Strasbourg, 8 August 2006

Dear Mr D.,

On 19 February 2005, you made a complaint to the European Ombudsman concerning an alleged failure by the European Commission to respond to a complaint about breaches of Community law.

On 11 April 2005, I forwarded the complaint to the President of the European Commission.

On 25 April 2005, you sent me further information and comments relating to your complaint.

The Commission sent its opinion on 5 July 2005 and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.

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

To avoid misunderstanding, it is important to recall that the EC Treaty empowers the Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the 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 Commission.

THE COMPLAINT

The complainant stated that he had made a complaint to the European Commission by e-mail on 13 January 2005, but that he had received no confirmation of receipt or other reply. He enclosed a copy of the e-mail.

In his e-mail to the Commission, the complainant, a Croatian citizen living in Germany with a permanent residence permit, stated that his same-sex partner, a Russian, had been expelled from Germany because of two minor offences. The expulsion had been unsuccessfully challenged in court proceedings in Germany. In the e-mail to the Commission, the complainant had asked the Commission to take action to make it possible for himself and his partner to live together. He had referred to German law and a number of European Union measures and fundamental rights instruments, arguing that Community law and fundamental rights were being breached(1).

The complainant alleged that the Commission had wrongly failed to reply to his complaint against Germany of 13 January 2005.

The complainant claimed that he should receive a reply to his complaint of 13 January 2005.

The complainant claimed that the Commission should take measures to enable his partner to obtain residence in Germany.

As regard the complainant's second claim, it was not clear whether the complainant's infringement complaint in fact concerned the application of Community law, and whether, therefore, the Commission could investigate it within its Article 226 complaint procedure. This claim was therefore rejected by the Ombudsman on the basis of Article 195 of the EC Treaty ("insufficient grounds"). The Commission and the complainant were informed accordingly, the latter furthermore being invited to submit any evidence to demonstrate that his complaint to the Commission did in fact concern the application of Community law.

Following the opening of the Ombudsman's inquiry, the complainant sent, on 25 April 2005, the Ombudsman a further e-mail in which he basically repeated his references to the legal instruments previously mentioned in his e-mail to the Commission of 13 January 2005.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments.

The complainant claimed to have sent an e-mail message to the Commission on 13 January 2005. Unfortunately, the Commission had no trace of this message, and could not confirm having received it. It regretted any inconvenience caused to the complainant.

Having received the Ombudsman's request for an opinion, the Commission registered, on 28 April 2005, the complainant's e-mail of 13 January 2005. The Directorate-General for Justice, Freedom and Security replied to the complainant's e-mail on 11 May 2005.

In its letter of 11 May 2005, the Commission explained to the complainant that it could not pursue the matter because the situation described by the complainant was not covered by Community law. It explained that Directive 2003/86/EC on the right to family reunification(2) (referred to by the complainant) gave the Member States the competence to treat, in the relevant implementing legislation, registered partners as spouses, but that it did not oblige them to do so. With regard to the fundamental equality principles referred to by the complainant, the Commission stated that these do prohibit, in Community law, discrimination on the basis of sexual orientation, but do not prohibit Member States from adopting specific entry and residence conditions for third country nationals.

The complainant's observations

The Commission's opinion was forwarded to the complainant for observations. No observations were received by the Ombudsman.

THE DECISION

1 Introductory remarks

1.1 The complainant stated that he had made an infringement complaint to the European Commission. In his e-mail to the Commission, the complainant, a Croatian citizen living in Germany with a permanent residence permit, stated that his same-sex partner, a Russian, had been expelled from Germany because of two minor offences. The expulsion had been unsuccessfully challenged in court proceedings in Germany. In the complainant's e-mail to the Commission of 13 January 2005, the complainant had asked the Commission to take action to make it possible for himself and his partner to live together. He had referred to German law and a number of European Union measures and fundamental rights instruments, arguing that Community law and fundamental rights were being breached(3). In his complaint to the Ombudsman, the complainant alleged that the Commission had wrongly failed to reply to his complaint against Germany of 13 January 2005. He claimed a reply to his complaint of 13 January 2005. He also claimed that the Commission should take measures to enable his partner to obtain residence in Germany.

1.2 As regard the complainant's second claim, it was not clear whether the complainant's infringement complaint in fact concerned the application of Community law, and whether, therefore, the Commission could investigate it within its Article 226 complaint procedure. This claim was therefore rejected by the Ombudsman on the basis of Article 195 of the EC Treaty ("insufficient grounds"). The Commission and the complainant were informed accordingly. Following the opening of the Ombudsman's inquiry, the complainant sent the Ombudsman, on 25 April 2005, a further e-mail in which he basically repeated the references to the legal instruments previously mentioned in his e-mail to the Commission of 13 January 2005.

1.3 In its opinion of 5 July 2005, the Commission explained that it could not pursue the matter because the situation described by the complainant was not covered by Community law. It enclosed a copy of a letter that it had sent to the complainant on 11 May 2005. In that letter, the Commission explained that Directive 2003/86/EC on the right to family reunification (referred to by the complainant) gave the Member States the competence to treat, in the relevant implementing legislation, registered partners as spouses, but that it did not oblige them to do so. With regard to the fundamental equality principles referred to by the complainant, the Commission explained that these do prohibit, in Community law, discrimination on the basis of sexual orientation, but do not prohibit Member States from adopting specific entry and residence conditions for third country nationals.

1.4 The complainant made no observations on the Commission's opinion.

1.5 In the light of the Commission's opinion and the content of its letter of 11 May 2005 to the complainant, the adequacy and propriety of which have not been challenged by the complainant, the Ombudsman considers that it is not justified to extend the scope of the present inquiry, concerning the Commission's alleged failure to reply, to the complainant's claim that the Commission should take measures to enable his partner to obtain residence in Germany.

2 Allegation of failure to reply - claim for reply

2.1 The complainant alleged that the Commission had wrongly failed to reply to his complaint against Germany of 13 January 2005. He claimed a reply to his complaint of 13 January 2005.

2.2 In its opinion of 5 July 2005, the Commission noted that the complainant claimed to have sent an e-mail message to the Commission on 13 January 2005. Unfortunately, the Commission had no trace of this message, and could not confirm having received it. The Commission regretted any inconvenience caused to the complainant. Having received the Ombudsman's request for an opinion, the Commission registered the complainant's e-mail of the complainant on 28 April 2005. The Commission's Directorate-General for Justice, Freedom and Security replied to the e-mail on 11 May 2005.

2.3 The Ombudsman received no observations from the complainant.

2.4 It follows from principles of good administration that letters to the Administration must be replied to(4). The e-mail address indicated on the complainant's e-mail of 13 January 2005 to the Commission is a correct Commission e-mail address (sg-info@cec.eu.int). It appears, therefore, that the complainant did send his infringement complaint to the Commission.

2.5 In its opinion on the complaint to the Ombudsman, the Commission stated that it could find no trace of the complainant's e-mail of 13 January 2005. It regretted any inconvenience caused to the complainant, and noted that, after having received the Ombudsman's request for an opinion, it had taken immediate action to respond to the complainant's e-mail.

2.6 Under these circumstances, it appears that the Commission has taken adequate steps in response to the complainant's allegation that the Commission had wrongly failed to reply to his complaint against Germany of 13 January 2005. The Ombudsman therefore considers that further inquiries into this matter are not justified.

3 Conclusion

It appears from the Commission's opinion that the Commission has taken adequate steps in response to the complainant's allegation that the Commission had wrongly failed to reply to his complaint against Germany of 13 January 2005. The Ombudsman therefore considers that further inquiries into this matter are not justified.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The complainant referred to the European Convention on Human rights, the EU Charter of Fundamental Rights (Article 21 on non-discrimination), Article 13 of the Treaty of Amsterdam (empowering the Council to adopt specific anti-discrimination legislation), the proposed EU Constitution and its provisions on non-discrimination; Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16; Directive 2003/86/EC on the right to family reunification, OJ 2003 L 251, p. 12; Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, OJ 2004 L 16, p. 44; Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance), OJ 2004 L 158, p. 77.

(2) OJ 2003 L 251, p. 12.

(3) The complainant referred to the European Convention on Human rights, the EU Charter of Fundamental Rights (Article 21 on non-discrimination), Article 13 of the Treaty of Amsterdam (empowering the Council to adopt specific anti-discrimination legislation), the proposed EU Constitution and its provisions on non-discrimination; Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16; Directive 2003/86/EC on the right to family reunification, OJ 2003 L 251, p. 12; Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, OJ 2004 L 16, p. 44; Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance), OJ 2004 L 158, p. 77.

(4) Cf. Article 14 of the European Code of Good Administrative Behaviour adopted by the European Parliament in its resolution C5-0438/2000 of 6 September 2001 (available on the Ombudsman's website: http://www.ombudsman.europa.eu).