 18 October 2002, and in the absence of a reply from the Commission, Y wrote a new letter in which it asked to be informed about the situation of its case and to be given the name of the official responsible for the procedure.

In its reply of 29 October 2002, the Commission informed Y that the letter of 18 October 2002 had been registered as a new complaint, under reference number 2002/5212.

On 10 March 2003, the Commission informed Y that the conditions to start an infringement procedure against Italy were not met.

By letter of 31 March 2003 to the Commission, Y pointed out that the aid scheme established by the region of Sardinia had already been examined by the Commission which had taken the decision that it was unlawful and incompatible with the common market.

Y wrote further letters to the Commission on 24 November 2003, 29 January, 13 February and 8 March 2004, in which it basically asked the institution to adopt a new decision concerning the aid scheme which is still in force in the region of Sardinia.

In his complaint to the Ombudsman, the complainant, who is the managing director of Y, alleged that the Commission: (i) had failed to adopt a new decision on the merit of the aid scheme granted by the region of Sardinia; (ii) had failed to react to the several requests made by Forship s.p.a to adopt a new decision; and (iii) had not respected the principles laid down in the Code of good administrative behaviour in its relationship with Y, because the Commission: (a) had failed to reply to the letters sent by Y between 30 June 2001 and 20 March 2002; (b) had failed to communicate promptly the name of the person responsible for the proceedings as requested by Y; (c) had replied to the letter sent by Y on 29 April 2002 only six months later; and (d) had failed to reply to the letter sent by Y on 8 March 2004.

The complainant claimed (i) that the Commission should adopt a new decision confirming in substance its decision of 21 October 1997; (ii) that in case the Commission decided not to adopt a new decision, it should give reasons; and (iii) that in its relationship with Y the Commission should act in accordance with the principles laid down in the Code of good administrative behaviour.

THE INQUIRY

The European Commission's opinion

In its opinion on the complaint, the Commission stated that the analysis of the relevant dossier was still ongoing and that it envisaged to adopt a new decision in which all the elements forwarded by the complainant in his correspondence would be taken into account. The Commission apologised for the delay in replying to the complainant's correspondence and put forward that on 14 September 2004 it had finally replied to the complainant's letter of 8 March 2004. The Commission also regretted the delay in giving the name of the person responsible for the dossier which had been requested by the complainant.

The Commission promised to inform the complainant of any future development in the case, in accordance with Article 20 of Regulation No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty(1).

On 1 October 2004, the complainant had acknowledged receipt of the Commission's letter of 14 September 2004 and thanked the institution.

The complainant's observations and claims

Observations on the Commission's opinion were sent by the legal representative of the complainant who stated that Y had taken note of the fact that the Commission had acknowledged the delay which occurred in the course of the examination of the relevant dossier as well as the commitment taken by the institution in its letter of 14 September 2004 concerning the adoption of a new decision. According to Y, the Ombudsman could close his inquiries on the present case. Y thanked the Ombudsman for his action in relation with this complaint.

THE DECISION

1 The complainant's allegations

1.1 Following the judgement of the Court of Justice of 19 October 2000 in joined cases C-15/98 and C-105/99 in which the Court annulled the Commission's decision 98/95/EC of 21 October 1997 concerning aid granted by the Region of Sardinia to shipping companies in Sardinia, Y, an Italian company, asked the Commission to take a new decision about the aid granted by the Region of Sardinia and to declare it unlawful and incompatible with the common market.

1.2 In his complaint to the Ombudsman, the complainant, the managing director of Y, alleged that the Commission: (i) had failed to adopt a new decision on the merits of the aid scheme granted by the Region of Sardinia; (ii) had failed to react to the requests made by Forship s.p.a to adopt a new decision; and (iii) had not respected the principles laid down in the Code of good administrative behaviour in its relationship with Y, because the Commission: (a) had failed to reply to the letters sent by Y between 30 June 2001 and 20 March 2002; (b) had failed to communicate promptly the name of the person responsible for the proceedings as requested by Y; (c) had replied to the letter sent by Y on 29 April 2002 only six months later; and (d) had failed to reply to the letter sent by Y on 8 March 2004.

The complainant claimed (i) that the Commission should adopt a new decision confirming in substance its decision of 21 October 1997; (ii) that in case the Commission decided not to adopt a new decision, it should give reasons; and (iii) that in its relationship with Y the Commission should act in accordance with the principles laid down in the Code of good administrative behaviour.

1.3 In its opinion, the Commission stated that the analysis of the relevant dossier was still ongoing and that it envisaged to adopt a new decision in which all the elements forwarded by the complainant in his correspondence would be taken into account. The Commission apologised for the delay in replying to the complainant's correspondence and put forward that on 14 September 2004, it had finally replied to the complainant's letter of 8 March 2004. The Commission also regretted the delay in giving the name of the person responsible for the dossier which had been requested by the complainant.

1.4 In the observations sent by the legal representative of the complainant on his behalf, it was stated that Y took note both of the fact that the Commission had acknowledged the delay which had occurred in the course of the examination of the relevant dossier and which it regretted, as well as of the commitment taken by the institution in its letter of 14 September 2004 concerning the adoption of a new decision. According to Y, the Ombudsman could therefore close his inquiries in the present case. Y thanked the Ombudsman for his action in relation with this complaint.

2 Conclusion

On the basis of the above, no further inquiries appear to be necessary as regards the complainant's allegations and claims. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ L 83 of 27 March 1999, pp. 1-9.