Strasbourg, 10 January 2006

Dear Mr T.,

On 10 November 2004, you lodged a complaint with the European Ombudsman against the European Commission. Your complaint concerns the alleged failure on the part of the Commission to handle with due diligence the infringement proceedings carried out by the institution in connection with your two formal complaints concerning the rights of minority shareholders under Spanish law. On 23 December 2004, you wrote to me, thanking my services for their acknowledgement of receipt of your complaint, and enclosed additional information.

On 16 December 2004, I informed the President of the Commission of this complaint and asked him to submit an opinion. Following a request on 6 April 2005 to extend the deadline for the reply, the Commission sent me its opinion on 15 April 2005, which I forwarded to you with an invitation to make observations. On 5 and 7 May 2005, you sent me your observations.

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

THE COMPLAINT

The facts of the case according to the complainant are, in summary, as follows:

Complaint 1687/2000/JMA

On 14 December 2000, the complainant lodged a previous complaint with the Ombudsman against the Commission, which was registered under file number 1687/2000/JMA. The complaint concerned the alleged failure on the part of the Commission to handle properly a formal complaint that the complainant had submitted on 7 September 1999. In his complaint, the complainant alleged that several provisions of the Spanish Law on corporations contravened Directive 77/91/EEC concerning the safeguards for the protection of members of companies(1).

In his complaint to the Ombudsman, the complainant explained that, on 7 September 1999, he had submitted a formal complaint to the Commission complaining against the incorrect implementation of the Directive into Spanish law. Despite having submitted a duly completed standard complaint form, the institution neither acknowledged receipt nor treated it as a complaint. In the course of the Ombudsman's inquiry, however, the institution reassessed the allegations made by the complainant, and as a result of this new evaluation agreed to register the complaint (reference 2001/4849) and to start an inquiry into the problem. The Ombudsman considered that these actions by the Commission were satisfactory and he therefore closed the case on 23 April 2003.

Complaint 3369/2004/JMA

On 10 November 2004, the complainant wrote again to the Ombudsman complaining against the Commission's failure to deal properly with two infringement proceedings opened pursuant to Article 226 EC in relation to two similar complaints that he had submitted to the Commission in 2001 (reference 2001/4849) and 2003 (reference 2003/5251). The Ombudsman declared the new complaint admissible, registered it under reference number 3369/2004/JMA, and opened an inquiry.

In his new complaint, the complainant argued that, despite informal assurances given to him by the Commission services regarding the forthcoming dispatch of a reasoned opinion to the Spanish authorities in connection with his complaint 2001/4849, no action had yet been taken. He also alleged that, as regards his second complaint 2003/5251, the Commission had failed to take action for two years, despite the assurances given by its services that a letter of formal notice was to be sent shortly to the Spanish authorities. The complainant enclosed with his complaint copies of his correspondence with the Commission, in which he underlined the seriousness of the problem for shareholders, and asked the institution to respond to the problem and take the necessary actions towards the Spanish authorities.

The complainant alleged, in summary, that the Commission has not handled with due diligence the infringement proceedings which it opened in connection with two formal complaints he had submitted concerning the failure of the Spanish legislation to recognise the rights granted to minority shareholders under Community law (reference numbers: 2001/4849 and 2003/5251).

THE INQUIRY

The Commission's opinion

In its opinion, the Commission described the specific actions which its services had undertaken in response to each of the two formal complaints lodged by the complainant.

As regards the first complaint lodged in 2001 (reference 2001/4849), the Commission noted that the responsible services (Directorate General Market and Services, DG MARKT) informally told the complainant on 7 September 2004 of their intention to propose that the Commission should send a reasoned opinion to the Spanish authorities. The Commission noted that the responsible services could not have given assurances that this type of initiative would be adopted within a certain deadline, since this is a decision which only the College of Commissioners can take, following a proposal from the responsible services which should, in turn, have been approved by the other Commission departments, the private office of the responsible Commissioner as well as the other Commissioners' private offices.

On 20 September 2004, the responsible Commission services in DG MARKT received yet another letter from the complainant dated 11 September 2004. Once the document was translated, it was taken into consideration for the final analysis of the case with a view to drafting the reasoned opinion. On 8 November2004, DG MARKT received another communication from the complainant which had to be translated and required further analysis.

The Commission explained that, having completed the analysis of all information, it decided to deliver a reasoned opinion on 22 December 2004. The letter was sent to the Permanent Representation of Spain on 5 January 2005.

As regards the handling of complaint 2003/5251, the Commission explained that, following the analysis and translation of the complainant's letter, it was registered in December 2003. In an informal communication to the complainant dated 8 November 2004, the responsible Commission services, DG MARKT, explained that they intended to propose to the Commission that a letter of formal notice be sent to the Spanish authorities in connection with this complaint. The Commission services noted, however, that any formal decision could only be adopted by the Commission, once all necessary formalities had been complied with. The complainant was therefore aware that the Commission was actively assessing his complaint with a view to deciding on the opening of an infringement proceeding. As a result of this evaluation, the Commission decided on 22 December 2004 to deliver a letter of formal notice. The letter was in fact delivered to the Permanent Representation of Spain on 5 January 2005.

From a more general perspective, the Commission explained that, in relation to both complaints, DG MARKT had to work in close collaboration with the translation service in order to be able to conduct a proper assessment of the many submissions received, both from the complainant and from the responsible authorities of the Member State. In this regard, the Commission noted that, since 2001, it had received a large number of submissions from the complainant, including one of his books on the problem, with approximately 350 pages. While not every page had to be translated, the responsible services had to get a thorough understanding of the content of the document. The translation of the relevant documents, as well as the need to evaluate them, had an impact on the planning and timing of the case.

The Commission noted that, on 19 February 2004, its services asked the complainant to minimize the amount of further information that he might send, in order to expedite the handling of the case.

Even though it is not an allegation made in the complaint to the Ombudsman, the Commission also mentioned in its opinion that the complainant had requested access to the exchange of letters between its services and the Spanish authorities. The institution explained that it had refused the request on grounds of confidentiality.

The Commission concluded by stressing that, in its view, and given the circumstances of the case, it considered that its services had handled both infringement proceedings with due diligence and that, in doing so, they have complied with the relevant rules, namely the provisions of its Communication on relations with complainants in infringement cases(2).

The complainant's observations

In his observations, the complainant repeated the allegations made in his complaint.

The complainant underlined that had the Commission acted promptly in relation to his complaints, he would not have had to waste his time forwarding additional information to the responsible services. In his view, it is unjustified that, in the case of complaint 2001/4849, which was registered by the Commission's Secretary-General in September 2001, a reasoned opinion was only delivered on 5 January 2005. Similarly the complainant pointed out that for complaint 2003/5251, despite the fact that the registration of the case took place in December 2003, the letter of formal notice to the Member State was only delivered on 5 January 2005.

THE DECISION

1 The Commission's alleged failure to deal with the complaints with due diligence

1.1 The complainant alleges that the Commission did not handle with due diligence the infringement proceedings which it opened in connection with two formal complaints he had submitted concerning the failure of the Spanish legislation to recognise the rights granted to minority shareholders under Community law (reference numbers: 2001/4849 and 2003/5251). The complainant refers, in particular, to the fact that, despite the assurances given to him by the Commission services regarding the forthcoming dispatch of both a reasoned opinion (concerning his complaint 2001/4849) and a letter of formal notice (concerning his complaint 2003/5251), no action had been taken.

In his observations, however, he notes that these communications were finally dispatched to the Spanish authorities on 5 January 2005, even though this action took place long after he had lodged his complaints with the Commission, in September 2001 and December 2003, respectively.

1.2 The Commission argues that, following the proposals made by the responsible services and subsequently endorsed by the College of Commissioners, a reasoned opinion (concerning complaint 2001/4849) and a letter of formal notice (concerning complaint 2003/5251) had both been delivered to the Spanish authorities on 5 January 2005. The Commission points out that the services dealing with the file could not have assured the complainant that these actions would be adopted within a certain deadline, since this is a decision which only the College of Commissioners can take following a proposal from the responsible services which, in turn, must have been approved by the other Commission departments, the private office of the responsible Commissioner as well as the other Commissioners' private offices.

On a more general note, the Commission notes that the long time it took for its services to deal with the cases submitted by the complainant were due to the need to work closely with the translation service in order to assess the many extensive submissions received from both the complainant and the responsible authorities of the Member State. The Commission explains that the first complaint was lodged in 2001 and the second was registered in December 2003.

The Commission considers that, given the circumstances of this case, its services handled both infringement procedures with due diligence and that, in doing so, they complied with the relevant rules, namely the provisions of its Communication on the relations with complainants in infringement cases [henceforth, “the Communication”](3).

1.3 The Ombudsman notes that the complainant's allegation of lack of due diligence on the part of Commission is based both on the length of time that the Commission took to deal with the cases and on breach of assurances that, according to the complainant, were given to him by the Commission services concerning the impending delivery to the Spanish authorities of a reasoned opinion in connection with his complaint 2001/4849 and a letter of formal notice regarding his complaint 2003/5251.

1.4 As regards the assurances, the Ombudsman presumes (since no evidence has been provided of assurances in writing) that the complainant refers to oral statements. The Ombudsman notes that the complainant has not provided detailed information concerning the names of the persons giving such assurances, nor the dates when they were given. In these circumstances, the Ombudsman considers that there is not sufficient evidence to justify further inquiries into possible maladministration.

1.5 As regards the duration of the Commission's handling of complaint 2003/5251, it appears from the available information that the Commission registered the case in December 2003 and that it delivered a letter of formal notice to the Spanish authorities on 5 January 2005. The Commission took, therefore, the decision to open infringement proceedings slightly more than one year from the date on which the case was registered.

The Ombudsman notes that the Communication provides as follows:

As a general rule, Commission departments 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 one year from the date of registration of the complaint by the Secretariat-General.(4)

In view of the fact that the normal one year deadline was only slightly exceeded and that the Commission has offered a reasonable explanation (the need for extensive translation of documents), the Ombudsman finds no maladministration by the Commission in relation to of the length of time taken to deal with complaint 2003/5251.

1.6 As regards the Commission's handling of complaint 2001/4849, the Ombudsman understands the complainant’s allegation to concern the length of time taken by the Commission to issue a reasoned opinion, following the sending of a letter of formal notice to the Spanish authorities.

The Ombudsman notes that the Commission’s Communication on relations with the complainant in respect of infringements of Community law specifies neither a normal time limit for the investigation of complaints following the issuing of a letter of formal notice, nor the information to be given to complainants in the period after such a letter has been sent. The Ombudsman points out, however, that Article 41 (1) of the Charter of Fundamental Rights of the European Union states that "(e)very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union". The Ombudsman has carefully studied the case law of the Community courts concerning the discretion that the Commission enjoys in handling infringement cases. The Ombudsman takes the view that the case law does not exclude the application of the principles of good administration to relations between the Commission and complainants in the period following the sending of a letter of formal notice. The Ombudsman, therefore, considers that the Commission should respect the principles of good administration in relations with the complainant in the period following the sending of a letter of formal notice. A further remark to this effect will be made below.

In the present case, following the opening of an inquiry by the Ombudsman, the Commission proceeded to address a reasoned opinion to the Spanish authorities in relation to complaint 2001/4849 on 5 January 2005. The Ombudsman does not, therefore, consider it necessary to inquire further into whether the Commission respected the principles of good administration in the handling of complaint 2001/4849 in the period between the sending of the letter of formal notice and the issuing of the reasoned opinion.

2 Conclusion

In view of the results of his investigation, the Ombudsman considers that no further inquiries into this complaint are justified. He therefore closes the case.

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

FURTHER REMARK

The Ombudsman notes that the Commission’s Communication on relations with the complainant in respect of infringements of Community law specifies neither a normal time limit for the investigation of complaints following the issuing of a letter of formal notice, nor the information to be given to complainants in the period after such a letter has been sent. The Ombudsman points out, however, that Article 41 (1) of the Charter of Fundamental Rights of the European Union states that "(e)very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union". The Ombudsman has carefully studied the case law of the Community courts concerning the discretion that the Commission enjoys in handling infringement cases. The Ombudsman takes the view that the case law does not exclude the application of the principles of good administration to relations between the Commission and complainants in the period following the sending of a letter of formal notice. The Ombudsman, therefore, considers that the Commission should respect the principles of good administration in relations with the complainant in the period following the sending of a letter of formal notice.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent; OJ L 26, 31.01.1997, p.1.

(2) Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (COM(2002) 141 final); OJ C 244, 10.10.2002, p.5.

(3) See supra note 2.

(4) Supra note 2, point 8 ("Time limit for investigating complaints"), Annex.