Decision of the European Ombudsman on complaint 3125/2005/BB against the European Commission

Strasbourg, 7 April 2008

Dear Mr D.,

In your letter of 12 July 2005 and in your subsequent communications(1), you submitted a complaint to the European Ombudsman against the European Commission, concerning the latter's preliminary conclusion regarding your complaint lodged with it under reference number 2004/4490 about an alleged breach of Directive 84/450/EEC on misleading advertising(2).

On 8 December 2005, I asked the Commission for an opinion on one of the allegations submitted in your complaint. On the same day, I also informed you of my reasons for not opening an inquiry into your remaining allegations.

The Commission sent its opinion on 18 April 2006. I forwarded it to you with an invitation to make observations, which you sent on 2 July 2006. You completed your observations by sending additional information on 7 July 2006, 17 July 2006, 19 September 2006, 2 February 2007, 4 March 2007, 26 March 2007, 27 October 2007 and 10 November 2007 and you were regularly in telephone contact with your case-handler.

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

I apologise for the length of time it has taken to complete my inquiry.

THE COMPLAINT

The complaint may be summarised as follows:

On 3 June 2004, the complainant complained to the European Commission (complaint 2004/4490) alleging that the Trustee Savings Bank ("TSB") in Dublin had defrauded its customers between 1958 and 1993 by calculating interest on deposits in a way other than that advertised(3) and, as a result, it was in breach of Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising(4) ("the Directive"). Moreover, the complainant alleged that the Irish authorities had failed to perform their banking supervisory duty by not ending this practice and therefore had breached the Directive and, in particular, its Articles 2(2)(5) and 4(2)(6). In this regard, the complainant referred to the decision of the High Court of Ireland not to grant an interim injunction to stop misleading advertising.

On 28 June 2005, in its preliminary opinion regarding complaint 2004/4490, which was sent to the complainant, the Commission, first, argued that it could only intervene against acts or omissions attributable to a Member State and not against the behaviour of private bodies and entities (such as the TSB).

Second, the Commission explained that EU banking law was designed to ensure the freedom of establishment of credit institutions and the free provision of financial services in the EU. According to the Commission, EU banking law covers only certain elements of the banking activity for the purpose of guaranteeing financial soundness and the solvency of banks. In particular, under EU banking law, banks were free to determine the criteria for the payment of interest on deposits. Therefore, the Commission concluded that the Irish authorities did not, in any way, fail in their supervisory duties, as laid down by EU banking law, towards the TSB.

Thirdly, as regards the provisions of the Directive invoked by the complainant, the Commission stated that the responsible service at the Commission was Unit A2 Legal Affairs of its Directorate-General ("DG") for Health and Consumer Protection. DG Health and Consumer Protection had been consulted and provided the following opinion on the matter of the complaint in question:

"There was no indication in [the complainant's] communications of any actions or omissions on the part of the Irish authorities that would be in conflict with the provisions of Directive 84/450/EEC. Furthermore, it should be noted that the Commission has no power to confirm the outcome of proceedings before national courts (...)".

The Commission underlined, as a fourth point, that it is not a court of appeal and that it is for the European Court of Justice to rule on questions concerning the interpretation of Community law, for example, by means of a reference for a preliminary ruling pursuant to Article 234 of the EC Treaty from a national court in a Member State.

As a final point, the Commission confirmed that it is not responsible for the application of the provisions of the Directive in individual cases and that it has no power to intervene in disputes between consumers and undertakings. These can only be solved by the means of redress provided for under national law.

Therefore, the Commission informed the complainant that it would propose that the case be closed and invited him to submit any further information within one month of the receipt of the preliminary conclusions.

By letter of 30 June 2005, the complainant contested the correctness of the Commission's preliminary conclusion and informed the Commission of his intention to apply to the Court of First Instance under Article 230 of the EC Treaty, should it maintain its position to close his complaint.

Consequently, the Commission made internal consultations. As a result, the following communication was sent to the complainant. The relevant excerpt read as follows:

"(...) in order for there to be a breach of Directive 84/450/EEC as regards misleading advertising, it must be demonstrated that the national system established to combat misleading advertising does not correspond to the standards required by the Directive, or that the Directive has otherwise been incorrectly transposed into national law. In other words, individual cases of misleading advertising can only be examined by the competent national authorities entrusted with this task by the national legislation transposing the Directive. It is not for the Commission to review these national decisions.

In the present case, the decision of the High Court [of Ireland] not to grant an interim injunction cannot be construed as a violation of Article 4(2) of the Directive per se. Article 4(2) obliges the Member States to confer certain powers to combat misleading advertising to courts and administrative authorities, including the power to order the cessation of misleading advertising.

(...) any misleading advertising carried out be private entities such as the TSB or Lloyds TSB must be investigated by the national authorities. The Commission does not have any power to act in such cases.

In view of the above, we consider that the information provided by you does not demonstrate any infringement of Community law on the part of the Irish authorities and cannot therefore change our position. We confirm, therefore, that we shall propose that the Commission close your case.".

As regards the complainant's intention to bring an action before the Court of First Instance, the Commission informed the complainant that its letters of 28 June 2005 and 14 July 2005 did not constitute Commission decisions but were mere communications informing him of the proposal made by its relevant services (and intended to be discussed by the College of Commissioners) that his complaint should be filed for the reasons indicated in the above-mentioned letters.

In two e-mails addressed on 18 July 2005 to the Commission, the complainant informed the Commission that, although the Trustees of the TSB were the nominal owners and managers, the Bank was in fact owned by the Irish Ministry of Finance. In 2000, the Ministry of Finance sold the TSB to a company called Irish Life & Permanent. The complainant argued that the Commission was mistaken in categorising the TSB as a private entity.

On 14 November 2005, the complainant received a letter from the Commission informing him that, at its meeting of 12 October 2005, the College of Commissioners had decided to close his complaint.

He did not agree with that decision and turned to the European Ombudsman.

The Ombudsman identified the following allegation in the complaint on which he decided to open an inquiry:

"The complainant alleged that the reasons the Commission invoked in support of its preliminary conclusion on complaint 2004/4490 were illegal, and violative of the Commission's duties, under Article 226 of the EC Treaty."

THE INQUIRY

In his opening inquiry letter, the Ombudsman asked the Commission to submit the opinion on the above complainant's allegation taking into account the case-law of the Court of Justice in Case C-387/99 Commission v Germany, paragraph 42 and Case C-494/01 Commission v Ireland, paragraph 28(7). In addition, he asked the Commission to comment on the complainant's argument of 18 July 2005 that the Commission was mistaken in categorising the TSB as a private entity.

The Commission's opinion

The Commission stated, in summary, that, in his complaint 2004/4490, which was registered on 3 June 2004, the complainant argued that the TSB in Ireland defrauded its customers by calculating interest on deposits in a way other than that advertised. The complainant's two grievances were the following: (i) collusion of the Irish authorities, namely, the Central Bank of Ireland ("CBI"), the Director of Consumers Affairs ("DCA"), the Ministry of Finance and the High Court of Ireland, which were responsible for not having stopped this practice; and (ii) breach of the Directive.

By letter of 28 June 2005, the Commission communicated to the complainant the following analysis of his complaint. As regards the first grievance, the Commission found that no breach of Community law in the banking sector could be identified as EU banking law only laid down minimum requirements for the prudential supervision of banks. According to the Commission, Community law only covered certain elements of the banking activity for the purpose of guaranteeing financial soundness and the solvability of a bank. The Commission underlined that any other aspects of the banking activity, including the criteria applied by banks for the payment of interest on deposits, fell outside the scope of Community law.

As regards the alleged breach of the Directive, the Commission considered that there was no indication in the complainant's communications of any actions or omissions by the Irish authorities that would be in conflict with this Directive. Furthermore, the Commission stated that it had no power to interpret Community law.

As regards the complainant's further submissions that the failure of the High Court of Ireland to grant an interim injunction prohibiting the TSB from publishing misleading advertising, on the grounds that the awarding of damages would be an adequate remedy, constituted a breach of the Directive, the Commission took the view that it had no power to review national decisions in individual cases of alleged misleading advertising. The Directive limited itself to conferring certain powers on Member States to combat misleading advertising, including the ordering of the cessation of the advertising, but left the national authorities free to decide whether a cessation order should be issued in a specific case. According to the Commission, the breach of the Directive could be identified only in the event that the national system established to combat misleading advertising did not correspond to the standards required by the Directive. In the Commission’s view, no evidence in this regard had been provided by the complainant. By letter of 14 July 2005, the Commission's relevant services informed the complainant of this analysis and of their intention to propose the closure of the case. The Commission decided to close the case at its meeting of 12 October 2005. The complainant was informed thereof by letter of 14 November 2005.

With regard to its decision as to whether to open infringement proceedings under Article 226 of the EC Treaty, the Commission underlined that the Court of Justice had repeatedly emphasised that the Commission enjoyed a wide margin of discretion and that "it is not for the Court to decide whether that discretion was wisely exercised"(8). The Commission therefore underlined that its decision to close complaint 2004/4490 and the reasons behind this decision were within the Commission's broad discretion under Article 226 of the EC Treaty and, therefore, entirely outside the notion of "maladministration". However, in a spirit of good co-operation with the Ombudsman, the Commission agreed to address the issues raised by the Ombudsman.

Under Article 226 of the EC Treaty, the Commission was only able to verify whether the complainant's file showed any failure on the part of the Irish authorities which might have constituted a breach of Community law. Since, according to EU banking law, banks were free to determine the criteria for the payment of interest on deposits and there was no obligation for banking supervisory authorities to monitor the conduct of banks in this respect, no potential infringement of this legislation was identifiable either in the form of non-compliant national provisions, or administrative practice.

As regards the complainant's argument that the TSB was not a private entity at the time of the alleged defrauding, the Commission clarified that, as far as it knew, the TSB was currently a private entity. In any event, the complainant's allegation that the TSB was a public entity in the past was not an element which could change the Commission's conclusion, already communicated to the complainant in its letter of 28 June 2005, that there was no breach of EU banking law in his case, given that all banks, whether publicly or privately owned, are free to determine the criteria for the payment of interest.

The Commission observed that "[t]he complainant based his complaint on the fact that the High Court in Ireland had refused to grant an injunction prohibiting the TSB from using misleading advertising on the grounds that damages constituted an adequate remedy." The Commission noted, therefore, that the complainant considered this decision to be in breach of Article 4(2) of the Directive. As the said provision required the Member States to confer certain powers on courts and administrative authorities, including the power to order the cessation of misleading advertising, the Commission concluded that there could not be a breach of this provision only because an authority in a Member State had decided not to issue an injunction in an individual case. Moreover, the Commission maintained that the complainant had not invoked the existence of an "administrative practice of a consistent and general nature" contrary to the Directive, nor were there any other elements in the file which would have allowed it to conclude that the Irish authorities were applying such a practice.

The Commission underlined that it was not its role to decide whether a national provision had been violated or to adopt a position on a specific dispute between a business and a consumer.

The Commission finally argued that, given that the EU banking law was not applicable to the facts related to the complaint, neither the case-law of the Court of Justice referred to by the Ombudsman, nor the fact that the TSB was a public entity was relevant to the examination of the case. There was, furthermore, no evidence of an administrative practice which was in conflict with the Directive.

The complainant's observations

The complainant maintained his complaint arguing that the Commission had deliberately misconstrued his complaint. In summary, the complainant made the following statements. The complainant underlined that, in accordance with Article 226 of the EC Treaty, the Commission had a duty to uphold Community law and that the Court of Justice had only ruled that the Commission had a wide margin of discretion with respect to deciding whether to prosecute. Therefore, the complainant considered that it was incorrect for the Commission to suggest that its role under Article 226 of the EC Treaty was beyond judicial review. The complainant argued that the Commission was wrong to consider the TSB as a private entity(9).

The complainant further argued that the Commission was in breach of the principles of sound administration and of procedural propriety by not inviting submissions from the Irish authorities regarding their conduct before reaching its decision; and that the Commission was in breach of the European Convention on Human Rights and the legitimate expectation of depositors who had been defrauded.

The complainant also made reference to the requirement under Article 253 of the EC Treaty that the statement of reasons must be appropriate to the act at issue and must disclose, in a clear and unequivocal fashion, the reasoning followed by the institution in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review(10).

The complainant argued that the Commission fraudulently failed to note the following facts in its decision:

1. The District Court had imposed a fine of IEP 1 000 on the TSB on two counts of fraud. The District Court thus imposed the maximum amount that it was entitled to impose, due to the gravity of the offence.
2. The TSB stopped defrauding most depositors from 21 February 1993, though it appealed and later quietly withdrew decision 2004/4490.
3. The TSB had paid the advertised interest to some depositors between 1958 and 20 February 1993.

Furthermore, he argued that the Commission failed to apply the following test:

1. Had the TSB, in breach of the Directive, defrauded most depositors from 1958 to 1993 by paying less than the advertised interest rate to most of the depositors?
2. Did the Irish authorities, including CBI, DCA and the Ministry of Finance know about the TSB's deceit?
3. Was the active approval of CBI, DCA and the Ministry of Finance to defraud most depositors a breach of the Directive?
4. Was a prosecution against Ireland in the public interest and in the interest of most depositors who had been defrauded?

The complainant criticised what he called "the laissez-faire attitude" of the Commission with respect to the national authorities that were in breach of Article 226 of the EC Treaty as defeating the purpose of the Directive. The complainant was of the view that decision 2004/4490 lacked "an iota of morality or common-sense", was politically inspired to protect the TSB from going into liquidation and had no substance in law and fact. Therefore, he considered that the Commission was responsible for misfeasance and malfeasance in public office.

The complainant maintained that the Directive may be interpreted either in its literal meaning, or "as a mischief rule (i.e. what mischief it is designed to stop)", or based on the intent of the Directive. According to the complainant, the Commission failed to interpret the Directive as a mischief rule.

THE DECISION

1 Preliminary remarks

1.1 First, the European Ombudsman notes the European Commission's statement in its opinion that "its decision to close complaint 2004/4490 and the reasons behind this decision were within the Commission's broad discretion under Article 226 of the EC Treaty and, therefore, 'entirely outside the notion of maladministration'." (Emphasis added).

The Ombudsman does not understand from this statement that the Commission wished to challenge the Ombudsman's competence to deal with the present and other complaints concerning the Commission's handling of Article 226 complaints, and to assess whether the Commission had complied with its legal obligation to give reasons for its decisions. The Ombudsman finds it useful however to recall that, in his view, maladministration can also exist where a Community institution or body fails to comply with a legal rule and that, in a society governed by the rule of law, any public administration must interpret the law and follow the law correctly. In this regard, the Ombudsman has constantly emphasised that the Court of Justice is the highest authority with respect to the interpretation of Community law.

1.2 Second, the Ombudsman notes that, in his observations, the complainant made the following points: (i) the Commission was in breach of the European Convention on Human Rights and the legitimate expectation of depositors who had been defrauded; and (ii) there was an effort, at the political level, to protect the TSB from going into liquidation.

The Ombudsman considers that broadening the scope of his inquiry to include the above points made by the complainant would unduly delay a decision on the original complaint. The Ombudsman notes, moreover, that the issues raised are not entirely linked to the scope of the original complaint and, to the extent they could constitute new allegations, recalls that Article 2(4) of his Statute requires that a complaint "must be preceded by the appropriate administrative approaches to the institutions and bodies concerned". To the Ombudsman’s knowledge, the complainant does not appear to have contacted the Commission in relation to his new allegations before turning to the Ombudsman.

The Ombudsman, therefore, confines his present decision to the complainant's original allegation. The Ombudsman will however refer in his decision to other points made by the complainant in his observations which, in the overall context of the complaint, do not need to be submitted to the Commission for its separate views on them. These points are (iii) that the Commission breached the principles of sound administration and of procedural propriety by not inviting submissions from the Irish authorities regarding their conduct before reaching its decision; and (iv) that it misinterpreted the Directive.

2 The Commission's alleged illegal reasons as well as its violation of its duties to provide reasons for a decision concerning an Article 226 complaint

2.1 The complainant submitted to the Commission a complaint under Article 226 of the EC Treaty against Ireland for its alleged breaches of Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising(11) ("the Directive") . The complaint was registered under reference number 2004/4490. The complainant argued in his complaint to the Commission that the Irish authorities had failed to perform their banking supervisory duty by not reacting to the alleged misleading advertising by the TSB in Dublin. According to the complainant, the latter had defrauded its customers between 1958 and 1993 by calculating interest on deposits in a way other than that advertised(12).

The Commission came to the preliminary conclusion, in summary, that there was (i) no breach of Community law in the banking sector because the criteria applied by banks for the payment of interest on deposits fell outside the scope of Community law, and (ii) no indication in the complainant's communications of any actions or omissions by the Irish authorities that would be in conflict with the Directive.

The Commission communicated the above reasons to the complainant in its letters dated of 28 May 2005 and 14 July 2005 and closed his case.

In his complaint to the Ombudsman, the complainant alleged that the r easons the Commission invoked in support of its preliminary conclusion on complaint 2004/4490 were illegal and violative of the Commission's duties under Article 226 of the EC Treaty.

In his observations, he fleshed out the above allegation by stating that the Commission was in breach of the principles of sound administration and "of procedural propriety" by not inviting submissions from the Irish authorities regarding their conduct before reaching its decision; that it did not conduct a particular test and that it misinterpreted and/or defeated the purpose of the Directive.

2.2 In its opinion on the complaint, the Commission reiterated its reasoning, contained in the letters previously sent to the complainant, and maintained, in summary, that it was proper. It added that the complainant's submissions concerning the payment of interest on deposits by the TSB, independently of whether it was a private or State owned bank, do not fall into the scope of application of EU banking law(13) and that all banks are free to determine such criteria for payment. There was, furthermore, no evidence in the complainant's complaint to the Commission regarding an administrative practice by the Irish authorities that was in conflict with the Directive.

2.3 At the outset, the Ombudsman points out that the present complaint concerns only the alleged breach of the Directive and not of EU banking law. Therefore, the Ombudsman's assessment of this case will concern only this aspect.

2.4 Furthermore, the Ombudsman examined the answers the Commission's gave to the complainant in its letters of 28 May 2005 and 14 July 2005. He notes that only in its letter dated 14 July 2005 did the Commission refer to the breach of the Directive and explained that a breach of this Directive presupposed that it had been demonstrated that (i) the national system established to combat misleading advertising does not correspond to the standards required by the Directive, or (ii) the Directive has otherwise been incorrectly transposed into national law. It added that individual cases of misleading advertising (such as the case of the TSB, as described by the complainant) can only be examined by the competent national authorities and cannot be reviewed by the Commission. Moreover, the decision of the High Court of Ireland not to grant an interim injunction cannot be construed as a violation of Article 4(2) of that Directive per se.

2.5 The Ombudsman observes that the Court of Justice has underlined that the Directive confines itself to partial harmonisation of the national laws on misleading advertising by establishing minimum objective criteria for determining whether advertising is misleading and minimum requirements for the means of affording protection against such advertising(14). Article 2(2) of the Directive defines "misleading advertising" and Article 3 states which factors are to be taken into account in order to determine whether advertising is misleading. Moreover, Article 7 of the Directive allows the Member States to retain or adopt provisions aimed at ensuring more extensive consumer protection than that provided for under the Directive(15). More particularly, the Court of Justice has clearly underlined that "[i]t is for national courts to ascertain in the circumstances of each particular case, and bearing in mind the consumers to which the advertising is addressed, whether the latter may be misleading"(16).

In light of the above, the Ombudsman understands that the Commission has no enforcement powers and cannot intervene in individual cases concerning misleading advertising. In addition, as regards the assessment of alleged breaches of the Directive, i n the absence of any provisions of Community law on this matter, the Court of Justice has underlined that it is for the national court to determine, in light of its own national law, the percentage of consumers misled by that description or statement which would appear to it sufficiently significant to justify prohibiting its use(17). In reaching its conclusion, the national court may consider it necessary to commission an expert opinion or a survey of public opinion in order to clarify whether or not a promotional description or statement is misleading.

The Ombudsman considers that the reasoning given by the Commission and therefore its interpretation of the Directive appear to be reasonable and legally correct. No maladministration as regards this aspect of the complaint is therefore found.

2.6 As regards the alleged violation of the Commission's duties under Article 226 of the EC Treaty, the Ombudsman understands that this aspect of the complaint amounted to an allegation of failure to pursue complaint 2004/4490 by the Commission. In particular the Ombudsman notes in this respect the complainant's observations that the Commission should have (i) invited submissions from the Irish authorities before reaching its decision, and (ii) applied a particular test.

In this respect, the Ombudsman notes that the Commission may very well decide to close a case in the event that it comes to the conclusion that there was no infringement of Community law by a Member State. The Ombudsman also recognises that, according to the case law of the Community courts, even after having concluded that there was a violation of Community law, the Commission disposes of a wide margin of discretion to decide whether it is appropriate to bring an action against the Member State before the Court or whether it considers that there is no Community interest in pursuing it because national courts or authorities would be better placed to deal with the matter(18). The Ombudsman notes that, in the present case, the Commission decided to close the case because it considered that (a) there was no infringement of Community law by the Member State, (b) there were thus no grounds to justify opening a procedure for violation of Articles 2(2) and 4(2) of the Directive and (c) it should not pursue the complaint further.

In light of his finding in point 2.5, the Ombudsman considers that, in the present case, this reasoning complies with the Commission's duties under Article 226 of the EC Treaty and finds no maladministration as regards this aspect of the complaint either.

2.7 Finally, as to the complainant's argument that the failure of the High Court of Ireland to grant an interim injunction prohibiting the TSB from misleading its customers constituted a breach of the Directive, the Ombudsman observes that, in the present case, the Commission stated that there could not be a breach of the Directive only because an authority in a Member State had decided not to issue an injunction in an individual case. Subsequently, the Commission, in accordance with the established case-law of the Court of Justice, concluded that the complainant had not invoked the existence of an "administrative practice of a consistent and general nature" contrary to the Directive, nor were there any other elements in the file which would have allowed the Commission to conclude that the Irish authorities were applying such a practice.

The Ombudsman recalls that he has acknowledged, in his previous decision on complaint 480/2004/TN, the Commission's argument that the purpose of the Article 226 procedure is not to serve as an additional means of appeal or review of the judgments given by national courts and that Member States could be held responsible for the case-law of its courts only in the event that it is established that the failure to enforce Community law constitutes a generalised practice in breach of Community law(19). With regard to this aspect, t he Ombudsman considers that the Commission’s approach to the use of the Article 226 procedure to be reasonable, particularly in view of the fundamental principle of the independence of the judiciary.

No maladministration as regards this aspect of the complaint is found either.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) E-mails addressed to the Ombudsman of 11, 13, 19, 24, 29 August 2005; 7, 9, 13, 26 September 2005; 9 and 16 October 2005; 7, 15, 16 and 18 November 2005; and 5 December 2005.

(2) Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising , OJ 1984 L 250, p. 17.

(3) According to the complainant, interest was calculated on the minimum monthly balance in the account; monies, regardless of the sum, may be held for up to 60 days in the account, without earning any interest at all; and monies lodged or withdrawn attracted only 11/12th of the clearly advertised interest rate save monies lodged or withdrawn on the 21st day of any month. The complainant claimed that he was defrauded the sum of IEP 8.80.

(4) See footnote 2.

(5) Article 2(2) of Directive 84/450/EC provides that "misleading advertising” means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor."

(6) Article 4(2) of Directive 84/450/EC provides the following:

"2. Under the legal provisions referred to in paragraph 1, Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest:

- to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, misleading advertising, or

- if misleading advertising has not yet been published but publication is imminent, to order the prohibition of, or to institute appropriate legal proceedings for an order for the prohibition of, such publication, even without proof of actual loss or damage or of intention or negligence on the part of the advertiser. Member States shall also make provision for the measures referred to in the first subparagraph to be taken under an accelerated procedure:

- either with interim effect, or with definitive effect, on the understanding that it is for each Member State to decide which of the two options to select. Furthermore, Member States may confer upon the courts or administrative authorities powers enabling them, with a view to eliminating the continuing effects of misleading advertising the cessation of which has been ordered by a final decision:

- to require publication of that decision in full or in part and in such form as they deem adequate,

- to require in addition the publication of a corrective statement."

(7) See Case C-387/99 Commission v Germany [2004] ECR I-3751 and Case C-494/01 Commission v Ireland [2005] ECR I-3331. This case-law refers to the principle according to which an infringement may consist of an administrative practice contrary to Community law when such practice is, to some degree, of a consistent and general nature.

(8) Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 9.

(9) According to the complainant, though TSB was nominally owned by the Trustees for the benefit of depositors therein, its true owner was the Ministry of Finance, as was evident from the fact that the Ministry of Finance sold TSB to Irish Life & Permanent in 2000/2001. TSB was de facto and de jure a public entity between 1958 and 1993. Despite being a public entity, TSB deliberately and maliciously defrauded most depositors during the aforesaid period, in breach of the Directive.

(10) In this context, the complainant referred to Case T-93/02 Confédération nationale du Crédit Mutuel v Commission [2005] ECR II-143, paragraph 68 and the case-law cited therein.

(11) See footnote 2.

(12) See footnote 3.

(13) According to the Commission, the main legal instrument in this field is Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions, OJ 2000 L 126, p. 1 - 59.

(14) See Case C-238/89 Pall [1990] ECR I-4827, paragraph 22 and Case C-315/92 Verband Sozialer Wettbewerb ('Clinique') [1994] ECR I-317, paragraph 10.

(15) See Case C-71/02 Karner [2004] ECR I-3025, paragraphs 32-33.

(16) See, in particular, Case C-373/90 X [1992] ECR I‑131, paragraphs 15 and 16 and Case C-356/04 Lidl Belgium[2006] ECR I-8501 , paragraph 77.

(17) Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraphs 35 and 36.

(18) See for example the Ombudsman's decisions on complaints 962/2006/OV, 3453/2005/GG 995/98/OV, 480/2004/TN and 493/2000/ME, which can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).

(19) See the European Ombudsman's decision on complaint 480/2004/TN, which can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).